JITENDRA NATH GHOSE Vs. HIRENMOY KUMAR SAHA

JUDGEMENT

(1.) This Rule raises a question of valuation for the purposes of assessment of court-fees and it has arisen under the following circumstances. The plaintiff-petitioner instituted a suit in the Court of the Subordinate Judge of Nadia against the defendants opposite parties alleging inter alia that he is entitled to a contingent interest tinder the will of one Parasu-ram Mustafi. He died in 1879 leaving two widows, Soudamini and Shivani, both of whom have since died. Soudamini left a daughter Kshirod mohini who died in 1908. Kshirodmohini left two sons of whom plaintiff is the sole survivor. It is alleged in the plaint that one Hari Pada Saha deceased who was husband of defendant No. 2 and father of defendant No. 1 was a monthly tenant-at- will of the disputed house and garden of the late Parasuram Mustafi. It is alleged that he caused a fictitious deed of sale to be executed by Kshirodmohini and her sons, that is the petitioner and his deceased brother on Falgoon 23,1298, B.S. and another sale-deed to be executed by Shivani on Sraban 13, 1300, B.S. it may be added here that according to the will Soudamini was to have 10 as. share and Shivani the remaining 6 as. share in the properties of the testator. On those material allegations the plaintiff brought the suit asking for reliefs which are specified in 12 prayers. Of these only the following are material for the present petition. He asked that the contingent interest of himself, the plaintiff, under the will might be declared and that it might be declared that the document executed by Kshirodmohini and Soudamini and any other document on the strength of which the defendants claim possession are fraudulent, collusive and inoperative. He further asked that khas possession might be decreed upon a declaration that the plaintiff's right had accrued after the death of Shivani that he might be entitled to recover mesne profits, that a permanent injunction might be granted against the defendant restraining them from alienating the disputed properties and committing other acts of malfeasance, and lastly that if the Court held that the tenancy-at-will created in favour of the late Hari Pada Saha by Shivani had not been determined and consequently the plaintiff was not entitled to recover khas possession, it might be declared that the plaintiff was entitled to realise from the defendants monthly rent payable by them. Upon this plaint the plaintiff petitioner paid ad valorem court-fees upon Rs. 2,500 on the following basis. (a) Rupees 2,400 being the value of properties as stated in the kobalas in favour of Hari Pada Saha. (b) Rupees 50 value of the injunction. (c) Rupees 50 value of the mesne profits.

(2.) To this an objection was raised in the lower Court that the valuation was not correct. The plaintiff claimed to be allowed to put his valuation under Section 7, para, (iv), Clause (c) of the Court Pees Act on the ground that the suit was a declaratory one with prayers for consequential reliefs. It was contended for the other side in the lower Court that this description of the suit was not correct, that the suit was not merely a declaratory one but that it was a suit for declaration of plaintiff's title and for recovery of possession as also for recovery of mesne profits and for injunction. The learned Judge has given effect to this objection, holding that the plaintiff claims title as reversionary heirs and claims recovery of possession and mesne profits, the declaration in respect of the kobalas being merely ancillary. So he has decided that the suit comes under Section 7 (v) of the Court Fees Act and the valuation must be in accordance with the market value of the properties. This he has held to be Rs. 7,250. Against that decision the present rule has been obtained.

(3.) The contention which was made in the lower Court is repeated here, namely, that the plaintiff is entitled to fix the valuation as under Section 7, para (iv) (c) and not under para. (v). Bo far as this contention is concerned, it depends upon whether the suit is merely a declaratory one, the other reliefs asked for being in the nature of consequential reliefs. Now with regard to the two kobalas it is suggested that the test is whether it is necessary that the declaration asked for should be made in order that plaintiffs might be allowed to have the other reliefs. With regard to one of the kobalas which relates to the 6 annas share of the properties it is pointed out that the plaintiff was not a party and, therefore, it is necessary that that kobala should be declared void as against him. But with regard to the other kobala which relates to the 10 as. share of the properties, it is pointed out that the plaintiff is a party along with his deceased brother and mother. It is alleged in the plaint that the plaintiff was a minor at the time, that he was not entitled to sell, his title not having arisen at the time of the kobala, and that the document was executed under undue influence. In so far as the allegation as to minority is concerned, is contended by Dr. Basak that on that ground it is not necessary that this kobala also should be declared void as against the petitioner. We do not think, however, that this contention can be accepted having regard to the fact that the plaintiff is a party to the document. Therefore, the view must be accepted that it is necessary that the declaration as asked for with regard to this kobala should be made before the plaintiff can be entitled to have the other reliefs. That being the position it cannot be said that the suit is not one for declaration.