VISHNUPRASAD NARANDAS MODI Vs. NARANDAS MOHANLAL MODI

JUDGEMENT

(1.) WHEN we dealt with First Appeal No.1 of 1945 and dismissed it with costs on 23rd August 1948, Mr. N. C. Shah for the appellant applied for a refund of court-fees paid by him on the memo of his appeal on the ground that through mistake excessive court-fee had been paid by the appellant. We then directed him to argue this matter before the Taxing Officer and left it open to the Taxing Officer to send the matter back to us if he felt any difficulty in deciding it or if he otherwise thought that the point was of such importance that it should be disposed of by a judgment from the Court itself. Accordingly the matter was argued before the Taxing Officer and he has sent it back to us because he says there is no ruling of our Court on the point in question and that the said point is likely to arise in many other appeals. That is how this matter has come to us again for the determination of the question of the proper court-fees payable in the present appeal.

(2.) THIS question arises in this way : When the plaintiff filed the present suit for partition he paid court-fees on the value of the subject-matter of the suit on the basis that the suit fell within Section 7 (v), Court-fees Act. In fact that is how all suits for partition were being valued for the payment of court-fees at that time. Subsequently, however, it has been held by a Full Bench of this Court in Shankar Maruti v. Bhagwant Gunaji, 49 Born. L. R. 78 : (A. I. R. (34) 1947 Bom. 259 P. B.), that in a suit for partition of joint family property, where the plaintiff claims to be in constructive possession with other coparceners, the court-fee payable on the plaint is under Schedule II, Article 17, Clause (vii) (according to the Bombay Amendment) of the Court-fees Act, 1870, a fixed fee of Rs. 15.It was further held that such suits are not governed either by Section 7 (iv) (b) or by Section 7 (v) of the said Act. A contrary view had been taken in Balvant Ganesh v. Nana Chintaman, 18 Bom. 209 and Dagdu v. Totaram, 33 Bom. 658: (4 I C. 243) and until the decision in Shankar Maruti v. Bhagwant Gunaji, (49 Bom. L. R. 72 : A. I. R. (34) 1947 Bom 259 F. B.) the practice consistently was to treat the partition suits as falling under Section 7 (v), Court-fees Act. THIS question was considered exhaustively by the Full Bench who ultimately came to the conclusion that (p. 81) : " In view of the weight of authority, it should now be declared that the (earlier) Bombay decisions are not good law, and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Schedule II, Article 17, Clause (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15. " The contention for the appellant is that through mistake he followed the old practice and paid excessive court fees on the wrong basis that the appeal like the original suit from which it arises fell under Section 7 (v), Court-fees Act. On the other hand, it has been urged by Mr. Thakor who has appeared amicus curia in these proceedings at our instance that what is true about a partition suit may not necessarily be true about an appeal like the present where the appellant is defendant 1. The argument is that defendant 1 claimed to be in exclusive possession of certain properties in suit on the allegation that they were his separate properties. THIS contention has been negatived to some extent and it is against the decree based on the finding on this issue that the present appeal has been preferred. In such a case the appeal should be treated as one in which a claim for the possession of land is involved and should as such fall under Section 7 (v ). We are, however, unable to accept this contention. In view of the Full Bench decision, it cannot any longer be contended that a suit for partition does not fall under Schedule II, Article 17, Clause (vii), and this would be so whatever be the contentions urged by the defendants while resisting the plaintiff's claim for partition. Article 17 provides for court-fees in respect of plaint or memorandum of appeal in the suits mentioned in that article. A suit for partition falls under Clause (vii) of this article as "any other suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Court-fees Act. " Reading this article by itself, apart from authorities, it seems to us clear that if an appeal, arises from a suit which falls under Article 17, the court-fee payable on the memorandum of such an appeal must be the same as that payable on the original plaint in the suit. THIS article refers to an appeal arising from certain specified suits and makes no distinction as to whether the appellant is the plaintiff or the defendant. That being so, it seems to us that the proper court-fees payable on the present memorandum of appeal would be those required by Article 17, Clause (vii) of Schedule II, Court-fees Act.

(3.) THEN it is urged by Mr. Thakor that even if it be held that excessive court-fee has been paid by the appellant there would be no justification for granting a certificate of refund as claimed by the appellant because this case does not fall within the purview of Sections 13, 14 and 15, Court-fees Act. The argument is that the power of the Court to issue a certificate of refund of court-fees is confined to cases falling under any of the three aforesaid sections of the Court-fees Act. This contention, however, is not well founded. There is ample authority in support of the proposition that even in cases not covered by Sections 13, 14 and 15, Court-fees Act, the Court can under Section 151, Civil P. C. order refund of court-fees paid in excess either by mistake, inadvertence or oversight: vide Ahmed Ebrahim v. Government of Bombay, I L. R. (1943) Bom. 25 : (A. I. R. (30) 1943 Bom. 50), Abdul Majid Mridha v. Amina, Khatun, I. L. R. (1942) 2 Cal. 253 : (A. I. R. (29) 1942 Cal. 639), Vishnu v. Ramunni, A. I. R. (27) 1940 Mad. 208 : (1939-2 M. L. J. 867) and Jagdesh Chodhury v. Radha Duley, 6 Pat. 599 : (A. I. R. (15) 1928 Pat. 35 ). As we have already pointed out, the payment of excessive court-fees in this case was due to the fact that under the earlier decisions of this Court suits for partition and appeals arising therefrom were wrongly treated as falling under Section 7 (v), Court-fees Act. In such a case we have no hesitation in holding that it would be open to us to grant a certificate to the appellant entitling him to a refund of the court-fees amount paid by him in excess.