N. Vittal Rao Vs. N. Raja Rao - Court Judgment

Excerpt:
- orders.v. maruthi, j.1. this c.r.p. is filed against the order in i.a.no. 358 of 1997 in o.s.no. 29 of 1985 on the file of subordinate judge, adoni dated 6-8-1997.2. i.a.no. 358 of 1997 is filed to amend the plaint under order 6 rule 17 c.p.c. the suit is filed for specific performance of an agreement of partition entered into on 28-4-1983. the brief facts are that there was a partition between the members of the joint family in respect of all other properties except the properties covered by the agreement dated 28-4-1983. in the said agreement the manner in which the item of the property covered by the agreement is to be partitioned is mentioned. when the defendant did not honour the agreement the plaintiff filed the suit o.s.no. 29 of 1985 seeking specific performance of the agreement.....

Judgment:
ORDER

S.V. Maruthi, J.

1. This C.R.P. is filed against the order in I.A.No. 358 of 1997 in O.S.No. 29 of 1985 on the file of Subordinate Judge, Adoni dated 6-8-1997.

2. I.A.No. 358 of 1997 is filed to amend the plaint under Order 6 Rule 17 C.P.C. The suit is filed for specific performance of an agreement of partition entered into on 28-4-1983. The brief facts are that there was a partition between the members of the joint family in respect of all other properties except the properties covered by the agreement dated 28-4-1983. In the said agreement the manner in which the item of the property covered by the agreement is to be partitioned is mentioned. When the defendant did not honour the agreement the plaintiff filed the suit O.S.No. 29 of 1985 seeking specific performance of the agreement dated 28-4-1983.

3. At the stage of arguments the petitioner filed three I. As., i.e., I.A.Nos. 356, 357 and 358 of 1997. I.A.No. 356 of 1997 is filed to reopen the suit to enable the plaintiff to let in further evidence. I.A.No. 357 of 1997 is filed under Order 18 Rule 17 C.P.C. to recall the plaintiff for further evidence and LA. No. 358 of 1997 is filed under Order 6 Rule 17 C.P.C. to amend the plaint as set out therein. All the three petitions were allowed by the Court below. However, while allowing the amendment of the plaint he directed the payment of Court fee on 3/4 of the market value of the property representing his share viz., Rs. 1,25,752/- under Section 39(e) of the A.P. Court Fees and Suits Valuation Act (for short the 'Act').

4. The petitioner contended before the Court below that he is seeking enforcement of a promise made on 28-4-1983 and, therefore, the Court fee is payable under Section 39(e) of the Act. Since the promise under the Agreement is incapable of value, a fixed Court fee is payable under Section 39(e) read with Section 47 of the Act.

5. The learned Judge disagreed with this contention and relying on the decision in Pisupati Ramachandraiah v. Pisupati Lakshmidevamma, 1965 (1) An.W.R. 138 held that the consideration for the promise sought to be enforced under the alleged agreement, is nothing but the value of such properties regarding which the petitioner is seeking respondent to acknowledge the exclusive right and title when the case of both the parties is that there has been already division in . status. In other words, according to the learned Judge under agreement dated 28-4-1983 the petitioner is entitled for a share which is capable of being valued and, therefore, the Court fees payable is not a fixed Court fee, but it should be computed on the 3/4 of the market value of the immovable property. Aggrieved by the same, the present C.R.P. is filed.

6. The main arguments of the learned Counsel for the petitioner is that there is no dispute about his right for partition and his share in the properties. The only dispute is with reference to the manner in which the properties are to be divided under the agreement. Since the defendant has not honoured the agreement entered into he was compelled to file the suit. Therefore, it is incapable of valuation. Hence, fixed Court fee is payable under Section 39(e) read with Section 47 of the A.P. Court Fees and Suits Valuation Act. He relied on the judgment of the Madras High Court in Manikkam v. Murugesam, AIR 1933 Madras 431. While the learned Counsel for the respondent reiterated his contention raised before the lower Court and submitted that in view of the Bench decision in Pisupathi Ramachandraiah's case (1 supra) the petitioner is liable to pay Court fees on 3/4 of the market value of the property and not a fixed Court fee.

7. In order to consider the arguments advanced by both the Counsel it is necessary to refer to Sections 39 and 47 of the A.P. Court Fees and Suits Valuation Act. Section 39 reads as follows:-

'Suits for specific performance:- In a suit for specific performance, with or without possession, fee shall be payable:

(a) -------------------------

(b) -------------------------

(c) -------------------------

(d) -------------------------

(e) In other cases, where the consideration for promise sought to be enforced has a market value, computed on the market value of the movable property or three-fourths of the market value of the immovable property or where such consideration has no market value, at the rates specified in Section 47.'

Section 47 reads as follows:

'Suits not otherwise provided for:- In suits not otherwise provided for, fee shall be payable at the following rates:

When the amount or value of the subject-matter in dispute-

(i) -----------------

(ii) -----------------

(iii) -----------------

(iv) exceeds Rs. 10,000/-............Rupees three hundred.'

8. From a reading of the Section 39(e) and Section 47 it appears that in case where the market value of the property in suit for specific performance is incapable of valuation a fixed Court fee is to be paid at the rates specified in Section 47 C.P.C.

9. The question therefore is-Is the learned Judge right in holding that the agreement dated 28-4-1983 is capable of valuation?

10. In order to consider whether the promise made under agreement is capable of valuation, it is necessary to look into the averments made in the plaint. The plaint averments are that there was already a partition in respect of some of the items in the properties and that there was an agreement between the plaintiff and the defendants on 10-1-1983 in respect of certain properties which were kept joint stipulating that they have to be divided later according to their convenience which are mentioned in Schedule 'C. The agreement refers to the division and mode of division of various items of property. In the agreement he has undertaken to pay a sum of Rs. 4,125/- towards his share for the construction of partition wall and that he also agreed to divide latrine and the passage along with the adjoining garage and open site with one Neem Tree beyond it and refers to the manner in which other items of the property were to be divided. It is also stated that though the plaintiff gave a notice asking the respondent to implement the agreement of 28-4-1983 there was no response. From a reading of the plaint it is clear that there was no dispute about the right of the petitioner for partition of the properties and his share and there was already a partition in 1975 and there was division of status. The only dispute is the method and manner in which the partition in respect of the properties which were kept joint is to be effected. There was a division of status of the plaintiff and the defendant and they were separated. Since there is no dispute about the right of the petitioner for partition and his share in the properties since there is already a division in status, the agreement is incapable of valuation as the agreement involves the manner in which the properties that were kept joint are to be partitioned.

11. In the judgment in Manikkam v. Murugesam (2 supra) Madras High Court held that 'in the plaint, there is no prayer for a declaration that the partition deed referred to thereunder should be set aside nor is any declaration asked for in respect of it. The trend of the plaint seems to be, that though severance in status is effected, there was no actual division by metes and bounds, but on the other hand, the plaintiffs and defendants are in joint possession (para 22 of the plaint). So far as the partition of the immovables is concerned in view of the prior division in status, the suit is for division and separate possession of the plaintiff's share as against other tenants in 35 common.' In those circumstances it was held that a fixed fee of Rs. 100/- is to be paid.

12. In my view the judgment of Madras High Court is relevant on the facts and circumstances of the case. There was a partition resulting in division in status and what remained to be considered is actual division by metes and bounds in respect of other properties kept joint. The agreement provides the manner in which the item of property which was left joint is to be divided. Therefore, in my view the promise under the agreement is incapable of valuation as he has not claimed any specific share in the item of property nor did he ask for partition of the joint family property which is denied to him. The only relief claimed is the division by metes and bounds of the property kept joint.

13. The judgment relied on by the learned Counsel for the respondent in Pisupati Ramachandraiah's case (1 supra) a Bench was considering a case where the petitioner was claiming a particular share viz., 1/5 share in the property of his father. The brief facts as stated in the judgment were as follows: 'the petitioner laid action for specific performance of a family arrangement said to have been arrived at between himself and defendants, by and under which he was to get 2/5 share of 'A-I' schedule excluding the items 1, 2, 3 and 5 to 7:1/5 share in the compensation to be awarded for item 4 of 'A' schedule and item 2 of 'A-I' schedule, in addition to 'B' schedule and 1/5 share of 'C' schedule. In the alternative he prayed for a declaration that he was entitled to 2/5 share in 'A' and 'A-I' schedules and to the entirety of 'B' and 'C' schedules.'

14. From the facts narrated above the claim of the plaintiff is for a particular share of the property. Since he has claimed a specific share viz., 1/5 share which is capable of valuation, the learned Judges have held that the Court Fees payable is on the 3/4 of the market value. The judgment is not applicable to facts of this present case. In view of the above, the Court fees payable is a fixed Court fee. The judgment of the learned Subordinate Judge is accordingly set aside.

15. Accordingly, C.R.P. is allowed. No costs.