BIRAJA CHARAN NANDA Vs. SAILAJA CHARAN NANDA

JUDGEMENT

(1.) This rule is directed against an order relating to payment of court-fees upon a plaint. The petitioner and the opposite party are brothers. The allegations in the plaint, in so far as they are material to the question before use, are that the petitioner's father created a trust in respect of some properties and that in respect of certain charitable institution he had intended to set apart certain other properties for their maintenance. But before he could make any definite arrangement he died. Subsequently the petitioner and his brother came to terms and executed two agreements, by the second of which it was stipulated that in order to give a legal form to the disposition of the properties as desired by their deceased father the parties should join in executing a deed of trust for the benefit of the charitable institutions and after the execution of the said deed they would divide the remainder of the estate into two equal shares. The opposite party failed to comply with this agreement, whereupon the petitioner brought the present suit. The two relevant prayers are as follows: (ka). That it may be held and declared that the properties specified in Schedules (ka) to (kha) of the family agreement executed on 19 Chaitra 1340 B.S. (2 April, 1934) are given and dedicated to the religious and charitable institutions mentioned in the said agreement and that they are impressed with the trust mentioned in the agreement. (kha). That if, according to the just decision of the Court, the plaintiff does not get relief as per prayer (ka) aforesaid, then a decree for specific performance may be passed against the defendant directing him to execute and register the trust deed filed herewith jointly with the plaintiff.

(2.) It may be added that after the institution of the present suit the opposite party also brought a suit for partition of the whole estate including the trust properties. In the plaint, the petitioner gave the valuation of the suit as Rs. 16,000 for the purpose of jurisdiction, but subsequently it was directed by the Court that the plaint should be amended by valuing the suit at Rs. 8000 for the purpose of jurisdiction. The petitioner paid Rs. 20 as court-fees taking the suit as one for declaration. A question arose as to whether the petitioner should not be made liable for payment of ad valorem, court-fees. The Subordinate Judge has decided that the court-fees payable are on the aforesaid amount ad valorem. Against that order, the present rule has been obtained. In the course of his order, the Subordinate Judge pointed out that under Section 8, Suits Valuation Act, the value for the purposes of court-fees and for jurisdiction shall be the same and, since the petitioner himself put the value at Rs. 16,000 for the purposes of jurisdiction, that must be the value for the purposes of court-fees as well. It is pointed out for the petitioner that the j Subordinate Judge has put the matter in the wrong order and the proper method is to value for the purpose of court-fees first and then to take that value for the purpose of jurisdiction : Sailendra Nath V/s. Ram Chandra (1921) 8 A.I.R. Cal. 84. The learned Senior Government Pleader has conceded that this argument is correct and that the view of the Subordinate Judge on this point is wrong.

(3.) The real question is what is the court-fee payable. The principle undoubtedly applies that a fiscal Statute must be construed strictly in favour of the subject. There is no Section in the Court-fees Act which lays down any general principle of valuation which should be applicable to all kinds of suits, but Section 7 lays down certain rules of computation payable in certain suits and the computation varies according, to the nature of the suit. Sometimes computation is made according to valuation, sometimes according to the relief sought, and sometimes according to the subject-matter. The principle which the Subordinate Judge has followed is that the valuation should be in accordance with the subject-matter in dispute, which it is taken to be the property mentioned in the plaint. This method of valuation has also been supported in this Court by the learned Senior Government Pleader. He has relied on Art. 1, Schedule 1 which lays down "the subject-matter in dispute" as the standard of computation. The learned advocate for the petitioner on the other hand has relied on Schedule 2, Art. 17, Clause (vi) which lays down a fixed fee for every other suit where it is not possible to estimate at a money value payable the subject-matter in dispute and which is not otherwise provided for by this Act.