NARESH KUMAR Vs. HAKAM SINGH AND OTHERS

JUDGEMENT

(1.) THIS revision application is directed against the judgment of the learned Subordinate Judge First Class (A), Mansa dated February 26, 1977 vide which he had held that the suit is not properly valve for the purposes of Court fee and jurisdiction and ad valerem Court fee on the sums of the three transactions of Rs. 3000/ -, 13000/ - and Rs. 28,000/ - which are sought to be set aside should be paid and the plaintiff -petitioners were directed to fulfil the deficiency in the Court fee within 10 days failing which their plaint was it be rejected.

(2.) THE petitioners filed a suit for possession on the ground that they are members of the joint Hindu family and that their brother defendant No. 13 transferred some of the Joint Hindu Family property for a sum of Rs. 3000/ - to defendant Nos. 7 to 18 under the mortgage deeds and subsequently sold the same on May 28, 1970 to defendant Nos. 1 to 5 for a sum of Rs. 28000/ - and that there was another mortgage deed for Rs. 13000/ - regarding the property in dispute. These transactions were challenged on the ground that defendant No. 13 had no authority in law to mortgage the same and that these transactions were also without consideration and legal necessity. The suit was contested by the mortgagees, (defendants 7 to 12 respondents). A preliminary objection was raised by there defendant -respondents that the suit was not properly valued for the purposes of Court fee and jurisdiction and that ad valorem Court fee was required.

(3.) MR . Narula, the learned counsel for the petitioners (plaintiffs) has contended that the order of the learned Subordinate Judge is erroneous and cannot be sustained. No one has appeared on behalf of the respondents in spite of service. The learned trial Court passed the impugned order on the basis of a judgment of the Supreme Court reported as Shamshar Singh v. Rajinder Parshad : A.I.R. 1973 S.C. 2384. The judgment of this Court in C.R. No. 609 of 1974 (Summarjit etc. v. Hans Raj etc C.R. 1909 of 1974) decided on November 19, 1975, was brought to the notice of the trial Court, but since the certified copy of the same was not produced, the learned trial Court did not take any notice. I have perused the judgment in C.R. No. 1609 of 1974 delivered by Pattar J. The facts of the present case are similar to the facts of Civil Revision No. 1609 of 1974. In that case also, the plaintiff Summarjit had sued and pleaded that they and Vidya Bagar had constituted joint Hindu family with his sons and that Vidya Sagar had mortgaged the land in suit belonging to the joint Hindu family situated in village Nangal Kalan on the various dates and on the basis of different mortgage deeds and the total amount of the mortgages was Rs. 35,000/ - and a suit was filed by his son for a declaration that the mortgages were without consideration and legal necessity and were not binding on him. A preliminary objection was raised in that case that appropriate Court fee was not paid and in that situation relying on the same Supreme Court judgment, the learned trial Court had ordered for ad valorem Court -fee and the learned judge taking into consideration all the facts and noticing the judgment of the Supreme Court held that the case was covered under Section 7 (iv) (c) read with Section 7 (v) (b) of the Court Fees Act, 1870 and hence the Court fee at ten times the land revenue was to be assessed and not ad valorem.