Shri Jayant Bhimsen Joshi And Ors vs Shri Raghavendra Bhimsen Joshi ...
2015 Latest Caselaw 464 Bom

Sherla V.



                                                                            ao.149.2014(R).doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                     
                                APPEAL FROM ORDER NO.149 OF 2014

            Shri Jayant Bhimsen Joshi & Ors.                  ... Appellants




                                                             
                  Vs.

            Shri Raghavendra Bhimsen Joshi & Ors.             ... Respondents




                                                            
            Mr.Rajendra V. Pai a/w A.R. Pai a/w Ms.N.N. Thakkar i/b Mrs.Bina R. Pai
            for the Appellants
            Mr.G.S. Godbole a/w Sheetal Patil i/b S.S. Panchpor for Respondent No.1




                                                  
                                           ig   CORAM: MRS.MRIDULA BHATKAR, J.

                             ORDER RESERVED ON: 12th OCTOBER, 2015
                           ORDER PRONOUNCED ON: 23rd OCTOBER 2015
                                         
            ORDER:

1. This Appeal from Order is directed against the order dated

27.9.2013 passed by the 5th Joint Civil Judge, Senior Division, Pune

granting ad-interim injunction against defendant Nos.1 to 4. The

defendants have filed this appeal against the said order. However,

pursuant to the amendment in Maharashtra Civil Courts Act, in 2015,

which came into effect from 1.9.2015, the pecuniary jurisdiction of the

District Court to entertain an appeal under section 28(A) of the

Maharashtra Civil Courts Act is increased upto Rs.1 crore, inter alia, an

oral application is made to transfer this appeal to the District Court. This

oral application is opposed vehemently by the appellants on the ground

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that the appeal is valued exceeding Rs.1 crore and, therefore, it cannot be

transferred. The plaintiff, a son of the first wife of late Bharatratna

Bhimsen Joshi, has filed the suit for declaration, partition and injunction,

against his real and step brothers and sisters claiming 1/7 th share in the

property valued to Rs.49 lakhs and accordingly, the Court fee was paid on

the said valuation. A will dated 22.9.2008 executed by late Bharatratna

Bhimsen Joshi is challenged alongwith the sale deeds and the gift deeds

which were executed by him during his lifetime. Thus, transfer of this

matter to the District Court is disputed on the ground of proper valuation of

the suit due to amended section 28(c) of the Maharashtra Civil Courts Act.

2. Mr.Pai, the learned Counsel for the appellants, has submitted that

the plaint is a specimen of a clever and astute drafting. The averments

and the prayers made in the suit cannot be taken on its facevalue but the

real reliefs claimed in the plaint are required to be considered to determine

the exact valuation of the subject matter. He submitted that under section

28C, "all appeals in which the amount or value of the subject matter does

not exceed one crore rupees and pending before the High Court, shall

stand transferred to the concerned District Court" and, therefore, it is

necessary for the High Court before transferring this appeal to ascertain

what is the value of the subject matter. The plaintiff, in para 17 of the

plaint, has valued the entire property as Rs.3,40,00,000/- as he has

prayed for various reliefs in his prayer clauses (c), (d) and (e). The

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description and valuation of the properties are specified in schedule (i) to

(iii) of the plaint, where the plaintiff prays that the sale deeds and gift

deeds are to be declared as void and not binding on him. Therefore, he

prays for avoidance of sale and contract of sale of the two flats, then, as

per section 6(iv)(ha) of the Maharashtra Court Fees Act, it is to be paid ¼ th

of the ad-valorem on the value of the property. The appropriate court fees

is paid on the declaratory reliefs under section 6(iv)(j) of the Maharashtra

Court Fees Act as the declarations are not susceptible to monetary value

and it is to be valued for Rs.1,000/-. However, the properties mentioned in

schedule are monetarily susceptible as the break-up of the value of each

property is given, and it is necessary for the plaintiff to pay ad-valorem

court fees. Learned Counsel calculated the value of the subject matter for

Rs.3,40,00,000/- that is the total value for which the declaration is sought

and additionally, Rs.47 lacs i.e., 1/7th share claimed by the plaintiff in the

property so that prayer is also to be valued for the purposes of valuation of

the subject matter. In order to support his submissions on this point, he

relied on the judgments in Shamsher Singh vs. Rajinder Prashad &

Ors.1; Cotseeds Corporation vs. Cotton Corporation of India & Ors. 2;

Pushpaben Vishwambarlal Khetan & Ors.vs. Heena Narendra Patel &

Ors.3 and Laxmidas N. Madhvani vs. Madhvani Private Ltd.4

1 AIR 1973 SC 2384 2 1988 GLH(2) 140 3 2015 (2) Bom. C.R. 614 4 1986 (88) BOMLR 308

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3. Mr.Godbole, learned Counsel for the respondents, in reply,

submitted that the objection on the Court fees cannot be raised at

appellate stage. The enquiry as to the valuation of the suit under section 8

of the Bombay Court Fees Act can be made only before the trial Court. He

submitted that in all the cases relied on by the appellants, the objections to

the Court fees was taken before the trial Court and thereafter the order

passed therein was a subject matter before the higher courts. In the

present case, no such objection was raised in respect of Court fees either

under section 11 of the Suits Valuation Act or under Order 7 Rule 11(b) of

Civil Procedure Code. He further submitted that in a suit for partition and

separate possession of a share of a joint property, the plaintiff has to pay

Court fees according to the value of the share in respect of which the suit

is instituted and it falls squarely under section 6(vii) of the Act. He further

argued that the submission of the learned Counsel for the appellants that

prayer clause (e) pertains to the cancellation of sale deeds or gift deeds is

not correct because in prayer (e), the plaintiff does not seek any order of

cancellation of those sale deeds but he claims only his share in the sale

deeds. Therefore, section 6(iv)(ha) cannot be attracted. He further

submitted that in schedules (i) to (iii) of the plaint, the description of the

properties is given. In schedule (iv), the properties are in respect of a

share claimed in the royalties. The 1/7 th share claimed comes to Rs.47

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lacs. He submitted that this Court should not go into the issue of proper

valuation of the suit as it is not the correct forum to decide the same and

hence, this appeal is to be transferred to the District Court. He submitted

that in a substantive appeal also, the issue of valuation cannot be raised

and this is an appeal against order. In support of his submissions,

Mr.Godbole relied on the judgment in the case of Suhrid Singh alias

Sardool Singh vs. Randhir Singh & Ors5.

4. By way of rejoinder, Mr.Pai, the learned Counsel for the appellants,

has submitted that section 11 is not applicable to this Appeal from Order

but it is in respect of an appeal where a final decree is passed. He

submitted that section 11 pertains to matters which are covered under

section 99 of Civil Procedure Code which pertains to a final decree. He

further submitted that the enquiry conducted at this stage is not for non-

suiting the plaintiff under Order 7 Rule 11(b) of the CPC but it is only for

the defendants' right to choose and fix appropriate appellate forum. Under

section 28C of the Maharashtra Civil Courts Act, the word 'court' is not

defined so it can also be considered as appellate Court.

5. Under section 28C, this Court has to consider whether the value of

the subject matter of the suit or appeal is below Rs.1 crore or it exceeds

the said amount. Section 28C reads as follows:

5 (2010) 12 SCC 112

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"28C. On the commencement of the Maharashtra Civil Courts (Amendment) Act, 2015, all appeals in which the amount or value of

the subject matter does not exceed one crore rupees and pending before the High Court immediately before such commencement, shall stand transferred to the concerned District Court and such

District Court may deal with such appeal from the stage which was reached before such transfer or from any earlier stage or de-novo as such court may deem fit:

Provided that, this section shall not apply to any appeals

which are pending before the High Court, which are statutorily provided under the relevant enactment before such Court."

(emphasis added)

6. By section 28C of the Maharashtra Civil Courts Act, a suit not

exceeding Rs.1 crore stands transferred as on 1.9.2015. This appeal is

filed by the defendants and therefore, the say of the defendants in respect

of the valuation of the suit is not be read as objection raised under Order 7

Rule 11(b) of the Civil Procedure Code. This appeal is filed challenging

the ad-interim order passed by the learned trial Judge. Therefore, whether

this appeal is to be entertained by the High Court or the District Court in

view of the change and increase in the pecuniary jurisdiction, is a point to

be determined by the High Court.

7. The subject matter depends on the reliefs claimed in the plaint. This

is a suit claiming share in the joint property, which is covered under section

6(vii) of the Court Fees Act, which states that a co-owner has to pay the

Court fees according to the value of the share in respect of which he

instituted a suit. Prayer clause (a) pertains to declaration of will dated

22.9.2008 as false and fabricated. Prayer clause (b) seeks declaration

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that the plaintiff and the other defendants are the only legal heirs and

successors. Thus, prayers (a) and (b) are pure declaratory reliefs which

are to be covered under section 6(iv)(j) of the Act as they are not

monetarily susceptible. Valuation in prayer clause (c), (d) and (e) are

disputed. Prayer clause (c) is made in respect of avoidance of the gift

deed in which he prays his 1/4th share in the properties, which are

mentioned in schedule (i). The value of the property is considered as

Rs.1,68,43,680/-. In prayer clause (c) he prays for a declaration that gift

deed dated 28.7.2006 is illegal, null and void and not binding on the

plaintiff and defendant Nos.5 to 7 and he claims his 1/4 th share in the said

property. In prayer clause (d), he challenges another gift deed dated

24.1.2006 and claims ½ share in the said property. In prayer clause (e),

the plaintiff seeks declaration that two deeds of apartments dated

3.5.2004, which were registered on 11.5.2004, by which the two

apartments were purchased which is in schedule (iii), are bogus and not

binding on the plaintiff and he demanded his right in the suit properties,

which were purchased. All these prayers of the plaintiff in fact are two fold.

Firstly, he requests for declaring deeds void and not binding on him and

secondly, claims his share therein.

8. In the case of Shamsher Singh (supra), the Supreme Court held

that 'a mere astuteness in drafting the plaint will not be allowed to stand in

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the way of Court looking at the substance of the relief asked for'. In the

said matter, the Court was dealing with section 7 of the Court Fees Act

and under Order 7 Rule 11 of the CPC. It was also pointed out that 'in

deciding whether a suit is purely declaratory, the substance and not merely

the language or the form of the relief claimed is to be considered'.

In the case of Cotseeds Corporation (supra), a learned Single

Judge of the Gujarat High Court took the same view in respect of clever

drafting and held that the Court should be careful before accepting the

statement that the subject matter of the suit is not susceptible to monetary

evaluation. The phrase 'susceptible of monetary evaluation' means

capable of or admitting of monetary evaluation.

In the case of Pushpaben Vishwambarlal Khetan & Ors. (supra),

a learned Single Judge of this Court had an opportunity to deal with the

issue of correct evaluation of the Court fees. In the suit, 8 plaintiffs

claimed that the defendants be ordered to pay jointly and severally a sum

of Rs.8 crore i.e., Rs.1 crore each. In the said suit relying on section 18 of

the Bombay Court Fees Act, which states about multifarious suits wherein

ad-valorem fees is to be charged separately on each of such subjects, the

Court directed the plaintiffs to pay separate court fees of Rs.1 crore each.

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In the case of Laxmidas N. Madhvani (supra), before a learned

Single Judge of this Court, a declaration regarding the allotment of shares

in favour of certain shareholders was prayed as void and also there was a

consequential relief prayed for allotment of shares to the plaintiff. It was

held that if a suit is filed for declaration or avoidance of any sale, the said

suit necessarily is covered by clause (ha) of section 6(iv) of the Bombay

Court Fees Act and clause (j) of section 6(iv) will not apply to any such

suit.

9.

The ratio laid down in all the judgments cited by Mr.Pai appearing

for the appellants, is binding in view of the facts and the nature of the

plaint in those respective suits. The applicability of the ratio of these cases

is to be considered only after going through the averments made in the

present plaint and the reliefs claimed in the present plaint. It is to be noted

that in all these cases, objection to the valuation of the subject matter was

raised before the court of first instance and nt before the appellate Court.

10. I place reliance on the case of Suhrid Singh alias Sardool Singh

(supra), the Supreme Court dealt with section 7(iv)(c) and (v) of the Court

Fees Act, 1870 in the State of Punjab which are equivalent to section 6(iv)

of the Maharashtra Court Fees Act. It was held that where the suit is for

declaration and consequential relief of possession and injunction, then the

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Court fees is governed by section 7(iv)(c) of the said Act. It was held if

there is no prayer for cancellation of sale deeds and there is a prayer for

declaration of deed as void and not binding on the plaintiff, the said suit

was not by executant of the sale deeds then, the Court fee was

computable under section 7(iv)(c) of the Act which states court fee shall be

computed according to the amount at which the relief sought is valued on

the plaint. The order passed by the High Court and the trial Court taking

view that the Court fees is required to be paid ad-valorem, was set aside.

11.

On this background, actual and real valuation is to be examined.

Plaintiff is not an executant of the sale deed and the gift deeds. He

basically wants his share in the property which is gifted and the property

which is sold. He limits his claim to 1/7th share in the whole property which

is quantified by him to Rs.47 lacs. Thus, he in fact, is not praying for a

cancellation of the sale deed and the gift deeds but he prays for a

declaration that these deeds are void as he claims his 1/7 th share in those

properties. It can be put in other words that if anyhow the respondent is

given his share by paying the amount of Rs.47 lacs without cancelling the

said gift deed or sale deed, the plaintiff's claim can be satisfied. Thus, in

order to establish his claim it is necessary for him to make an initial prayer

of declaration which is a source of his prayer of 1/7 th share in the said

property. Thus, the demand of 1/7th share is not a consequential relief. It

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is a main relief. He has valued the entire property as per the market value

to the tune of Rs.3,40,00,000/- and therefore, he could carve out his 1/7 th

share as Rs.47 lacs and it is susceptible to the monetary valuation.

Therefore, for the purpose of subject matter in section 28C of the Act, his

claim of 1/7th share in the property as pleaded in the plaint is a subject

matter. Thus, the Appeal does not exceed Rs.1 crore and hence, stands

transferred.

12. Appeal is disposed of accordingly.

13. The learned Counsel for the appellant submits that this order be

stayed for four weeks as he wants to challenge the order before the

hon'ble Supreme Court. Hence, the order is stayed for four weeks.

(MRIDULA BHATKAR, J.)

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