Gauhati High Court
Md. Hafiz Alias Hafizuddin Ahmed vs Mustt. Noorjahan on 10 July, 1987
Equivalent citations: AIR1989GAU3, AIR 1989 GAUHATI 3
Author: K.N. Saikia
Bench: K.N. Saikia
JUDGMENT Manisana, J.
1. This revision petition arises from an order of 24th June, 1981 of the Sadar Munsiff Gauhati passed in T.S. No. 18 of 1979.
2. The opposite party as a plaintiff brought the suit (T.S. No. 18 of 1979) against the defendant-petitioners and others in the Court of the learned Sadar Munsiff Gauhati claiming the following reliefs : --
"1. Declaring right, title, interest and possession of the plaintiff on the suit land and confirmation of possession of the plaintiff therein as co-sharer on the land under Dags Nos. 564 and 565 under Patta No. 285 at village Japorigog in Beltola Mouza.
2. to pass preliminary decree of partition of the suit land.
3. to pass final decree making partition of the suit land after taking account of the land under Patta No. K.R 285.
4. to declare that the gift deed No. 6516 of 1972 executed and registered by the defendant No. 1 in favour of defendants Nos. 2, 3, 4 and 5 is not binding on the plaintiff on the share of the plaintiff on the suit land as co-sharer.
5. to declare that the sale deed by which the pro forma defendant No. 8 purchased the land under Dags Nos. 565 and 564 of Patta No. 285 and the other of partition obtained by the defendant No. 8 in partition case No. 15 of 1978-79 with the order of a separate Patta No. 422 from the suit land is invalid, null and void and the plaintiff is not bound by such partition.
6. to declare that the sale deeds by which the defendant No. 1 sold lands to the pro forma defendants Nos. 7, 8, 9, 10, 11 and 12 and the permissive possession given by the defendants Nos. 1, 2, 3, 4 and 5 to the pro forma defendants Nos. 13, 14 and 15 are not binding on the plaintiff in the share of her land as co-sharer of the suit land.
7. to issue permanent injunction restraining the defendants Nos. 1, 2, 3, 4, 5 and any other contesting pro forma defendants from interferring with the possession of the plaintiff of the suit land.
8. to decree the costs of the suit and any other relief as the Court may deem fit and proper."
3. The plaintiff brought the suit on the footing that she is one of the co-owners of the land having an area of 28 B OK 11 L under K. P. Patta No. 285 situated at Japorigog at Beltola Mouza in the district of Kamrup. Out of 28 B OK 11 L of the land, her share is 7 B OK 23/4 L (The suit land is the land comprising the said 7 B OK 23/4 L): She has been in possession of the suit land as her share. But the defendant 1, out of 28 B OK 11 L of the land, had made a gift of 20 B-4 K -- 6 L to his sons, the defendants 2 to 5, under a registered deed without delivery of possession fraudulently in order to deprive the plaintiff of her share, and had sold 2B-4K-OL to the defendants 7 to 12 under different. sale deeds illegally without her knowledge. The government had acquired 2B-2K-2L from the share of the defendant 1 and he received the compensation awarded. The defendant 8 got the land purchased by him mutated and partitioned in the revenue office (Court). Therefore, after the said gift, sales and acquisition, there remained 2 Bighas of land out of 28 B-OK-11L whereas her share is 7B-OK-23/4 L and as such the sales and gift are illegal.
4. The contesting defendants contended that the suit was undervalued and no proper court-fees had been paid; and that the value for the purpose of jurisdiction and court-fees would be Rs. 1,40,000/- which was the market value of the suit land at the relevant time; and that the learned Munsiff had no jurisdiction to try the suit. Therefore, the learned Munsiff framed the following issue :
"Whether this Court has got pecuniary jurisdiction to try the suit ?"
5. The learned Munsiff has held that the suit was governed by Section 7(iv)(b), (c) and (d) of the Court-fees Act; and that the Court has no right to interfere in the option of the plaintiff to value his claim; hence this petition.
6. The question which arises for our consideration is whether the plaintiff has correctly valued the suit for the purpose of jurisdiction.
7. Out of the various reliefs claimed by the plaintiff, the plaintiff has made a distributive valuation for partition and injunction only. Paragraph 31 of the plaint runs as follows:
"That the partition is valued at Rs. 2,400/-and the court-fee is paid thereon. Court-fee of Rs. 22/- is paid for declaration. The injunction is valued at Rs. 200/- and the court fee is paid thereon."
The statement in this paragraph shows that out of the several reliefs claimed by plaintiff, the plaintiff has valued the relief for partition at Rs. 2,400/- and that for injunction at Rs. 200/-, as substantive or distinct reliefs by making distributive valuation. The Court below has held that the relief for partition has been valued under Section 7(iv)(b) and that for injunction has been valued under Section 7(iv)(d). It may be noted that in a suit exclusively governed by Section 7(iv)(c), no question of distributive valuation arises and a suit will not be one under Section 7(iv)(b), (c) and (d) merely because declaration, partition, confirmation of possession and injunction have been prayed for. It will depend upon the facts and circumstances of each case. Under Section 7(iv)(c), in a suit for declaratory decree and consequential reliefs, court-fees are payable on the amount at which the relief sought is valued. The value so fixed will be value for the purpose of jurisdiction under Section 8 of the Suit Valuation Act.
8. Out of the four declarations prayed for, one of them is declaration of the title to the suit land and other three are for declaring the sale deeds, the gift deed and revenue partition as illegal As regards the relief of partition, a question arises whether Section 7(iv)(b) is applicable to the present case. Section 7(iv)(b) is applicable to a suit to enforce a right to share in "joint family property". We are leaving the question, namely, whether the expression 'joint family property' under Section 7(iv)(b) connotes property owned by the members of a Mahomedan family, open as we can dispose of the matter without dealing with the question. Under the Mahomedan law, the heirs of a Mahomedan succeed to his estate as tenants-in-common in specific shares (See AIR 1940 PC 215, Mahomeddally v. Safiabai). The basic distinction between "joint tenants" and "tenants-in-common" is that in the case of the 'joint tenants' there is unity of title and possession and while in the case of 'tenants-in-common' though there is unity of possession, there is ho unity of title. Every suit to enforce a right to share in joint family property (assuming under Section 7(iv)(b) applies to the Mohamedan) is not necessarily governed by Section 7(iv)(b). In the present case, the case of the plaintiff is that after the gift, the sales and acquisition, as already stated, there remained 2 Bighas of land out of 28B-OK-11L whereas she claims that her share is 7B-OK-23/4 Ls of land, and that the sales and gift affected her right. Therefore, if the plaintiff fails to obtain the declarations, the plaintiff will not be entitled to the relief of partition and other reliefs, as claimed by her. Therefore, granting of other reliefs depends upon the declarations sought. The plaintiff has sought the declarations to remove the hurdles in order that there may not be any obstruction to obtain other reliefs. In such a situation, the declarations are the foundation for the other reliefs and the other reliefs are necessary consequence of the granting of the declarations. For the reasons stated, the suit will be governed by Section 7(iv)(c) of the Court-fees Act and Section 7(iv)(b) and (d) will not be applicable.
9. The next question which arises for consideration is whether the Court has jurisdiction to enquire into reasonableness of the option of the plaintiff to place any valuation whatsoever on his relief. Sections 7A to 7D of the Court-fees Act have been inserted in the Court-fees Act by the Assam Amendment Act. Section 7-A runs as follows : --
"Enquiry as to valuation of suit -- If the Court is of the opinion that the subject matter of any suit has been wrongly valued, it may revise the valuation and determine the correct valuation, and may hold such inquiry as it thinks fit for such purpose".
The expression "subject-matter'' has not been defined in the Act. Black's Law Dictionary gives the meaning of 'subject-matter' as: --
"Subject-matter. The subject, or matter presented for consideration; the thing in dispute; the right which one part claims as against the other, as the right to divorce; of ejectment; to recover money; to have foreclosure. Flower Hospital v. Hart, 178 Okl 447, 62 p. 2d 1248, 1252. Nature of cause of action, and of relief sought".
The question then is, -- "Whether the expression subject-matter in Section 7-A includes relief ?" The object of the Section 7-A is to revise the valuation and determine the correct valuation of a suit. As already stated, the value of the relief fixed under Section 7(iv)(c) is the value of the suit for the purpose of jurisdiction. Therefore, to interpret that the expression 'subject-matter' includes relief or reliefs, it would not defeat the object of Section 7A. Accordingly, it is concluded that the expression 'subject-matter' includes relief or reliefs. Although the plaintiff has an absolute right or option to place any valuation whatever on his relief under Section 7(iv)(c), a reading of Section 7-A together with Section 7(iv)(c) shows that the Court has jurisdiction to inquire into whether the amount at which the plaintiff values the relief sought is reasonable. The learned Munsiff has not considered this aspect of the matter. Therefore, his findings as regards Section 7(iv)(b) and (c), (d) cannot be upheld.
10. For the foregoing reasons, the present suit will be governed by Section 7(iv)(c) of the Court-fees Act and the Court has jurisdiction to enquire into reasonableness of the valuation put by the plaintiff under Section 7(iv)(c). The plaintiff is directed to amend the plaint placing the valuation under Section 7(iv)(c) and the trial Court may exercise his jurisdiction as provided under Section 7-A, if need be so. The petition is partly allowed and the impugned order is set aside to the extent indicated above. No order as to costs.
Saikia, Acting, C.J.
11-14. I have had the advantage of going through the precise and logical judgment prepared by my learned brother Manisana Singh, J. while agreeing with it, I would like to add my own reasons for the decision.
15. The plaintiff, Mustt. Nurjahan Begum instituted the T.S. No. 18 of 1979 for declaration of right, title, interest and possession of the plaintiff on the suit land, partition and permanent injunction restraining the defendants from interfering with her possession.
16. Averments in the plaint are that the plaintiff, the defendant No. 1, Md. Hafiz and the pro forma defendant No. 6, Mustt. Nooratan Begum were brother and sisters being son and daughters of late Mansur Ali, son of late Asir Mahammad. Asir Mahammad was the owner of land under Patta No. 2 (New)/1372 (Old) in 1904-05. During the resettlement operation in 1923-28 patta No. 2 was changed into patta No. 189 with addition of some more land and the old dags under patta No. 2, namely, 503, 599, 600, 1127 and 1247 were also changed into new dags Nos. 890 (9 B. 4 K. 10 L.), 891 (13 B. 3 K. 1 L), 892 (1 B. 3 K. 5 L), 895 (1 B. OK. OL), 897(1 B. 4 K. 15 L) total - (28 B. O K. 11 Ls.). After death of Asir Mahammad the entire land was mutated in the name of his wife Mustt Nasiban Musalmani by right of inheritance by order of S.D.C on 6-ll-19 (sic). On death of Nasiban Musalmani the said land vested in the plaintiff, the defendant No. 1 and the pro forma defendant No. 6 their father Mansur having predeceased Asir Mahammad. The plaintiff claimed that she had been possessing the suit land since then as a co-sharer by inheritance with defendant No. 1 and pro forma defendant No. 6. During resettlement operation in 1957-64 the patta No. 189 was changed to 285 and dag Nos. changed to 561, 564, 565, 734 and 735 with the same areas as shown in Schedule 'A' to the plaint. While in the stage of patta No. 189 the defendant No. 1 sold 4 Kathas of the suit land of dag No. 890 from his share to the pro forma defendant No. 7 (Md. Maniruddin Ahmed) and pro forma defendant No. 7 got his name mutated and obtained a separate patta No. 323 with dag No. 1373 by order of A.S.O. dt. 6-7-62. After patta No. 189 was renumbered as 285 during 1957-64 resettlement operation the defendant No. 1 also sold 2 kathas 5 Lechas of land to the pro forma defendant No. 8 Shri Nalini Deka from dag No. 564 of patta No. 285 without the plaintiffs knowledge and pro forma defendant No. 8 got the said land mutated in his name by order of S. D. C. on 3-3-71. The defendant No. 1 again sold 2 Kathas 15 Lechas of land out of his share from dag Nos. 564 and 565 of patta No. 285. The purchaser got his name mutated and obtained a separate patta No. 422 comprising the said 1 bigha of land without the knowledge of the plaintiff though she had been in possession of that land. The defendant No. 1 then sold 1 katha from dag No. 734 of patta No. 285 to the pro forma defendant No. 9, Md, Samsul Haque who got his name mutated by order of S.D.C. on 5-6-71. The defendant No. 1 again sold 2 kathas 10 lechas of land from his share under dag No. 734 of patta No. 285 to pro forma defendants Nos, 10 and 11 who got their names mutated on 27-10-71. The State Government of Assam acquired 2 Bs. 2 Ks. 2 Ls. of land from patta No. 285 for the Gauhati Medical College and defendant No. 1 received the entire compensation money without giving any share to the plaintiff claiming that the land was out of his share though the land was 1 bigha from dag No. 561 and 1 bigha from dag No. 735 (Kha) and 2 Katha 2 Lechas from dag No. 564 (Kha). The defendant No. 1 sold further 1 Katha 10 lechas of land out of his share to the pro forma defendant No. 12, Tamizuddin who was yet to get his name mutated.
17. The plaintiff claimed l/4th share out of 28 Bighas 11 Lechas and admitted the share of defendant No. 1 to be 1/2, namely, 14 Bighas 51/2 lechas, and the share of defendant No. 6 to be l/4th namely, 7 Bighas 23/4 Lechas by inheritance. The plaintiff, however, did not say that the land was earlier partitioned among the co-sharers dagwise or that the dags of different co-sharers conform to their respective shares. She sought the relief of partition in the suit. Therefore, each co-sharer was deemed to have been the sharer of each bit of it According to the plaintiff the defendant No. 1 having already disposed of the land as stated above his remaining share was reduced to 8 Bs. 4 Ks. 33/4 1s. only. But by a deed of gift he purported to have gifted 20 bighas 4 kathas 6 lechas of land valuing at Rs. 7,000/-, to his sons, namely, defendants Nos. 2, 3, 4 and 5 by registered deed No. 6516, dt. 21-7-72 without her knowledge, of course, as averred, without giving delivery of possession to those defendants. The donees filed mutation case No. KP 496/72-73 in which the plaintiff objected on 25-8-75. The pro forma defendant No. 6 also filed Mutation Case No. 128 of 1976-77 for mutating their names in respect of his share. The mutation cases were amalgamated and the defendant No. 1 therein deposed that Asir Mahammad gifted the whole of his landed property to him (defendant No. 1) during his lifetime. Though the plaintiff shows in Sch. 'B' to the plaint that the area of 7 B. 23/4 lechas of land under Dags 564 and 565 is in her possession as co-sharer. She also says that land sold by defendant No. 1 was in her possession. Under Section 53 of the Assam Land and Revenue Regulation, 1886 for mutation one has to prove succession accompanied by possession, or charge has been assumed or that the applicant is in possession.
18. The plaintiff claimed the following reliefs in Title Suit No. 18/79 :
"1. Declaring right, title, interest and possession of the plaintiff on the suit land and confirmation of possession of the plaintiff therein as co-sharer on the land under Dags Nos. 564 and 565 under patta No. 285 at village Japorigog in Beltola Mouza.
2. to pass preliminary decree of partition of the suit land.
3. to pass final decree making partition of the suit land after taking account of the land under patta No. K.P. 285.
4. to declare that the gift deed No. 6516 of 1972 executed and registered by the defendant No. 1 in favour of defendants Nos. 2, 3, 4 and 5 is not binding on the plaintiff on the share of the plaintiff on the suit land as co-sharer.
5. to declare that the sale deed by which the pro forma defendant No. 8 purchased the land under Dags Nos. 565 and 564 of patta No. 285 and order of partition obtained by the defendant No. 8 in partition case No. 15 of 1978-79 with the order of a separate patta No. 422 from the suit land is invalid, null and void and the plaintiff is not bound by such partition.
6. to declare that the sale deeds by which the defendant No. 1 sold lands to the pro forma defendants Nos. 7, 8, 9, 10, 11 and 12 and the permissive possession given by the defendants Nos. 1, 2, 3, 4 and 5 to the pro forma defendants Nos. 13, 14 and 15 are not binding on the plaintiff in the share of her land as co-sharer of the suit land.
7. to issue permanent injunction restraining the defendants Nos. 1, 2, 3, 4, 5 and any other contesting pro forma defendants from interfering with the possession of the plaintiff on the suit land.
8. to decree the costs of the suit and any other relief as the Court may deem fit and proper."
19. The plaintiff valued the relief of partition at Rs. 2,400/-, the injunction at Rs. 200/- and paid court-fee thereon. Fixed court-fee of Rs. 22/- was paid for declaration. The question is whether the suit has been undervalued as contended by the defendant-petitioner who puts the value of the property in suit at Rs. 1,40,000/- (one lac forty thousand).
20. It is settled law that in case of dispute as to the amount of court-fee payable, the Court is to frame an issue on the point and proceed to try that issue first or determine it at the time of disposal of the suit along with other issues. When the plea regarding insufficiency of court-fee is raised, all that the Court is to do is to see whether the court-fee paid already is sufficient having regard to the various allegations in the plaint and in doing so, it does not decide that those allegations are correct.
21. The valuation of a suit for purposes of court-fee and valuation of the subject-matter of the suit for the purposes of determining the jurisdiction of the Court are two different questions. The value for purposes of assessing the court-fee payable on a plaint or an appeal is fixed by certain rules, which determine the value for those purposes. The value of the subject-matter on which depends the jurisdiction of the several grades of the Civil Courts is the actual value of the property. The Court-fees Act is a fiscal enactment and lays down certain rules for value of suits for purposes of revenue and obviously such valuation cannot be accepted as a criteria except as provided in Section 8 of the Suits Valuation Act, 1887 in which suits the value as determinable for computation of court-fees and the value for purposes of jurisdiction shall be the same. Therefore, Court-fees Act, is not to be resorted to for the purposes of valuation of the subject-matter of the suit for jurisdictional purposes. The exception, however, must be made when a case falls under Section 8 of the Valuation Act, for in such a case by virtue of that section the value for purposes of jurisdiction is to follow the value for purposes of court-fee. Where, according to law, value for purposes of court-fee and jurisdiction should be identical, it is not open to the plaintiff to put a higher value on the plaint for purposes of jurisdiction and thereby obtain an adjudication from a superior Court and to put a lower value for purposes of court-fee. Where different values are made for the purposes of jurisdiction and for the purposes of court-fee, objection should be raised at the trial. Where no such objection was raised and Court proceeded to judgment, then no objection can be taken at a subsequent stage.
22. Section 7 of the Court-fees Act prescribes the rules for computation of the amount of fees payable under the Act in different suits. On the authority of Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245, it can be said that the question of court-fees must be considered in the light of the allegations made in the plaint and it's decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. Section 7 of the Act provides that in all suits falling under Section 7(iv) the plaintiff shall state the amount at which the value of the relief is sought. If the scheme laid down for the computation of fees payable in suits covered by several Sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under Sub-section (iv) a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fee. The theoretical basis of this provision appears to be that in case in which the plaintiff is given the option to value his plaint, it is really difficult to value the claim with any precision or definiteness. In a claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is a joint family property, the basis of the claim is that the property in respect of which a share is claimed is joint family property in which the plaintiff has an undivided share and he asks the Court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. The conversion of the plaintiffs alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness and that is why the legislature has left it to the option of the plaintiff to value his claim for the payment of court-fees. It, therefore, follows that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the Court in computing the court-fees payable in respect of the said relief. The question will be different where the joint property is no longer in the hands of the co-sharers but has been alienated to others for value in which case valuation can be made in terms thereof. The question then arises as to whether under this section the plaintiff has been given an absolute right or option to place any valuation whatever on his relief. Insofar as the suits falling under Section 7(iv) of the Act are concerned, the effect of Section 8 of the Suits Valuation Act is to make the value for the purposes of jurisdiction dependent upon the value as determinable for computation of court-fees. The computation of court-fee in suits falling under Section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purposes of court-fee, that determines the value for jurisdiction. However, the Act has been amended in some States to provide for an enquiry.
23. By Section 2 of the Assam Amending Act XVIII of 1947, Section 7-A was inserted to the Court-fees Act. That Section 7-A provides :
"Inquiry as to valuation of suits :
If the Court is of opinion that the subject-matter of any suit has been wrongly valued, it may revise the valuation and determine "the correct valuation, and may hold such inquiry as it thinks fit for such purposes."
This section invests the Court with power to revise the valuation and determine the correct one after holding an inquiry when it forms an opinion that the subject-matter of a suit has been wrongly valued. It confers discretion upon the Court to revise the valuation and determine the correct valuation only when it forms an opinion that the subject-matter of any suit has been wrongly valued To arrive at a correct valuation the Court should hold an inquiry for the purpose. Where there is an objective standard of valuation which would justify the Court in holding an inquiry under this section, the section should be applied even to suits falling under Section 7(iv)(c). This section being one in the taxing statute, it is the duty of the Court when the defendant pleads that the suit has been wrongly valued by the plaintiff, to hold necessary inquiry and to come to a decision after necessary inquiry whether the suit has been wrongly valued. It is true, where there is no objective valuation, it is not possible to say that the plaintiffs valuation is wrong, but every case must be judged on its own facts. If in a case there is some standard by reference to which it may be possible to value the subject-matter of a suit and the Court comes to the conclusion that the valuation made by the plaintiff is wrong, it is open to the Court to revise the valuation made by the plaintiff. It is a settled law that in a declaratory suit with consequential relief where the plaintiff puts an unreasonable valuation the Court should revise it by adopting the procedure laid down in the section.
24. Insisting on a higher court-fee than is payable under the law amounts to putting a new restriction or imposing a more onerous condition. In State of Bombay v. S. G. Films Exchange, AIR 1960 SC 980, it was held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition was not a matter of procedure only; it impairs or imperils a substantive right and an enactment which did so was not retrospective unless it said so expressly or by necessary intendment. The court-fee is payable according to the law in force at the date of filing of the suit.
25. Section 7(iv)(a) does not apply where the suit is one for cancellation of an instrument or for the adjudgment of an instrument void. An instrument generally speaking means a writing usually importing a document of formal legal kind but it does not include the Acts of legislature unless there is a statutory definition to that effect in any Act. Sub- Section (iv)(a) does not apply where the suit is not merely in form but even in substance, one for injunction and not for a declaratory relief. In V.P. Sugar Works v. C.I. of Stamps, U.P., AIR 1968 SC 102 where the plaint alleged that certain Acts were void and non est for the reasons stated in the plaint he did not seek any declaration that they were void, for deciding whether to grant the injunction or not the Court might have to consider the question as to the validity or otherwise of those Acts; but for that reason the prayer for injunction could not be treated as one for a declaratory decree of which the consequential relief was injunction. The plaint proceeded on the footing that those Acts were void and, therefore, the authority had no power to realise the tax and for granting or refusing injunction the Court might have to consider the validity or otherwise of those Acts, but that must happen in almost every case where an injunction is prayed for and that is no reason why a prayer for injunction were to be treated as one for declaratory decree of which the consequential relief was injunction, otherwise all suits where injunction was prayed for would have to be treated as falling under Clause (a) of Sub-section (iv) of Section 7 of the Act.
26. Where it is not possible for the plaintiff to estimate correctly the relief he may be entitled to, it is necessary that the amount at which he values the relief sought for should be a reasonable estimate. If on the materials available before it the Court is satisfied that the value of the relief as estimated by the plaintiff is undervalued the plaint is liable to be rejected under Order 7, Rule 11(b). It is, therefore, necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In Meenakshisundaram v. Venkatachalam, AIR 1979 SC 989, it was held that in a suit for accounts under Section 7(iv)(f), the plaintiff was required to state the amount at which he valued the relief sought as it was not possible for him to estimate correctly the amount which he might be entitled to on accounting; but it was necessary that the amount at which he valued the relief sought for should be a reasonable estimate. If on the materials available before it the Court was satisfied that the value of relief as estimated by the plaintiff in the suit for accounts was undervalued the plaint was liable to be rejected under Order 7, Rule ll(b). Under the provision, where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, the plaint shall be rejected.
27. In the instant case lands under different dags were already sold to persons outside the joint owners of the joint property. They were also put in possession by the respective vendors. The plaintiff not only prayed for a declaration but also for possession of land falling within her share and sold by the respective vendors. In Smt. Santilata Chiney v. Balaram Khan, AIR 1987 Cal 106, in a suit for declaration of ownership of immovable property on the basis of a registered deed of gift, the plaintiff had neither prayed for recovery of possession of the suit property nor for any other relief in respect of the same property. It was held that the valuation could not be based on either the market value or on the value given in the gift deed. It was also held that under Section 7(iv)(b) of the Act there was no objective standard of valuation of the reliefs claimed by the plaintiff. However, in C. G. Ghanashamdas v. Collector of Madras, AIR 1987 SC 180 it was held that the court-fee payable on a memorandum of appeal filed under Section 11 of the requisitioning and Acquisition of Immovable Property Act, 1952 against the order determining compensation payable in respect of the property requisitioned has to be computed in accordance with Section 51 of the T. N. Court-fees and Suits Valuation Act 14 of 1955. The contention that since there was no transfer of title to the property which was requisitioned from its owner to the Government, the said transaction was not an acquisition and hence those provisions of the Requisitioning Act under which the property was requisitioned did not constitute a law providing for acquisition of property and, therefore, Section 51 of T.N. Court-fees Act did not apply, was not accepted. It was observed that possession is nine points in law. As owner without possession has only a mere shell while the person in possession enjoys the property in many ways; and in this situation it is difficult to say that there cannot be deprivation of property without deprivation of title also. Deprivation of possession for an indefinite period is acquisition of property during that period though the title may continue to rest with the owner. That is why the requisitioning law also had to satisfy Article 19 and Article 31 of the Constitution when they were in the Constitution. Section 51 of T. N. Court-fees Act applied to compensation for a property acquired under a law of acquisition of property for public purpose. The award made by the Arbitrator under Section 8 of the Requisitioning Act determining compensation for that property under requisition satisfied those tests and ad-valorem court-fee was, therefore, payable on appeal against such award as per Section 51 of the T. N. Court-fees Act.
28. Section 7 includes suits to enforce a right to share in joint family property on the ground that it is joint family property; Section 7(iv)(c) for a declaratory decree and consequential relief, i.e., to obtain a declaratory decree of other, where a consequential relief is prayed; and Section 7(iv)(d) deals with suits for injunction i.e., to obtain an injunction; and court-fee is payable according to the amount at which relief sought is valued in the suit or memorandum of appeal In all these suits the plaintiff is to state the amount at which he values the relief sought. Section 7(v) deals with suits for possession of lands, houses and gardens. In such suits court-fee is payable according to the value of the subject-matter to be determined as laid down thereunder. If really possession is sought as a relief. Section 7(v) shall be attracted and ad-velorem court-fee shall be payable.
29. In Shevantibai v. Janardhan, AIR 1944 PC 65 it was held, where the assignee of a joint family property sued for partition of the joint family property, the property in respect of which the plaintiff was claiming must be taken to be the subject-matter in dispute of appeal to the council.
30. In Rakesh Chandra Das v. Khan Bahadur, AIR 1982 Gau 82 it was accordingly held that in a suit for partition court-fee has to be determined as per the share claimed by plaintiff and not qua the entire property in question; and that when the suit attracts Section 7(iv) of the Court-fees Act the valuation as put by the plaintiff is normally to be accepted even if the same be somewhat arbitrary; the Court has no jurisdiction to interfere with the same.
31. In A. B. Singh v. State Bank of India, AIR 1979 Gau 27, it was held by Division Bench that in a suit under Section 7(iv)(c) the plaintiff is at liberty to value the suit at the amount at which he values the relief sought and the Court has no power to interfere with the valuation of relief put by the plaintiff for the purpose of court-fee. These decisions of our High Court are to be applied in consonance with the provision of Section 7-A of the Act.
32. In The Industrial Co-op. Bank v. Bhubaneswar Barthakur, (1983) 1 Gau LR 162 : AIR 1983 Gau 71 it was held that for determination of the court-fee averments in the plaint have to be looked into and the Court is not bound by the valuation put by the plaintiff but it can make enquiries and determine the correct valuation as provided in Section 7-A of the Act. In Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384 where a Hindu son sued his father and the mortgage decree-holder for a declaration that the mortgage executed by the father in respect of the joint family property was null and void for want of legal necessity and consideration, though couched in a declaratory form was in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree-holder from executing the decree against the mortgaged property and the plaintiff is liable to pay ad valorem court-fee under Section 7(iv)(c). Astute drafting cannot change the character of the relief sought by the plaintiff. A mortgage decree against the father was a good decree against the son, and it was essential for the son to ask for setting aside the decree. The decisions of the Lahore High Court in Prithvi Raj v. D. C. Ralli, AIR 1945 Lah 13 and in Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70 were upheld.
33. In the instant case also though couched in declaratory form, as there was no earlier partition of the co-shared property, the sales and the gift by the defendants, would be binding on the plaintiff unless those were declared to be not binding on the plaintiff. Mutation implied possession for the purchasers in respect of the lands purchased and the plaintiff was not co-sharer with the purchasers. She rightly sought the consequential relief of injunction. Hence Section 7(iv)(c) covered the plaintiffs case in this regard. Hence I agree with my learned brother.