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IN THE HIGH COURT OF BOMBAY
Vimadalal J.R, J.
Appellants: Jafferali Alibhai and Anr.
Vs.
Respondent: S.R. Dossa Co. and Anr.
Suit No. 458 of 1966Decided On: 28.09.1967
Counsels:
For Appellant/Petitioner/Plaintiff: B.R. Zaiwalla, Adv.
For State: M.S. Sanghavi, Adv.
COURT FEES - Valuation of suit - Representative suit under Section 53 of the Transfer of Property Act - Subject-matter of the suit - Whether the property comprised in the Deed of Assignment or the relief by way of declaration itself - Interpretation of Section 6 (iv) (j) of the Bombay Court-fees Act, 1959.
Fact of the Case:
The plaintiffs filed a representative suit under Section 53 of the Transfer of Property Act to avoid a Deed of Assignment of moveable and immoveable properties. The Taxing Master determined the court fees payable by the plaintiffs based on the aggregate sum of the creditors' claims. The plaintiffs challenged this valuation, arguing that the suit was governed by Section 6 (iv) (j) of the Bombay Court-fees Act, 1959, which provides a fixed fee for suits where the subject-matter is not susceptible of monetary evaluation.
Finding of the Court:
The court held that the subject-matter of the suit was not the property comprised in the Deed of Assignment but the relief by way of declaration itself, namely, the declaration that the Deed of Assignment was void as against the plaintiffs. The court found that the suit was not susceptible of monetary evaluation and was governed by Section 6 (iv) (j) of the Bombay Court-fees Act, 1959.
Issues: 1. What is the subject-matter of the present suit as framed? 2. Is that subject-matter susceptible of monetary evaluation? 3. Whether it is a suit which is otherwise provided for by the said Act.
Ratio Decidendi: 1. The court relied on the decision in Ratilal Manilal v. Chandulal Chhotalal, 49 Bom LR 552, to hold that the subject-matter of a suit is what the suit is about and not the object of the suit. 2. The court found that the claim of the plaintiffs or the aggregate claim of all the creditors could not be considered the subject-matter of the suit as it would be impossible to compute court fees on that footing. 3. The court held that the suit was not about the property comprised in the Deed of Assignment as the plaintiffs did not seek to set aside the Deed of Assignment but merely sought a declaration that it was void as against the creditors. 4. The court referred to the decision in Abdullakhan Daryakhan v. Purshottam Damodar, 49 Bom LR 875, to hold that a suit under Section 53 of the Transfer of Property Act is not a suit to set aside an instrument but to obtain a declaration that such transfers do not bind the creditors. 5. The court also relied on the decision in Chhotalal Kalidas v. Laxmidas Mayaram, 60 Bom LR 587, to hold that a suit for a declaration that a sale is invalid and ineffective is not a suit to set aside an alienation and that the subject-matter of such a suit is not susceptible of monetary evaluation.
Final Decision: The court allowed the plaintiffs' Chamber Summons and set aside the order of the Taxing Master. The court held that the suit was governed by Section 6 (iv) (j) of the Bombay Court-fees Act, 1959, and that the plaintiffs were liable to pay a fixed court fee of Rs. 30.
1. This is a Chamber Summons taken out by the plaintiffs to review and set aside an order of the Taxing Master with regard to the valuation of the suit for the purpose of Court-fees.
2. The suit, as framed, is a representative suit under Section 53 of the Transfer of Property Act by the creditors of the 1st defendant-firm to avoid the Deed of Assignment of moveable and immoveable properties by that firm in favour of the 2nd defendant which was dated 21st February 1966. The properties which are the subject-matter of the said Deed of the subject-matter of the value of Rs. 71/2 lacs. The plaintiffs have, in paragraph 17 of the plaint, valued the suit for the purpose of Court-fees under S. 6 (iv) (j) of the Bombay Court-fees Act, 1959, and they paid a fixed court-fees of Rs.30 under the said section. On a reference to the Taxing Master under Section 5 of the said Act to determine the correct amount of Court-fees would be payable by the plaintiffs on the aggregate sum of Rs.2,26,998.14, being the total of the claims of the creditors set out in annexure "C" to the plaint, including the claims of the two plaintiffs. In arriving at the conclusion, the Taxing Master has proceeded on the footing that, since this is a representative suit as required by Section 53 of the Transfer of Property Act, all the creditors mentioned in the list must be considered to be parties to this suit. It may be mentioned that the Taxing Master had, before proceeding with the reference directed a notice to be given to the State of Maharashtra, and the State was represented by attorneys in the course of the hearing of the reference before the Taxing Master. Mr.Sanghavi who appeared on behalf of the State before me, sought my permission to appear at the hearing of this Chamber Summons, and I have permitted him to do so. It may further be mentioned that the State itself has taken out a Chamber Summons, and I have permitted him to do so. It may further be mentioned that the State itself has taken out a Chamber Summons dated 21st August 1967 for a review of the valuation arrived at by the same should be enhanced to Rs. 7,50,000 which was the value of the property involved in the suit. I am, however, for the present, considering the plaintiffs Chamber summons, and will pass orders in regard to the Chamber Summons taken out by the State separately hereafter.
2A. It would be convenient to refer at the very outset to the terms of Section 6 (iv) (j) of the Bombay Court-fees Act. 1959. Clause (iv) of the said section deals with various types of declaratory suits and in sub-clause (j) thereof, it is provided that, it suits where a declaration is sought and "the subject-matter ink dispute is not susceptible of monetary evaluation and which are not otherwise provided for" by the said Act, the Court fee payable would be a fixed fee of Rs. 30. The questions that arise before me are, therefore, three, namely, (1) what is the subject-matter of the present suit as framed, (2) is that subject-matter susceptible of monetary evaluation, and (3) whether it is a suit which is otherwise provided for by the said Act.
3. Mr. Zaiwalla has, in the course of his argument, stated that four views are possible, namely (1) that the subject matter is the claim of the two plaintiffs aggregating about Rs. 18,000/- (2) that the subject -matter is the aggregate claim of all the creditors on whose behalf the suit is filled as a representative suit aggregating to Rs. 2,26,998.14, (3) that the subject-matter is the value of the property comprised in the Deed of Assignment which is sought to be avoided by the present suit under S.53 of the Transfer of Property Act, and (4) that the subject matter is merely the relief, namely, the declaration that the Deed of Assignment in question is void as against the creditors of the 1st defendants.
4. In the case of Ratilal Manilal v. Chandulal Chhotalal, 49 Bom LR 552
which was a suit for possession of a house in which the plaintiff claimed that the defendant
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