GURDIAL SINGH Vs. BALWINDER SINGH AND OTHERS

JUDGEMENT

(1.) THE facts giving rise to this reference are these. One Harnam Singh had mortgaged his land for Rs. 6,100/ -. Later, he sold it for Rs. 15,000/ - to Gurdial Singh and the mortgage amount was included in the sale consideration. After the death of Harnam Singh, his sons Balwinder Singh and others. filed a suit for usual declaration that the mortgage and the sale were not binding on them, as both these alienations were without consideration and necessity. They were governed by custom and the property was ancestral. As a consequential relief they prayed for possession of the said land. The suit was resisted by Gurdial Singh, defendant -vendee. It was dismissed by the trial Court, but on appeal the plaintiffs were granted a decree for possession on payment of Rs. 6100/ -. The defendant then filed a second appeal in this Court.

(2.) THE stamp Reporter raised an objection that the suit was covered by Section 7(iv)(c) of the Court -Fees Act (hereinafter called the Act) and consequently, according to the second proviso to this Sub -section the court -fees on the appeal should be paid at 30 times the land revenue assessed on the land and not at 10 times as already paid by the appellant. The counsel for the appellant contested the position taken by the Stamp Reporter and, therefore, this point came up for decision before the Taxing Officer, who is the Registrar of this Court.

(3.) THE point in controversy has been settled by the Supreme Court in Sathappa Chettiar's case. It is somewhat strange that this authority was not brought to the notice of either Harbans Singh, J. or D.K. Mahajan J. when they decided the two cases referred to above. It is also surprising that the decision in Bawa Bir Singh's case was not cited before D.K. Mahajan J. in Kahan Singh's case, because if he was taking a different view, he would have in that eventuality referred the point to a larger Bench. After the decision given by the Supreme Court in the above mentioned case, this point is not open to argument any longer. It may be stated that the decision of Harbans Singh, J. is in accord with that of the Supreme Court, while that of D.K. Mahajan, J. is not so. In Sathappa Chettiar's case, the Supreme Court, was dealing with Clause (b) of Section 7(iv) of the Act, and the principle enunciated therein admittedly covers Section 7(iv)(c) as well. The relevant portion of Section 7(iv), as amended by Punjab Acts XIX of 1957 and XXXI of 1953 reads thus: