CHANDRAKANT RATANSHI KOTHARI Vs. RATANSHI DAMJI KOTHARI

JUDGEMENT

(1.) This is a revision petition filed under sec. 115 of the Civil Procedure Code against the order passed by learned Civil Judge Senior Division Mr. P. M. Desai in Special Civil Suit No. 20 of 1963 that the Court-fees paid by the petitioner (Original plaintiff) on the plaint were inadequate and he was directed to pay an additional Court-fee of Rs. 2 705 on or before 21st September 1965 The costs of the hearing on the question of Court-fees so far as defendants Nos. 10 14 and 15 were concerned were ordered to be borne by the plaintiff.

(2.) Mr. Y. S. Mankad appearing for the petitioner urged that the plaintiff had filed the present suit for a declaration that the two English mortgages executed by defendant No. 1 (opponent No. 1) the father of the present petitioner were not binding on him as the mortgages related to the ancestral properties or the joint family properties and the mortgage transactions were not entered into for the purposes of legal necessity and furthermore they were not binding on him even though they were executed by his father as those dues were tainted with illegality and immorality. He had one-tenth share in the suit properties which were joint family properties and he claimed partition and prayed that he be allotted the property coming to his share. He further claimed a relief regarding accounts. He also claimed a relief for injunction. He valued the entire suit properties at Rs. 1 50 0 His share in the suit property being one-tenth according to him he valued the suit properties at Rs. 15 0 so far as his share was concerned. The first English mortgage was executed in favour of defendants Nos. 10 to 14 who are opponents Nos. 10 to 14 in this revision petition. Defendant No. 2 was the second mortgagee in whose favour the additional mortgage was executed by defendant No. 1. He is opponent No. 15. The first mortgage was for Rs. 1 10 0 Additional mortgage was for Rs. 35 0 The total encumbrance created therefore was for an amount of Rs. 1 45 0

(3.) The learned trial Judge while deciding this question of Court-fees as a preliminary issue observed in para 7 of his judgment that defendants Nos. 4 6 7 8 and 9 were the sisters of the plaintiff. In view of certain provisions of Hindu Law these female heirs could not be called co-parceners and so they were no entitled to partition and were not entitled to any share at the time of partition. They were entitled only to maintenance and residence so far as the joint family properties were concerned. The plaintiff has not deducted any amount for their maintenance or marriage charges etc. In the opinion of the learned trial Judge the plaintiff had therefore 1 share and not 1/10th Share and accordingly according to the plaintiffs own valuation his share being 1/5th and not 1/10th it should have been valued at Rs. 30 0 instead of Rs. 15 0 The learned trial Judge further found that as in para 13(a) of the plaint the plaintiff had sought for a declaration regarding the aforesaid mortgage transactions the plaintiff had to value that relief at Rs. 1 45 0 and his share being 1 he should have valued that relief on that basis in view of the provisions of sec. 18 read with Article 3 of the Schedule I of the Bombay Court-fees Act 1959 (which will be hereinafter referred to as the Act). He further found that in regard to the relief (c) regarding accounts the plaintiff has to pay Court-fees of Rs. 20/in the first instance in view of the provisions of sec. 18 read with sec. 6(i) of the Act. In regard to the relief of injunction in para 13(d) he has to pay Court-fees of Rs. 30/in view of the provisions of sec. 18 read with Schedule II Article 23 of the Act. The plaintiff having paid in all Court-fees of Rs. 1 100 and the Court-fees payable according to the learned trial Judge being Rs. 3 805 the plaintiff had to pay an additional amount of Rs. 2 705