DURGA MISSIR Vs. RAM NARAIN LAL

JUDGEMENT

(1.) This is a court-fee matter relating to court-fees on the plaint and on the memorandum of appeal to the lower appellate Court. The question of court-fees chargeable on the memorandum of second appeal to this Court has already been decided by the Taxing Officer, and court-fees paid accordingly.

(2.) It appears that the defendants-appellants had executed a mokarrari deed in favour of the plaintiffs-respondents, but subsequently cancelled it, and refused to make over the deed or to endorse the registration receipt in favour of the plaintiffs, so that they may be able to withdraw the registered document from the registration office. The plaintiffs, therefore, instituted the suit for a declaration that they were entitled to get back the registration receipt in respect of the mukarrari deed duly endorsed in their favour, or the mukarrari deed itself. The mukarrari deed was in respect of a premium of Rs. 3,300 and creating liability for payment of RS. 3 per year as rent. It appears from the judgments of the Courts below that the defendants had raised the question of the sufficiency of the court-fees and the maintainability of the suit in view of the provisions of Section 42, Specific Relief Act. The Court of first instance returned the plaint for presentation to the proper Court, taking the view that the valuation placed on the plaint was much too low, and that the plaint, if properly valued, would be beyond the pecuniary jurisdiction of the Court, But, on appeal, the learned District Judge held that the subject- matter of the suit was the document only, and not the property covered by the document. In that view of the matter, the appellate Court directed that the court- fee paid was sufficient on the basis that the suit related only to a document within the meaning of Section 7(iv)(a), Court-fees Act, the relevant portion of which runs as follows: In suit for moveable property where the subject-matter has no market value, as, for instance in the case of documents relating to title. The suit was tried on that basis, and decreed. An appeal from that decision was dismissed by the lower appellate Court. In this Court, on second appeal, the learned Stamp Reporter made a report to the effect that the plaint had been valued at Rs. 150 only which was an arbitrary valuation, and that the proper valuation should be the sum of Rs. 3,300, the amount of premium promised to be paid, plus Rs. 8, the annual rent. According to the Stamp Reporter, the suit fell within Section 7(x)(c), Court-fees Act, that is to say, it was a suit for specific performance of a contract of lease liable for court-fees according to the aggregate amount of the fine or premium (if any) and of the rent agreed to be paid during the first year of the term. Reliance was placed by the Stamp Reporter on the cases of Chet Singh V/s. Mul Singh 10 P.R. 1871, Phul Kumari V/s. Ghanshyam Misra 35 I.A. 22 and Faqir Chand V/s. Ram Dutt A.I.R. 1924 Lah. 489. The learned Registrar as Taxing Officer accepted the report, and exacted court-fee from the appellants on that basis.

(3.) The question now is whether the parties to this litigation are liable to pay court-fee on the basis adopted by the Stamp Reporter and accepted by the Taxing Officer in respect of the plaint and the memorandum of appeal in the lower appellate Court. In my opinion, the view adopted in this Court as regards the court-fee leviable on the plaint and the memorandum of appeal is not correct. Court-fee is leviable on the plaint as framed, and not on the plaint as it ought to be framed. The plaint as framed may or may not be well founded in law. But that is no criterion for exacting court-fees which are governed by a fiscal statute. It should be noted that the plaintiffs have admitted in their plaint that no consideration had passed till then in respect of the mukarrari deed in question. Even the forty-two rupees which was to be paid in cash, had not been paid to the alleged lessors, the appellants in this Court. Rupees 3,258 was payable to different mortgagees under registered mortgage bonds. That amount as alleged, was to be paid by the mukarraridars, the plaintiffs. The plaintiffs, admittedly, had not paid that sum, as they were not in possession of their title deed which, according to them, would entitle them to approach the mortgagees to accept the mortgage money, and thus release the mortgaged properties including the subject-matter of the mukarrari deed in question. Hence, this suit was not in form or in substance one for specific performance of a contract of lease, nor for possession of the property; it was a simple suit for recovery of the document. The learned Stamp Reporter is not correct in saying that the loss to the plaintiffs would be the sum of Rs. 3,800, the amount of the premium. As no portion of that amount had yet passed from them to the other party or to the mortgagees in possession, it cannot be said that the loss to the plaintiffs which is sought to be avoided by the institution of the suit would be the sum of Rs. 3,300. Clearly, therefore, the decision of their Lordships in the case of Phul Kumari V/s. Ghanshyam Misra 35 I.A. 22, has no application to the facts of the present case. The decision of the Punjab Chief Court in Chet Singh V/s. Mul Singh 10 P.R. 1871, is more in point. In that case, the plaintiff sued to recover possession of sixteen bonds executed in his favour by the third parties which had been entrusted to the defendant as the plaintiff's agent. Those documents secured an aggregate sum of Rs. 1871. In the course of the judgment of the Court, it is said: Bonds are personal property, and their value is derived from the interest secured by their terms. They have a value in themselves, as forming additional security for rights, and there does not seem to be any reason why they should not be held to be property in the ordinary sense of the word. If they are property, they must not be valued as so many pieces of paper or manuscript: they must have their actual value stated in the suit, and that can be nothing less than the amounts for which they are held as securities. In that case, therefore, their Lordships treated the documents as valuable securities evidencing the advance of so many money which could be claimed on their basis. Bat in the present case no amount has passed from one party to the other. The plaintiff's cause of action was the nondelivery of the document, with the result that they were not able to pay up the pre-existing mortgages created by the defendants. If and when, the plaintiffs recover the document they sought to recover from the defendants, they would be called upon to pay the three thousand three hundred rupees, the premium reserved in the document. In the other case relied upon by the learned Stamp Reporter, namely, Faqir Chand V/s. Ram Dutt A.I.R. 1924 Lah. 439, the plaintiff sought the following reliefs: (1) return of the original deed; or, in the alternative, (2) execution of a fresh deed; and (3) registration of either deed mentioned in (1) or (2). The High Court ultimately held that, reading the plaint as a whole, it was a suit in substance for specific, performance of a contract of sale. In that case, the plaintiff had stated that he was already in, possession of the property, and therefore, did not seek recovery of possession, and further added that, if the Court found the plaintiff not to be in possession, then leave to amend his plaint. In those circumstances, the Court naturally held, that, though not in form, but still in substance, it was a suit for specific performance of a con-tract of sale. In the present case, the plaintiffs would not be entitled to possession of the property so long as they do not redeem the same by payment of the pre-existing mortgage debts. Hence, so long as the plaintiffs had not parted with their money, and so long as they had not done so, their loss was not measurable in money. Hence, it was a suit of the nature contemplated in Section 7(iv)(a), Court-fees Act where the subject, matter has no market-value, as, for instance, a document relating to title. It has been held by Garth C.J. and Mark by J. in the case of Jugernauth Doss V/s. Baijnath Doss 4 Cal. 322, that a suit to recover title deeds, although it may involve a question of title, is not a suit to obtain possession of land or to deal in any way with the land itself. The observations of their Lordships of the Calcutta High Court support the view that the present suit is no, one for the property covered by the mukarrari deed but only for the title deed, apart from the property. In that view of the matter, it must be held that the valuation put by the plaintiffs on the plaint is not arbitrary and nominal as repotted by the learned Stamp Reporter. It follows that neither party is liable to pay additional court-fees on the plaint in the trial Court or on the memorandum of appeal in the lower appellate Court. Narayan J I agree.