MULJIBHAI PITAMBERDAS Vs. BAI CHANCHAL

JUDGEMENT

(1.) These applications arise out of a suit in which the facts were that the defendant contracted to sell a piece of land to the plaintiff- at a certain rate in 1938,: that the plaintiff alleged that Rs. 500 were paid by him to her as earnest money and that under the contract a registered deed of sale was to be passed within three months of the contract and possession of the property was to be handed over to the plaintiff. According to the plaintiff another sum of Rs. 1,000 was paid to the defendant, the time for passing the sale-deed being extended on that occasion. As the defendant failed to pass the sale-deed or deliver possession of the property, as agreed, the plaintiff filed the suit for getting a registered sale-deed executed by the defendant and, for getting possession of the property. There was an alternative prayer for damages of Rs. 1,500 and refund of the amount paid in case the Court did not enforce specific performance of the contract.

(2.) The defence was that proper court-fee had not been paid. Thereupon the plaintiff contended that his suit fell under Section 7 (v) of the! Court-fees Act, 1870, as it was a suit, for possession ; while according to the defendant the suit fell under Sub-section (x) (a) of Section 7 of the Act, which specifically provides, for suits for specific performance of a contract of sale and states that the court-fee payable in the case of such a suit would be according to the amount of consideration. Both the Courts below have held that there is no substance in the contention of the plaintiff and that court-fee should be paid in accordance with Sub-section (x) (a) of Section 7 of the Court-fees Act.

(3.) Mr. Thakor on behalf of the applicant has contended that whereas in this case the suit is capable of being regarded as a suit for possession as well as a suit for specific performance, and the court-fee payable, if the suit be regarded as one for possession, weuld be less onerous to his client, the Court should, on the principle that fiscal enactments should be construed in favour of the subject as far as possible, hold that the provision applicable is the one provided by Section 7O), of the Act. In support of this argument he has relied on Modern Mohan Singh V/s. Gaja Prosad Singh (1911) 14 C.L.J. 159 and Rambahadur V/s. Banwari Lal (1929) A.I.R. Pat. 642. For the other view we have the authority of Sundara Ramanujam V/s. Sivalingam (1923) I.L.R. 47 Mad. 150 Nihal Singh V/s. Sewa Ram (1916) I.L.R. 38 All. 292 and Fakir Chand V/s. Ram Datt (1923) I.L.R. 5 Lah. 75. There is no Boubt that one of the reliefs asked for, and it may be said that the more important relief, in this case is that regarding possession. But the right of possession claimed in this suit must clearly be deemed to be a right based on a transfer of title and not merely on the contract of sale. In this se the value of the property being over Rs. 100, the transfer of ownership constituting the sale can be made only by a registered instrument under Section 54 of the Transfer of Property Act, 1882, and the seller is bound, under Clauses (d) and (i) of Sub-section (I) of Section 55 of the said Act,, on payment or tender of the price, to execute a proper conveyance of the property and to give the buyer, on being so required, possession of it. It is thus clear that possession is not and cannot be claimed, in a case where there has been a contract of sale, independently of such contract; and specific performance of such contract must be sought in order to obtain possession. The present suit must, therefore, be deemed to be a suit for specific performance of a contract of sale : the mere fact that possession is claimed would not entitle the Court to ignore its essential character as a suit for specific performance of such a contract. If that be so, then, as remarked in Sundara Ramanujam V/s. Sivalingam, the specific provision relating to suits for specific performance in Clause (x) (a) of Section 7 of the Court-f es Act must exclude the application of the more genera? provision relating to suits for possession in Clause O) of the said section.