PURSHOTTAMDAS Vs. ULPHATRAI

JUDGEMENT

(1.) IN this appeal the question for determination is whether a suit by a person claiming a declaration that an alienation of a certain joint family property made by his uncle is not binding on him and for possession of the property is for the purposes of court -fees governed by Section 4, Clause (iv)(c) or by Section 4, Clause (v) of the Indore Court -fees Act. These sections correspond to Section 7(iv)(c) and 7(v), Indian Court -fees Act. The Plaintiff Appellant paid court -fees on Rs. 9000/ - which was the consideration for which the property was alienated. The learned trial Judge came to the conclusion that inasmuch as the Plaintiff's suit was in effect one for possession of the property, the Plaintiff should have paid court -fee under Section 7(v), Indore Court -fees Act on the market value of the property. The learned Civil Judge found that the market value of the property of which the Plaintiff sought possession was Rs. 45000/ -. (sic) therefore returned the plaint to the Plaintiff (sic) presentation to the proper Court.

(2.) SHIVDAYAL , learned Counsel for the Appellant, (sic) that it was necessary for the Plaintiff -Respondent to obtain a declaration from the court the alienation was not binding on him, be(sic) could claim the possession of the alienation property and the relief of possession being, (sic) consequential, the Plaintiff's suit fell under (vi)(c). In support of this contention of counsel for the Appellant relied on the (sic) of the Nagpur High Court in - 'Hajrabi v. Mohammad Ibrahim' : AIR 1948 Nag 219 (A), and of Lahore High Court in 'Harkishan Lal v. Barkat Ali', AIR 1942 Lah 209 (B). On behalf of the Respondents, Mr. Motilal Gupta relying on 'Ranjit Singh v. Birinder Kumar', AIR 1952 Pepsu 168 (c) and the cases relied on therein, argued that though the Plaintiff had claimed a declaration that the sale of the joint family property by his uncles was not binding on him, his suit was in substance one for possession of the property; that the relief regarding declaration was unnecessary and that, therefore, the Plaintiff should have paid court -fees on the market value of the property and filed his suit in the court having jurisdiction to entertain suits of the valuation of Rs. 45000/ -.

(3.) THE principle laid down by the Privy Council was applied by the Madras High Court in 'Kalianna Goundar v. Bala Subramaniam' : AIR 1947 Mad 237 (E); 'Ramaswami Ayyanger v. Rangachariar', AIR 1940 Mad 113 (FB) (F), and by the Patna High Court in 'Ram Sumran Prashad v. Govind Das' : AIR 1922 Pat 615 (SB) (G). The Madras cases dealt with the question of the possession of joint family property alienated by the father of the Plaintiff. In the Patna case the Plaintiff claimed to be the reversionary heir and sued for possession of property which the last male holder had gifted during his life time. In all these cases it was held that the Plaintiff was not bound to sue for a declaration or cancellation of the deed of alienation and that the Plaintiff's claim was in essence one for possession of the property alienated. I do not propose to refer to numerous other cases taking this view. Some of them have been considered by the Pepsu High Court in the case of 'Ranjit Singh v. Birinder', AIR 1952 pepsu 168 (C), which is in line with the Madras and Patna view.