BANWARI LAL Vs. SHEO SANKAR MISSER

JUDGEMENT

(1.) On the 18 March 1905 the plaintiffs-respondents commenced the action out of which the present appeal arises for a declaration that they formed with the defendant second party a joint Mitakshara family, that the subject matter of dispute formed a part of the joint family property, that the deed of sale, executed by the defendant second party on the 19 March 1893, is null and void, and that the plaintiffs are consequently entitled to recover possession and mesne profits from the date of dispossession to the date of suit as well as future mesne profits from the date of suit till the date of recovery of possession. The plaintiffs valued the property in dispute at Rs. 400 and approximately stated the mesne profits antecedent to suit at Rs. 1,082-9-15. They paid Court-fees on the plaint upon Rs. 1,086-5-15, namely, upon ten times the Government revenue payable for the disputed property under Section 7, Sub-section 5 Clause (a) of the Court Fees Act, as also upon the amount of mesne profits. The defendants first party, now appellants before this Court, resisted the claim on the ground of limitation, as also on the allegations that the property did not belong to the joint family but was the exclusive property of the second party defendant, that the alienation had been made with the consent of all the members and for legal necessity, and that in any event the plaintiffs were not entitled to recover possession till they offered to refund the purchase-money. The Court of first instance found that the plaintiffs and the second party defendants were members of a joint Hindu family governed by the Mitakshara law, that the disputed property, which had been purchased on the 8 September and 7 October 1890, in the name of the defendant second party, was joint family property, that the second party defendant had no right to alienate the same without the consent of his co-parceners, that part of the consideration was applied in the discharge of a prior mortgage created on the 27 July 1892, for family necessities and that the remainder had been appropriated in payment of another family debt and for necessary family purposes. The Subordinate Judge also held that the first plaintiff, who is the father of plaintiffs Nos. 2 to 7 and grandfather of plaintiffs Nos. 9 to 14, assented to the transfer. He dismissed the suit, however, on the ground that it was barred by limitation under Art. 91 of the second schedule to the Limitation Act. Upon appeal the learned District Judge held that the suit was not barred by limitation inasmuch as it must be treated in substance as a suit for recovery of possession from persons who had not, acquired any valid title under their purchase, and, that in any view, as some of the plaintiffs were infants, who did not and could not consent to the alienation at the time it was made, no question of limitation could arise. Upon the question of the mode in which the consideration for the conveyance had been applied, the District Judge apparently doubted whether it was spent for family benefit, but he did not arrive at any conclusive finding upon this point. He held, however, that the second party defendant, as one of the members of a joint Hindu Mitakshara family, was not competent to alienate the property without the assent of all the co-parceners, and that, therefore, all the plaintiffs were entitled to recover the disputed property. In this view of the matter, he reversed the decision of the Court of first instance, decreed the suit and directed the mesne profits, to which the plaintiffs might be entitled, to be ascertained in execution.

(2.) The first party defendants, who represent the transferees from the second party defendants under the conveyance of the 19 March 1893, have now appealed to this Court. The appeal is directed against every part of the judgment of the District Judge, which is attacked substantially on two grounds, namely, first, that the plaintiffs are not entitled to recover possession without repayment of the consideration for the conveyance, and, secondly that, in any view of the matter, the plaintiffs are not entitled to claim mesne profits for more than three years antecedent to the suit.

(3.) On behalf of the plaintiffs respondents, an objection has been taken that the appeal is incompetent, inasmuch as the memorandum of appeal to this Court is insufficiently stamped. The appellants have paid Court-fees upon ten times the Government revenue payable for the disputed property; and they have paid an additional Court-fee of Rs. 10 on account of mesne profits which according to them are still unascertained and the decree in respect of which must be treated as a declaratory decree. On the 22 February, last when the appeal was first called on for hearing this preliminary objection was taken and as the contention of the respondents was not seriously resisted by the learned Vakil for the appellants, the objection was allowed, and the appellants were directed to pay within three weeks from the date of our order Court- fees upon the whole amount of mesne profits claimed in the plaint. On the 8 March last, however, it was represented to us by the learned Vakil for the appellants that our previous order was contrary to the established practice of this Court and he asked for leave to argue the point at length. As the question involved was one of considerable importance, we gave the appellants as well as the respondents fresh opportunity to argue the matter fully before us. It was contended on behalf of the appellants that although the plaintiffs might have approximately stated the amount of mesne profits in their plaint as required by Section 50 of the Code of 1882, the decree of the District Judge does not imply that they are actually entitled to recover that sum, that consequently the subject-matter of the present appeal must be treated as unascertained, and that in this view, a Court fee of Rs. 10 is adequate under schedule II, Art. 17, Clause (6) of the Court Fees Act. It was further suggested that the decree might be treated as a declaratory decree and might, therefore, be covered by Clause (3) of the same article. It was contended, on the other hand, by the learned Vakil for the respondent, that neither of these articles was applicable and that the case was covered by Section 7, Sub-section (i) of the Court-Fees Act. In our opinion, the contention of the appellants is obviously erroneous and cannot be sustained. Art. 17, Clause (6) of the second schedule to the Court Fees Act provides that the plaint or memorandum of appeal in every 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 Act is to bear a Court-fee of Rs. 10. The test to be applied is, therefore, two fold, first, is this a suit in which it is not possible to estimate at a money value the subject-matter in dispute, and secondly, is this a suit which is not otherwise provided for in the Act? Both these questions must, in our opinion, be answered in the negative. As regards the first question, it is worthy of note that the word estimate involves an idea of approximation. To estimate as defined in the Oxford Dictionary, volume III, page 303, is "to form an approximate notion of the amount, number, magnitude or position of anything without actual enumeration or measurement." In other words, to bring a case within the scope of this clause it must be established that it is not possible even to state approximately a money value for the subject-matter in dispute. Section 50 of the Code of 1882 makes it obvious that a claim for mesne profits does not fall within this description, and the very fact that the plaintiffs in the present case have found it possible to state the value of the mesne profits claimed, shows that the subject-matter in dispute can be estimated at a money value. But there is a further test to be applied to bring the case within the scope of the 6 clause. The suit must be one which is not otherwise provided for by the Act. Section 7, Sub-section (i), however, shows that the suit is provided for in the body of the Act itself, because in so far as mesne profits are concerned, it is a suit for damages or compensation and consequently the amount of fee payable has to be computed on the amount claimed. It is fairly clear, therefore, that schedule II, Art. 17 Clause (6), is of no assistance to the appellants. The suggestion that Clause (3) might possibly cover the case is equally groundless, as this is not a memorandum of appeal in a suit to obtain a declaratory decree where no consequential relief is prayed. Upon examination, therefore, of the provisions of the Court Fees Act it seems to us to be reasonably plain that the Court-fees on the memorandum of appeal must be paid on the amount claimed as mesne profits. The learned Vakil for the appellants, however, strenuously contended that this implied considerable hardship upon an unfortunate defendant. It was suggested that an unscrupulous plaintiff might capriciously put a fictitious value upon the mesne profit, and thus drive an un-successful defendant to pay heavy Court fees in appeal upon a claim which upon investigation would prove to be groundless and exaggerated to a considerable extent. In answer to this contention, we need only point out that a similar difficulty might arise in the case of suits for accounts, as to which there can be no doubt that under Section 7, Sub-section (4), Clause (f) of the Court Fees Act, the Court fees have to be paid according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. We are not concerned with the policy of the Legislature in these matters; nor is it within our province to consider whether the law may or may not require an amendment. In our opinion it is plain that the suit is governed by Section 7, Sub-section (i), and not by Clause (3) or Clause (6) of Art. 17 of schedule II to the Court Fees Act. It may further be observed that Court fees have to be paid only upon the mesne profits claimed antecedent to the suit, and, as pointed out in the cases of Ramkrishana Bhikaji V/s. Bhimabai 15 B., 416 and Maiden v. Janakiramayya 21 M., 3710, a plaint or memorandum of appeal is not liable to stamp duty in respect of mesne profits subsequent to the suit. This circumstance strengthens the view we take, because there is, as indicated in the cases just mentioned, a substantial difference between mesne profits antecedent to the suit which may be always approximately valued as they have already accrued due during a definite period, and mesne profits subsequent to the suit which at the date of the plaint must be treated as unascertainable because dependent upon an uncertain element, namely, the period of time which would intervene between the date of institution of the suit and the date of recovery of possession under the decree.