Kundan Singh vs Suraj Prakash and Others

D.S. Mathur, J.—This is an appeal by Kundan Singh, plaintiff, against the order dated 14-2-1963 of the District Judge of Bijnor accepting the office report regarding deficiency in court-fee and directing the appellant to make good the deficiency in court fee.

The trial court decreed the plaintiff''s suit for a sum of Rs. 9,177, but at the same time directed that the decree shall be against the assets of Kishori Lal deceased in the hands of the defendants. The plaintiff challenged only that part of the decree by which the decree could be executed against only such assets of the deceased as had come in the hands of the defendants. His case is that the decree could be executed against all the properties belonging to this joint family.

The High Court of Allahabad and the Chief Court of Oudh were amalgamated in 1948 and a new Allahabad High Court was constituted. Consequently, from that date the decisions of both the Allahabad High Court and the Oudh Chief Court are binding on the subordinate courts. In this view of the matter, the Oudh case could not be disregarded.

If mere observations in the decisions of the Oudh Chief Court and the Allahabad High Court are considered, it can be said that there exists a conflict in these decisions, but the observations must be read along with the facts of the case. High Courts never lay down the law to be applicable to cases irrespective of what their facts may be.

In AIR 1940 312 (Oudh) the Civil Judge had passed a decree for Rs. 209,087 and this part of the decree was not challenged in appeal. The Civil Judge also directed that "the actual liability of the landlord will however be limited to the extent of the transfer value of the mortgaged property which might be fixed by the Collector." It was this condition which was challenged in appeal. From the report it is evident that by the time the appeal was preferred, the Collector had not fixed the transfer value of the mortgaged property. He was the respondent who fixed this value at Rs. 24,164/ 12/3 No one could have known what order the Collector shall pass. Consequently, when the transfer value of the mortgaged property was unknown, it could not be said what was the amount in dispute in that appeal. As provided in Section 7(4)(a) of the Court-fees Act, the valuation of the relief is to be the value of the consequential relief and if such relief is incapable of valuation, then the value of the immovable property computed in accordance with Sub-sections (5), (5-A) or (5-B) of Section 7, as the case may be. When it is not known what is the amount in dispute, the value of the consequential relief cannot be determined, nor can the value of the immovable property be determined under the sub-sections referred to above. In such a case, the valuation for purposes of court-fee cannot be determined u/s 7(4)(a) of the Court Fees Act and as there is no other provision in the Act, Court-fee shall be payable under Article 17 (7) of Schedule II of the Act. In this view of the matter, the Oudh case shall be applicable to only suit in which the valuation cannot be determined.

The Allahabad High Court cases, Sabir Husain and Another Vs. Farzand Hasan and Others, and Kachera v. Kharag Singh, ILR (1911) All 20 are those in which the money value was capable of determination.

Considering that the matter shall have to be remanded to the court below for determination of the actual deficiency, it is not necessary to lay down in clear words whether advalorem court-fee was payable or court-fee was payable under Article 17 (7) of Schedule II of the Court-fees Act. The point can be reconsidered by the court below on the basis of the law laid down in this appeal.

In case it is known which properties or what share in the properties is in dispute with regard to which declaration with consequential relief has been sought for, advalorem court-fee shall be payable on the value of such immovable property subject to the condition that the valuation of the appeal cannot exceed the sum of Rs. 9,177, decreed by the trial court; but if the properties in dispute are not known or it is not possible to ascertain the share in the properties in dispute, it would be difficult to find the value of the consequential relief or the value of the immovable properties in dispute and in such a case court-fee shall be payable under Article 17(7) of Schedule II of the Court Fees Act.

For purposes of the record, the F. A. F. O. is hereby allowed, the order under appeal is set aside and the matter is remand ed for a fresh decision in accordance with the law laid down above. Costs easy.