w w w . L a w y e r S e r v i c e s . i n



Gandhi Bhupatlal Jagjivan v/s Shah Shukhlal Varshidas Nanalal


Company & Directors' Information:- SHAH GANDHI AND CO PVT LTD [Active] CIN = U99999MH1948PTC006750

Company & Directors' Information:- GANDHI SHAH LTD. [Strike Off] CIN = U99999MH1949PLC007053

    Civil Revision 864 Of 1963

    Decided On, 19 July 1967

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE A.R. BAKSHI & THE HONOURABLE MR. JUSTICE V.R. SHAH

    For the Appearing Parties: D.D. Vyas, H.P. Sompura, Advocates.



Judgment Text

A.R. BAKSHI, V.R. SHAH

(1) In this revision application the petitioner is the original plaintiff and the opponents are the original defendants Nos. 1 and 2 in Civil Suit No. 91 of 1961 in the Court of the Civil Judge Senior Division Surendranagar. The petitioner is a tenant In respect of two shops. He entered into a partnership for business with the opponents Nos. 1 and 2 and permitted that partnership to do its business in the shops taken on rent by him. The partnership has been dissolved by a deed of dissolution dated September 23 1958 and according to the terms of this deed of dissolution the opponents agreed to pay Rs. 10800.00being the amount due to the petitioner on accounts and to hand over possession of the suit shop which is one of the two shops. This amount of Rs. 10800/_ was made payable by instalments and the first instalment of Rs. 2000/was agreed to be paid on Ashad Sud 1 of Samvat Year 2015 and the remaining amount was to be paid on Maha Vad 30 of Samvat Year 2016. The document also provided that if the payment of Rs. 2000/was not made on the due date the petitioner would be entitled to take possession of the suit shop from the opponents. Admittedly default has been committed in making the payment as agreed in the deed of dissolution and therefore the petitioner filed a suit for possession of the shop from the opponents. He valued the relief for possession at Rs. 240/being the annual rent of the suit premises and paid Court fees thereon. The opponents raised a question about under-valuation of the suit for the purpose of Court fees. The learned trial Judge held that the case fell within sec. 6(v) of the Court Fees Act 1959 and that Court fee should be paid on the market value of the suit shop and accordingly he appointed a Commissioner to ascertain the market value. The petitioner filed Civil Revision Application No. 843 of 1961 against that order of the learned trial Judge which was disposed of by this High Court (Mody J. as he then was) on March 20 1963 The learned Judge came to the conclusion that the petitioner has in effect asked for a declaration of his title on the basis of the Deed of dissolution and for the consequential relief of possession of the suit property. The learned Judge therefore held that the suit is one which is governed by the provisions of sec. 6(iv)(d) read with third proviso of the Bombay Court Fees Act 1959 The order of the trial Judge was therefore set aside and the matter was sent back to the learned trial Judge with a direction to decide the question as to whether the petitioner has properly valued the suit and paid full ad valorem Court fees leviable for such a suit on the basis of title of the subject-matter.

(2) When the matter went back to the trial Judge he came to the conclusion that the title of the subject-matter was worth the market value of the suit shop and he fixed that market value at Rs. 7000/and directed the petitioner to pay necessary Court fees on that amount. Against this order the plaintiff has filed this revision application. It was heard by Divan J. and the following two questions have been referred to us by Divan J. for our answers:-

(1) Whether in a suit for declaration of title in which the sole consequential relief or one of the consequential reliefs is a relief for possession in accordance with sec. 6(iv)(d) third proviso of the Bombay Court Fees Act 1959 the valuation put by the plaintiff must be accepted by the Court ? If not

(2) Whether the fact that the plaintiff claims under a title which is not the title of a full owner makes any difference to the valuation of the subject-matter of the suit for the purposes of Court fees ?

(3) Sec. 6(iv) of the Bombay Court Fees Act 1959 consists of sub clauses (a) to (j). Sec. 6 begins with the words The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows. Thereafter follow the various sub-sections and sub-sec. (iv)(d) reads as follows:-

6 (iv) (d). In suits for declaration in respect of ownership of nature of tenancy title tenure right lease freedom or exemption from or non-liability to attachment with or without sale or other attributes of immovable property such as a declaration that certain land is personal property of the Ruler of any former Indian State or Public trust property or property of any class or community-one fourth of ad valorem fees leviable for a suit for possession on the basis of title of the subject matter subject to a minimum fee of eighteen rupees and seventy-five naye paise:- Provided that if the question of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee of fifteen rupees whichever is less:-

Provided further that where the defendant is or claims under or through a limited owner the amount of fee shall be one sixth of such ad valorem fee subject to the minimum fee specified above:-

Provided also that in any of the cases falling under this clause except its first proviso when in addition any consequential relief other than possession is sought the amount of fee shall be one half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee:-

At the end of the last clause (j) in sub-sec. (iv) of sec. 6 the following paragraph appears:-

In all suits under clauses (a) to (i) the plaintiff shall state the amount at which he values the relief sought with the reasons for the valuation :-

The opening words of sec. 6 make it clear that in suits described in the various sub-clauses of sec. 6 of the Bombay Court Fees Act the Court fees to be paid on the plaint is to be computed in the manner laid down in each sub-clause of sec. 6. In suits which fall under sub-clause (d) of clause (iv) of sec. 6 primary basis for computing the Court fees payable on the plaint is ad valorem fee leviable for a suit for possession on the basis of title of the subject-matter. Having laid down the primary basis for computation an attempt is made by the Legislature for equitable reduction in the amount of Court fees payable ad valorem on that value in the various parts of sub-clause (d) of clause (iv). There are three provisos to this sub-clause (d) of clause (iv). Sub-clause (d) standing by itself refers to suits for declaration simpliciter. This sub-clause (d) embraces within itself various kinds of suits for declaration as mentioned therein; but sub-clause (d) standing by itself does not envisage any other relief. If such a declaration alone is the relief asked for by the plaintiff he is required to pay only 1/4th of the ad valorem fees. The first proviso refers to a case where the relief asked for is for a declaration for exemption from or non-liability of attachment with or without sate. In such cases the amount of fee is to be the ad valorem fee according to the value of the property sought to be protected from attachment. The second proviso refers to a case where the defendant to the suit is one who is or claims under or through a limited owner. In such a case the plaint should be stamped with Court fees of the value of 1/6th of such ad valorem fee that is 1 of the ad valorem fee leviable for a suit for possession on the basis of title of the subject-matter mentioned in the main portion of sub-clause (d). The first part of third proviso refers to a case where in addition to the declaration mentioned in sub-clause (d) the plaintiff has further asked for any consequential relief other than the relief for possession of the subject-matter. In such a case the plaintiff is liable to pay 1/2 of the ad valorem fee. The later portion of this proviso refers to a case where in addition to declaration consequential reliefs asked for include a relief for possession; in such a case the amount of Court fees payable on the plaint is to be the full ad valorem fee. The ad valorem fee referred to in the second and third proviso means ad valorem fee referred to in the main portion of sub-clause (d). In the first proviso the Legislature has stated in specific terms that the ad valorem fee should be according to the value of the property sought to be protected from attachment. Therefore when the first proviso is concerned it does not refer to the ad valorem fees described in the main part of sub-clause (d). Reading therefore sub-clause (d) with the later portion of the third proviso it follows that the plaintiff is required to pay the whole of the ad valorem fee leviable in a suit for possession on the basis of the title of the subject-matter. We may note that the sub-clause (d) contains a provision for payment of minimum Court fees and the first proviso and the second proviso also contain provision for minimum Court fees. But we are not concerned in this reference with that part of sub-clause (d). It is clear from a reading of the provisions of sec. 6(iv)(d) along with third proviso that the petitioner in this case-as also every plaintiff whose suit is governed by the provisions of sec. 6(iv)(d) of the Bombay Court Fees Act-is required to pay Court fee on his plaint calculated ad valorem on the basis of the title of the subject-matter. The plaintiff must therefore state in the plaint firstly the subject matter in respect of which he has asked for the relief of declaration as well as the consequential relief including the relief for possession. He must then state what the title of that subject-matter is. He must then value that title of the subject-matter as in a suit for possession thereof; and having arrived at that value he must pay full ad valorem fee in accordance with the table given in the Bombay Court Fees Act. In the whole of sec. 6(iv)(d) there is nothing to indicate that the plaintiff can arbitrarily value the relief asked for by him in a plaint for the purposes of paying Court fees. The provisions of sec. 6(iv)(d) leave no doubt that the plaintiff is bound to value the title of the subject-matter as if in a suit for possession and pay the Court fee ad valorem on the basis of that value.

(4) The paragraph at the end of sub-clause (j) governs all the sub clauses (a) to (i) of sub-clause (iv). Therefore this provision also applies to sec. 6(iv)(d) and it is necessary for us therefore to consider whether this provision has any bearing on the question of computation of Court fees payable on a plaint falling within sec. 6(iv)(d). This provision only casts a duty on the plaintiff to state the amount at which he values the relief sought along with the further liability to state the reasons for the valuation. This provision has no relevance to the question of computing the Court fees payable on the plaint. The opening words of sec. 6 lay down that Court fees on various kinds of plaints in various kinds of suits which fall under the different sub-sections of that section should be computed in the manner mentioned in the various sub-sections; and sub-sec. (iv)(d) contains within itself the manner in which the plaintiff is required to compute the Court fees payable on the plaint falling under that sub-section. It is clear therefore that the provision at the end of clause (j) does not at all relate to the computation of Court fees and it does not require the plaintiff to state the amount of Court fees on the amount at which he values the relief sought. There is nothing in that provision to show that the plaintiff is thereby given an option or an opportunity to compute the amount of Court fees payable on the plaint on the basis of such valuation stated by him. On a plain reading of sec. 6(iv)(d) with the third proviso and the paragraph at the end of clause (j) it appears to us that the plaintiff must follow a particular procedure and must give certain necessary details before he determines the amount of fees payable on the plaint. The plaintiff has therefore no right to put an arbitrary valuation for the purposes of computing the Court fee payable on the plaint. The plaintiff must state the value of the title of the subject matter as if he were filing a suit for possession and thereafter he may seek to apply relevant provisions of clause (d) in order to arrive at the correct amount of Court fees payable on the plaint. It is open to the Court therefore to find out whether the plaintiff has correctly followed the procedure prescribed in sec. 6(iv)(d) and the Court is not bound to accept the valuation put by the plaintiff.

(5) Mr. Vyas who appears for the petitioner urged that by reason of the last portion at the end of clause (i) the Legislature has sought to preserve for the plaintiff the same position as obtained under the Court Fees Act 1870 which was in force prior to the coming into operation of the Bombay Court Fees Act 1959 It is not disputed that suits for declaration and consequential relief were described in sec. 7(iv)(c) of that Act of 1870. Sec. 7(iv)(c) in so far as material for our present consideration ran as follows:-

7 The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- xx xx xx xx (c) to obtain a declaratory decree or order where consequential relief is prayed. xx xx xx xx according to the amount at which the relief sought is valued in the plaint or memorandum of appeal with a minimum fee of rupees five in the ease of suits falling under clause (e). In all such suits the plaintiff shall state the amount at which he values the relief sought.

On an interpretation of this provision in the Act of 1870 the Bombay High Court had consistently held that for the purpose of computing Court fees the plaintiff has a right to value the relief at any figure he chose and the Court cannot question the same. One such decision of the Bombay High Court is to be found in Rajdhar Buva v. Umakant Bhimrao A. I. R. 1958 Bombay 310. It was held therein that in a suit under sec. 7(iv) of the Court Fees Act a plaintiff is entitled to put his own valuation upon the reliefs which he seeks and it is not open to a Court to consider the correctness or appropriateness or otherwise of the valuation as placed by the plaintiff. It was urged by Mr. Vyas that by enacting sec. 6(iv)(d) of the Bombay Court Fees Act 1959 no change is made in so far as the right of the plaintiff to put his own valuation for the purposes of Court fees was concerned. His argument was that the option was available to the plaintiff on account of the last portion of sec. 7(iv) of the Act of 1870 and that the said last portion is re-enacted in the Act of 1959 and hence the option which was available to a plaintiff under the Act of 1870 is continued to him under the Act of 1959. In our opinion this contention is devoid of any substance. Under sec. 7(iv) of the Court Fees Act 1870 there were express words to the effect that the computation of Court fees should be made according to the amount at which the relief sought is valued in the plaint. It was on account of the existence of those words in sec. 7(iv) that the Court took a view that it is left to the sweet will of the plaintiff to put any valuation he chose on the relief he sought in the plaint and that it was not open to the Court to consider correctness or appropriateness of such value put by the plaintiff. This option was available to him not under the last portion of sec. 7(iv) but by virtue of the provision just preceding the last portion. Sec. 6 of the Court Fees Act 1959 corresponds to sec. 7 of the Court Fees Act 1870 But the whole arrangement has been substantially altered. Where as there were express words in sec. 7(iv) leaving it to the discretion of the plaintiff to value his suit for the purposes of Court fees as he liked he is now compelled to value his relief in the plaint in the manner laid down in sec. 6(iv) itself and no discretion is therefore now left to the plaintiff. The last paragraph at the end of sec. 7(iv) of Act of 1870 is no doubt re-enacted at the paragraph at the end of sub-clause (j) in Act of 1959; but in our opinion that portion had nothing to do with computation of the Court fees while the Act of 1870 was in operation and it has also no relevance to computation of Court fees under the Act of 1959 We therefore answer the first question referred to us in the negative that is that the Court is not bound to accept the valuation put by the plaintiff.

(6) The second question referred to us depends upon the interpretation of the words title of the subject-matter occurring in the phrase leviable for a suit for possession on the basis of title of the subject_ matter. The word subject-matter is also used in sec 6(v) of the Act which corresponds to sec. 7(v) of the Act of 1870. While dealing with the provisions of sec. 7(v) it has been laid down by the Calcutta High Court in the case of Hafis Md. Fateh Nasib v. Haji Abdul Rub and others A.I.R. 1954 Calcutta 101 that The subject-matter of the suit means the interest of the plaintiff in the land or building or garden. Where in a suit brought to recover possession of property the plaintiff is seeking the relief only as a mutwalli his interest in the disputed properties will be much narrower than the interest of full owner. Hence the interest claimed by the plaintiff as a mutwalli cannot be valued at the same figure as his interest as a full owner. However the Calcutta High Court in a later case of Manik Chand Mondal and another v. Sudhir Kumar Mondal and another A.I.R. 1960 Calcutta 420 held that the subject matter of the suit was the right of the licensor as owner of the property and therefore Court fees should be paid ad valorem on the value of the full ownership of the property. The same view was taken by the Bombay High Court in the case of Ratilal v. Chandulal 49 Bombay Law Reporter page 552. These cases illustrate a conflict of judicial opinion about interpretation of the words value of the subject-matter one view being that the subject matter of a suit for possession was the house land or garden itself; while the other view was that the subject matter was the plaintiffs right or interest in the house land or garden. If it were necessary to construe the relevant phrase in sec. 6(v) of the Act of 1959 this conflict of interpretation may perhaps require consideration. However in the instant case we are required to construe a different phrase namely title of the subject-matter. The word title according to dictionary means claim or right. If subject matter were also to be interpreted as right claimed by the plaintiff in the property it would amount to mere repetition of the meaning of the word title. If the word subject-matter were interpreted to mean the property itself the title of the subject-matter would mean the plaintiffs right or claim in the property itself. In our opinion by using the phrase title of the subject-matter the Legislature has expressed a clear intention that the value should be of the right or claim of the plaintiff in the property. If the right or claim is of full ownership the value should be of the rights of full ownership in respect of the property; if the right or claim is less than full ownership the value should be of that restricted or limited ownership.

(7) It would be inequitable to ask the plaintiff who has a small portion of the full rights of ownership that is who has a right smaller than the right of full owner to pay Court fees on the basis of the full ownership of the property. It appears to us tha

Please Login To View The Full Judgment!

t by using the phrase title of the subject-matter in sec. 6(iv)(d) the Legislature has made its intention clear. The question then arises whose right or claim of the subject matter ? and necessarily the answer should be that it is the plaintiffs right or claim of the subject-matter. Even if the word subject-matter were interpreted to mean the object of the litigation that is either land building or garden still the title of subject-matter would mean the right or claim put forward by the plaintiff in respect of that land building or garden or the property of which the possession is asked for. The word title in the context of the other provision of sec. 6(iv)(d) would connote plaintiffs interest or claim in the property of which possession is asked for. The interpretation sought to be put upon this word title by the learned Assistant Government Pleader was that it means full ownership and according to him in all such suits which fall under sec. 6(iv)(d) the plaintiffs must pay Court fees on the basis of full ownership of the property even though in fact their right or claim to the possession of the property may be on the basis of a restricted title falling short of full ownership. The interpretation put forth by the learned Assistant Government Pleader would work inequitably and unjustly towards the plaintiffs who do not claim full ownership of the property and no authority or rule of interpretation was shown to us by the learned Assistant Government Pleader in support of his submission. For the reasons stated above and having regard to the dictionary meaning of the word title we come to the conclusion that the phrase title of the subject-matter would mean such right or claim of the plaintiff in the subject-matter of the suit on the basis of which he claims possession of the property. Our answer to the second question is therefore that when a plaintiff claims under a title which is not the title of a full owner the value of the subject-matter of the suit for the purposes of Court fees should be based on the value of such restricted title of the plaintiff and not upon the basis of full ownership of the property. No order as to costs. Answer accordingly.
O R