Phani Bhusan Roy vs Ratan Krishna Roy

R. Bhattacharya, J.—This revisional application has been directed against the order of the Addl. District Judge, Hooghly, in Misc. Appeal No. 158 of 1970 affirming the order dated August 29, 1970, of the Munsif, First Court, at Arambagh, dist. Hooghly in T.S. No. 251 of 1959 directing return of the plaint for presentation of the same to a proper Court holding that the suit should be valued u/s 7(v) of the Court Fees Act and that the value of the suit property exceeded the jurisdiction of the Court.

The Petitioner, Phani Bhusan Ray, as Plaintiff filed the original suit against the opposite party, Ratan Krishna Ray for evicting the latter and recovering khas possession of the property. In short, the Petitioner''s case is that one Madan was the owner of the suit lands. He died childless leaving his wife Rati Bala as his limited heir. She sold the property to the Defendant, Ratan, showing some non-existent legal necessities before the coming into effect of the Hindu Succession Act, 1956. Rati Bala died on February 19, 1969. The Plaintiff''s allegation is that, as there was no legal necessity for the sale of the lands by Rati Bala, a limited owner, after Rati Bala''s death, the sale is not binding upon him being the next full male owner as a reversioner of Madan. After the death of Rati Bala, Ratan has been occupying the suit lands as a trespasser. The Plaintiff has prayed in the suit for a decree for khas possession by evicting the Defendant who is alleged to be a trespasser amongst other reliefs. The suit has been valued at Rs. 49.

In the trial Court, as question arose whether the Plaintiff could get a decree for recovery of possession of the suit lands without paying ad valorem court-fees according to the value of the property. The learned Munsif held that the value of the suit lands exceeded Rs. 5,000, the pecuniary jurisdiction of the Court and that the Plaintiff was to pay court-fees after valuation of the suit u/s 7(v) of the Court Fees Act.

An appeal was taken to the District Judge against that order, but the Addl. District Judge who disposed of the miscellaneous appeal held---

We would rather hold that the suit comes under the provisions of Section 7, Sub-section (4), Clause (c) of the said Act. That, however, makes very little difference since the Plaintiff prays for recovery of possession and therefore, he must pay ad valorem court-fee on the market value of the disputed property.

Ultimately, the learned Addl. District Judge affirmed the order of the Munsif.

The only grievance put forward from the side of the Petitioner is that both the Addl. District Judge and the Munsif failed to consider the proper provision of the Court Fees Act, as amended by the State Act in the facts and circumstances of the present case. It has been submitted that Section 7(v-A) introduced by the West Bengal Act XVIII of 1963 is applicable. Before me, however, there is no dispute between the learned Advocates of the parties that Section 7(v-A) is the relevant provision for levying court-fees. The present suit was filed on December 19, 1969. The West Bengal Court Fees Ordinance, 1969, came into force on January 10, 1970. The West Bengal Court Fees Act, 1970, virtually renumbered Section 7(v-A) as Section 7(vi). Clearly, therefore, Section 7(v-A) of West Bengal Act XVIII of 1963 will govern the present case for the purpose of court-fees and valuation. I quote below the relevant portion of Section 7(v-A) of the Court Fees Act as amended by the local Act XVIII of 1963 already referred to:

In a suit for recovery of possession of immovable property from

(a) a trespasser, where no declaration of title to the property is either prayed for or necessary for disposal of the suit according to the amount at which the relief sought is valued in the plaint subject to the provisions of Section 8C.

In the present case, just after the cause title, it has been stated that for the prayers for recovery of khas possession by evicting the Defendant and for injunction the suit is valued at Rs. 49 only. Before the prayer at the end of the plaint, it has been stated that for the relief prayed valuation is made at Rs. 44, that for injunction valuation is determined at Rs. 5, that the suit is valued in all Rs. 49 and that court-fees are accordingly paid.

The contest between the parties is one over the valuation of the suit and payment of court-fees regarding the prayer of recovery of khas possession of the lands in suit by the Plaintiff after evicting the Defendant therefrom. It is contended before me from the side of the Plaintiff-Petitioner that in this case there is no prayer for declaration of his title; neither is there any necessity for such declaration for the disposal of the suit. In these circumstances, it is urged that the amount of valuation given by the Plaintiff in the plaint is sufficient and ad valorem court-fees need not be paid on the market value or profits out of the property as mentioned in Section 7(v) of the Court Fees Act. In reply to this point, it has been argued from the side of the Defendant opposite party that in the present case when there is a sale deed executed by Rati Bala sought to be characterised as illegal and not binding upon the Plaintiff, unless the Plaintiff''s title is declared after nullifying the deed, the latter cannot get any relief in this case. In short, the Defendant''s case is that, as indirectly the Plaintiff has asked for declaration of title and as such declaration in this case is necessary, Section 7(v) is attracted.

The sole question to be decided by me is whether in the instant case declaration of title referred to in Section 7(v-A) of the Court-Fees Act is necessary for the disposal of the suit. On the side of the Petitioner, reliance is placed on the case of Bijoy Gopal Mukherji and Ors. v. Sm. Krisna Mahishi Debi and Ors. ILR (1907) 34 Cal. 329 : 34 I.A. 87 decided by the Privy Council. The fact of that case was that one Chandra Bhusan died childless in 1832. His successor was his widow, but she died in 1893. The principal Defendants were in possession of the suit property on the basis of a lease or ijara for a term of sixty years granted by Chandra Bhusan''s widow Soyamoni which covered a period even after her death. Some of the reversionary heirs of Chandra Bhusan brought the suit for recovery of possession of the suit property on the allegation that the lease granted by Soyamoni became inoperative after her death and there was also a prayer for mesne profits. The reversionary heirs who did not join with the Plaintiff were also made Defendants. In that suit a question was raised whether Article 91 of sch. II to the Indian Limitation Act would be applied. According to the trial Court, the suit was governed by Article 19. Against the decree in favour of the Plaintiff, appeals were presented to the High Court of Calcutta. By Article 91 of sch. II to the Limitation Act the period of limitation for a suit to cancel or set aside an instrument not otherwise provided for was three years from the time when the facts entitling the Plaintiff to have the instrument cancelled or set aside became known to him and according to Article 141, the limitation is 12 years from the female''s death in a suit for possession of immovable property by the reversioners on the death of a Hindu female. In the appeals, the High Court found that the Plaintiff expressly had asked to have the ijara lease set aside and could not recover possession unless it was set aside. As it was a case relating to setting aside the deed of lease, the suit was barred by limitation as per Article 91 of sch. II to the Limitation Act. The decision of the High Court will appear in Bijoy Gopal Mukerji v. Nil Gopal Mukerji ILR (1903) 30 Cal. 990. The matter was taken to the Privy Council and before the Judicial Committee the question for consideration arose whether the reversionary heirs must, in a suit for recovery of possession of property of the male deceased after the death of a Hindu female limited heir who had leased out the same by an instrument for alleged legal necessity, get the instrument or deed set aside or cancelled before they could be entitled to get a decree for recovery of possession.

The relevant question just referred to above has been set at rest by the decision of the Judicial Committee of the Privy Council in the case of Bijoy Gopal Supra mentioned hereinbefore. The relevant portion of the decision reported in 34 Indian Appeals is quoted below:

A Hindu widow is not a tenant for life, but is owner of her husband''s property subject to certain restrictions on alienation and subject to its devolving upon her husband''s heirs upon her death. But she may alienate it subject to certain conditions being complied with. The alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the Appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so and they might have merely claimed possession leaving it to the Defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.

It has been made clear that the lease created by the Hindu female heir, according to law prior to Hindu Succession Act, 1956, was voidable at the option of the reversioners. They may, if they so like, affirm it or treat it as a nullity without the intervention of the Court and they may show their election to do the latter by starting an action in the Court simply for recovery of possession of the property without praying for a decree for declaration of their title to the property in question. This question has been considered in Articles 185 and 205 of Mulla''s Principles of Hindu Law (1970 ed., pp. 215, 235).

In the case before me, therefore, I hold that it was not necessary for the Plaintiff to get his title declared by getting the lease of Rati Bala set aside or cancelled. It was enough for the Plaintiff to pray for recovery of possession of the suit property treating the lease as void and the Defendant as trespasser and it was for the Defendant to plead and prove the circumstances, as law requires, on which he relied on to show that the lease was not voidable but was binding on the Plaintiff as reversionary heir of Madan. In the facts and circumstances, I must find that Section 7(v-A)(a) of the Court Fees Act as amended by the West Bengal Act XVIII of 1963 is applicable and the valuation of the suit for recovery of possession and injunction as made separately is proper. Court-fees are payable separately according to valuation as made on two heads.

It appears that in the two Courts below the question of valuation in respect of the claim for mesne profits was not raised and no court-fees were paid on that account. In the plaint also there is no indication as to the court-fees payable for relief regarding mesne profits. There is no statement of valuation on that head. The parties, it appears, did not pay any attention to this item. However, the question whether the Plaintiff wants any decree for mesne profits by paying proper court-fees, is left open and the matter relating to court-fees on prayer for mesne profits may be decided by the trial Court according to law. If the Plaintiff does not press for mesne profits, the relevant prayer shall be deleted.

In the result, the Plaintiff''s application succeeds. The Rule is made absolute. The orders of the Addl. District Judge in appeal and the trial Court dated May 13, 1971 and August 29, 1970, respectively are hereby set aside. In the circumstances of the case, I pass no order as to cost in this Rule. Let the records of the lower Courts be sent down at an early date so that the trial Court may proceed with the suit expeditiously according to law.