Abdul Rahim @ Guddu S/O Abdul Majid Vs. Sheikh Qayyum S/O Sheikh Rashid and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the defendants had filed the documents and since the trial court had not exhibited the document dated 11.4.1966, called the bakshis patra, on the ground that the document was not a registered document, the petitioners filed an application for exhibiting the document for effectively deciding the dispute between the parties. according to the learned counsel for the petitioner, the document was a hiba or gift under the muslim law and perusal of the document dated 11.4.1966 clearly revealed that it was in the form of a memorandum written and signed by five panchas on a statement made by the donor.vasanti a. naik, j. 1. rule. rule made returnable forthwith. the petition is heard finally at the stage of admission as the notice for final disposal was issued to the respondents by an order dated 27.4.2009.2. by this petition, the petitioner impugns the order passed by the civil judge, junior division, samudrapur on 18.3.2009 rejecting the application filed by the petitioner for exhibiting the document dated 11.4.1966, called the bakshis patra.3. the petitioners are the original defendants. the defendants had filed the documents and since the trial court had not exhibited the document dated 11.4.1966, called the bakshis patra, on the ground that the document was not a registered document, the petitioners filed an application for exhibiting the document for effectively deciding the dispute between the parties. it was the case of the petitioner that the document dated 11.4.1966 was admitted by the plaintiff in his cross examination and the document being 30 years old, ought to have been exhibited.4. the prayer made by the petitioner in the said application was strongly opposed by the respondent. the trial court, by order dated 18.3.2009 rejected the application.5. shri akbani, the learned counsel for the petitioner submits that the trial court committed an error in rejecting the application by holding that the document was compulsorily registrable under the registration act. according to the learned counsel for the petitioner, the document was a hiba or gift under the muslim law and perusal of the document dated 11.4.1966 clearly revealed that it was in the form of a memorandum written and signed by five panchas on a statement made by the donor. the learned counsel for the petitioner then relied on the provisions of section 149 of the mullas principles of mohammedan law and section 129 of the transfer of properties act, to submit that it was not necessary to register the gift deed under the muslim law and nothing in chapter 7 of the transfer of property act, would affect any rule of mohammedan law. the learned counsel for the petitioner submitted that the trial court was not justified in rejecting the application by holding that the gift deed was compulsorily registrable as the petitioner had not stated in the application, as to whether the gift was made under the muslim law or was made under the general law.6. shri a.s. chandurkar, the learned counsel for the respondent no. 1 to 6 supported the order passed by the trial court and relied on the decisions of the andhra pradesh high court reported in air 1962 ap 199 and 1998 (2) civil lj page 172 to canvass that the mohammedans are not prevented to effect transfer in the manner under section 123 of the transfer of property act 1882 and since it was the case of the petitioner that the document dated 11.4.1966 was a hiba or gift under the muslim law, it was rightly held that the document required registration and the said document could not be exhibited. the learned counsel for the respondents submitted that the document was compulsorily registrable and the trial court rightly rejected the application filed by the petitioner. in any case, according to learned counsel for the respondents, exhibition of document is just marking it for identification and mere exhibition of the document would not prove the contents of the documents as true. the learned counsel for the respondent relied on an unreported decision of this court in criminal application no. 714/2009 dated 3.4.2009 to substantiate his submission.7. i have considered the submissions made on behalf of the parties and perused the relevant provisions of the mohammedan law and the transfer of properties act along with the impugned order dated 18.3.2009. i have also perused the document dated 11.4.1966. a bare perusal of the document dated 11.4.1966 prima facie shows that it is not a gift in the nature of gift which is made under the provisions of section 123 of the transfer of property act, as the mohammedan donner in t his case has merely made a statement before the panchas in regard to the gift and the same has been incorporated in writing and is signed by five panchas. it prima facie appears from the perusal of the document dated 11.4.1966 that it is not a gift under the provisions of section 123 of the transfer of property act and appears to be a gift under the mohammedan law. merely because, there is no mention in the application filed by the petitioner that the gift was one under mohammedan law, it cannot be said that the gift was compulsorily registrable. it was necessary for the trial court to consider the document dated 11.4.1966 before holding that it was compulsorily registrable and the document could not have been exhibited.8. under the provisions of section 149 of the mullas principles of mohammedan law, there are only three essential conditions of a valid gift and those are 1] declaration of gift by the donor, 2] an acceptance of the gift, express or implied, by or on behalf of the donee and 3] delivery of possession of the subject of the gift by the donor to the donee. . it is stated in section 150 that if these conditions are complied with, the gift is complete. in fact, sub-section 3 of the section 150 provides that if it is proved by oral evidence that gift was complete as required by law, it is immaterial that the donor has also executed the deed of gift, but the deed had not been registered as required by the registration act, section 17(a). thus in view of the provisions of section 150(3) of the mullas principles of mohamedan law, it is clear that a gift made by the mohamedan donor in writing is not compulsorily registrable. the trial court ought to have exhibited the document dated 11.4.1966 in the facts and circumstances of the case. 9. it is however, rightly submitted on behalf of the respondent that exhibition of document is for the purpose of marking it for identification and mere exhibition of it would not amount that the contents of the documents are proved to be true. the trial court should therefore bear this in mind. for the reasons recorded herein above, the writ petition is allowed. the impugned order passed by the trial court on 18.3.2009 is hereby quashed and set aside. the application filed by the petitioner for exhibiting of document dated 11.4.1966 is allowed. rule is made absolute in the aforesaid terms with no order as to costs.