KISHORE PREMLAL DALAYA Vs. AKALI PREMAJI

JUDGEMENT

(1.) THIS is an appeal filed by the original plaintiffs against an order passed by Judge Suresh of the Bombay City Civil Court on the 5th of April 1971 ordering the plaint to be returned to the plaintiffs for presentation to the proper Court on the ground that the subject-matter of the suit exceeded the pecuniary jurisdiction of that Court. The six plaintiffs and the 7th defendant are members of a joint and undivided Hindu family defendant No. 7 being the father of plaintiffs Nos. 3 to 6. In the year 1953 defendant No. 7, and the plaintiffs' grandmother one Laxmibai, as well as Premlal the father of plaintiffs Nos. 1 and 2 and their uncle Kishanlal, purported to mortgage the suit property which is situated at Dadar in Bombay, and it is the contention of the plaintiffs that the said mortgage was executed without legal necessity and is not binding upon them. The said mortgage was transferred from time to time and further charges were created on the said property in respect of further advances, and defendants Nos 1 to 5 ultimately had the mortgagees' interest in the said property vested in them. The suit property was put up for auction by defendants Nos. 1 to 5, in purported exercise of the powers conferred under the deeds of mortgage and further charges, on the 19th of September 1967, and it was purchased at the auction by the 6th defendant for a sum of Rs. 48,000. It may be mentioned that it is the contention of the plaintiffs that the said property was actually worth as much as Rs. 96,000/ -. It may also be mentioned that all the six plaintiffs were minors at the time of execution of the purported deeds of mortgage and further charges, and it is the contention of plaintiffs that defendant No. 7 was at no time the Karta of their joint Hindu family. The plaintiffs also contend that the said purported mortgage, further charges as well as the alienation at the auction sale were without legal necessity and were fraudulent and the same were not binding upon them. They have, therefore, filed the present suit on 25th October 1967 raying, (a) for a declaration that the purported mortgages and transfers of mortgages in respect of the suit property are void, invalid, inoperative, ineffective and not binding upon them; and (b) for a declaration that the auction sale of the suit property held on the 19th of September 1967 is also void, invalid, inoperative, ineffective and not binding upon them. Prayer (c) appears to be a Deed of Assignment dated 28th December 1967, executed by defendants Nos. 1 to 5 as well as by defendants No. 6, defendants Nos. 8 to 10 purported to acquire the rights of defendants Nos. 1 to 6 in the said property.

(2.) THE plaintiffs had paid a fixed court-fee of Rs. 30 in respect of this suit on the ground that the subject-matter thereof was incapable of monetary valuation and was, therefore, liable to that fixed court-fee under Section 6 (iv) (i of the Bombay Court-fees Act, 1959, as it hen stood. Thereafter this Court, by its judgment D/- 15-10-1968 in L. P. A. No. 44 of 1968 (reported in ILR (1970) Born 1341) held that where the subject-matter of a suit was not capable of being estimated in money value, it could not be said that the money value of such suit was less than the money value, it could not be said that the money value of such suit was less than Rs. 25,000/- and such a suit was ordered by Judge S. K. Desai (now Mr. Justice Desai) on 26th March 1969 to be returned to the proper Court. In point of fact, the said plaint was, however not returned and remanded to be returned to the plaintiffs when the amendments effected in the Bombay Court-fees Act, 1959 as well as in the Suits Valuation Act, 1887, by Maharashtra Act 9 of 1970 came into force. The amending Act sought to nullify the effect of the judgment of this Court in L. P. A. No. 44 of 1968 which has been referred to above. The material provisions of the amending Act, as far as the present case is concerned, are that in Section 6 of the Bombay Court-fees Act, 1959, a new clause (ha) was added to Section 6 (iv) of the Bombay Court-fees Act, 1959, which provided that in suits for a declaration that any sale, or contract for sale or termination of contract of sale of any property was void, one-fourth of ad valorem fee leviable on the value of the property must be paid by way of court-fee; and clause (i) of the said Section 6 (iv) was amended by providing, instead of the fixed court-fee of Rs. 30, an ad valorem fee payable as if the amount or value of the subject-matter was Rs. 300. The said amending Act also substituted a new section in place of the old Section 9 of the Suits Valuation Act, 1887, providing that in cases in which the subject-matter of the suit did not admit of being satisfactorily valued, the suit was to be treated as if the subject-matter was of the value of Rs. 300, and as if the court-fees thereon were payable ad valorem under the relevant provisions of the Court-fees Act. The material portion of Section 6 (2) (b) of the amending Act enacted that where any plaint had been directed to be returned by the City Court for the purpose of being presented to the proper Court on the ground that the subject-matter of the suit was not susceptible of monetary evaluation, the said order shall be void and of no effect, and if the same had not been actually been returned before the commencement of the said amending Act, "the City Court shall, without any further application, continue the suit or proceedings from the stage reached immediately before such order was made. "

(3.) IN view of the provisions of the said amending Act, therefore, the Bombay City Civil Court continued to be seized of the present suit in spite of the order dated 26th March 1969 passed by Judge S. K. Desai (as he then was), which S. 6 (2) (b) of the amending Act expressly declared to be void and of no effect. The defendants however, sought to raise a preliminary issue whether, even after the amending Act came into force, this could be said to be within the pecuniary jurisdiction of the Bombay City Civil Court, and the suit was placed on the board of Judge Suresh for the trial of that preliminary issue. It was on that preliminary issue that Judge Suresh passed the order under appeal which was dated 5th April 1971, whereby he held that the present suit was governed by the provisions of Section 6 (iv) (ha) of the Bombay Court-fees Act, 1959, as amended; that under Section 8 of the Bombay Court-fees Act, 1959, the valuation and determine the correct valuation of a suit; and that Section 6 (iv) (ha) of the Bombay Court-fees Act only enabled the plaintiff to pay court-fees on one-fourth of the value of the property, but the value of the suit for the purposed of jurisdiction must necessarily be the whole value of the property. The plaintiffs themselves having valued the suit property at Rs. 96,000, Judge Suresh held that the suit was, therefore, beyond the pecuniary jurisdiction of the Bombay City Civil Court and ordered the plaintiffs once again for presentation to the proper Court. It is from that order that the present appeal has been preferred by the plaintiffs.