PIRDHANDAS PARSUMAL Vs. HAJRABAI MAHOMAD
LAWS(GJH)-1966-8-4
HIGH COURT OF GUJARAT
Decided on August 05,1966

PIRDHANDAS PARSUMAL Appellant
VERSUS
HAJRABAI MOHMAD Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) In 1947 one Shakur Haji Suleman a Cutchi Memon of Upleta died intestate leaving him surviving his widow the plaintiff and his only son Sitar Haji Shakur. There was a house belonging to him situate in Upleta in which he was residing with the plaintiff until his death and after his death the plaintiff continued to reside in two rooms in the same house. Soon after the death of Shakur Haji Suleman followed the partition of India and immediately after the partition Sitar Haji Sakur went away to Pakistan. Since by reason of being resident in Pakistan Sitar Haji Shakur was unable to supervise his property in Upleta a notice dated 20th November 1950 was issued to him under sec. 7 of the Administration of Evacuee Property Act 1950 calling upon him to show cause why he should not be declared an evacuee under sec 2(d)(ii) of the Act. In response to the notice a written statement dated 23rd November 1950 was submitted by the plaintiff and in the written statement she contended that Sitar Haji Shakur had gone to Pakistan merely for business purposes and he was therefore not liable to be declared an evacuee. An inquiry was thereafter held by the Assistant Custodian of Evacuee Property and as a result of the inquiry the Assistant Custodian of Evacuee Property by his order dated 13th January 1951 held that Sitar Haji Shakur was an evacuee under sec. 2(d)(ii) of the Act and his properties were evacuee properties. The plaintiff thereupon preferred an appeal to the Custodian of Evacuee Property. In the appeal it seems the plaintiff put forward a claim to share in the properties left by Shakur Haji Suleman but this claim was rejected by the Custodian of Evacuee Property. The Custodian of Evacuee Property by his order dated 24th April 1951 held that the plaintiffs claim to the property of Shakur Haji Suleman could not be admitted but as a widow of Shakur Haji Suleman she was entitled to a right of residence in the said property and this right was limited to the accommodation which she enjoyed immediately before Sitar Haji Shakur migrated to Pakistan. Now at the date when Sitar Haji Shakur migrated to Pakistan the plaintiff was residing in two rooms in the suit house and the right of the plaintiff to reside in the said two rooms as the widow of Shakur Haji Suleman was thus recognised and declared by the Custodian of Evacuee Property but since Sitar Haji Shakur was an evacuee and his properties were evacuee properties as held by the Assistant Custodian of Evacuee Property the order of the Assistant Custodian of Evacuee Property declaring Sitar Haji Shakur as an evacuee and his properties as evacuee properties was affirmed and the appeal was rejected by the Custodian of Evacuee Property. The plaintiff thereafter continued to reside in two rooms in the suit house in which she was residing immediately before Sitar Haji Shakur migrated to Pakistan sad there was no disturbance of her possession until 15th November 1953 when the Assistant Custodian of Evacuee Property issued an order fixing the rent of the said two rooms at Rs. 20 per month and requiring the plaintiff to pay Rs. 680 as and by way of arrears of rent in respect of the said two rooms from January 1951 upto October 1953. The plaintiff on receipt of this order immediately approached the Custodian of Evacuee Property and applied for setting aside the said order. The Custodian of Evacuee Property by his order dated 26th February 1954 set aside the impugned order observing:-...... I find that It is not right to ask the applicant to pay rent for the portion of the house which she is occupying because her right to residence in the house has already been granted by this Court. The parties are Kachhi Memons and according to the law applicable to them widow is entitled to residence in the property of her husband as also for maintenance out of the income of such property. (Vide Haji Sabut Siddique v. Ayeshbai 37 Bom. 435). The applicant cannot therefore be asked to pay rent. Her claim for maintenance also has to be allowed. She has been recovering rent for the other portion of the house which is occupied by tenants. The rent amounts to Rs. 30 per month which does not exceed what she can claim by way of maintenance. She may therefore be allowed to recover this rent towards her maintenance. Pursuant to this order the plaintiff continued to reside in two rooms in the suit house which were in her occupation and to collect the rent in respect of the other portions of the suit house which were in the occupation of the tenants This state of affairs continued until 8th June 1955 when the Central Government in exercise of its power under sec. 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act 1954 (hereinafter referred to as the Compensation and Rehabilitation Act) issued a notification to the effect that the Central Government had decided to acquire the evacuee properties specified in the Schedule to the notification and amongst the evacuee properties so specified were all urban immovable properties situate in that State within the limits inter alia of a Municipality which have been declared or are deemed to have been declared as evacuee properties under the Administration of Evacuee Property Act 1950 Now all the properties of Sitar Haji Shakur were declared to be evacuee properties under the order of the Assistant Collector of Evacuee Property dated 13th January 1951 which was confirmed by the order of the Custodian of Evacuee Property dated 24th April 1951 and the right title and interest of Sitar Haji Shakur in the suit house which was situate within the limits of Upleta Municipality in the State of Saurashtra was therefore covered by the notification dated 8th June 1955. The right title and interest of Sitar Haji Shakur in the suit house was therefore extinguished and that right title and interest vested absolutely in the Central Government free from all encumbrances under sec. 12(2) of the Compensation and Rehabilitation Act. The Central Government thereafter in exercise of its powers under sec. 20 of the Compensation and Rehabilitation Act sold the suit house by public auction and at the public auction defendants Nos. 5 and 6 were the highest bidders and they were therefore declared the purchasers of the suit house and a certificate of sale dated 20 August 1959 was issued by the Assistant Settlement Commissioner on behalf of the Central Government declaring defendants Nos. 5 and 6 as purchasers of the suit house with effect from 20th August 1959. The plaintiff during all this period continued to reside in the two rooms in the suit house as before. The Central Government it appears was of the view that the acquisition of the suit house by the Central Government under the notification dated 8th June 1955 had the effect of extinguishing the rights of residence and maintenance enjoyed by the plaintiff and they therefore decided to pay to the plaintiff a sum of Rs. 4110/in cash as and by way of ex-gratia relief on humanitarian grounds and directed that as soon as the said amounts was paid to me plaintiff the plaintiff should be charged rent at the rate of Rs. 20 per month in respect of the portion of the suit house in her occupation. This decision of the Central Government was communicated to the plaintiff by the Registrar of the Office of the Custodian General of Evacuee Property by his letter dated 29th May 1957 Exhibit 20. The plaintiff did not agree with the view of the Central Government that her rights of residence and maintenance were affected by the acquisition of the suit house by the Central Government or the sale of the suit house to defendants Nos. 5 and 6 and she therefore filed a suit which was subsequently renumbered Civil Suit No. 25 of 1959 (i) for a declaration that she had a right of residence in the suit house and that she was entitled to maintenance out of the suit house and to enjoy the suit house and its rent for her life; (ii) that the order of the Central Government contained in the letter dated 29th May 1957 Exhibit 20 was illegal and void; (iii) that the order declaring the suit house as evacuee property was bad in law and in any event did not affect the rights of the planning and that the sale of the suit house by Central Government to defendants Nos. 5 and 6 was subject to the rights of residence and maintenance of the plaintiff and (iv) for a charge on the suit house for securing her rights of residence and maintenance. The Union of India the Custodian of Evacuee Property the Assistant Custodian of Evacuee Property and the Additional Regional Settlement Commissioner were impleaded as defendants Nos. 1 to 4 in the suit since the various orders made by these officers were challenged and defendants Nos. 5 and 6 were also impleaded since the sale of the suit house in their favour was sought to be declared null and void and in any event subject to the rights of residence and maintenance of the plaintiff. The suit was resisted by all the defendants but the main contest took place between the plaintiffs and defendants Nos. 5 and 6. The trial Court held that the plaintiff as the widow of Shakur Haji Suleman had a right of residence in two rooms in the suit house in which she resided with her husband until his death and this right was recognised by the Custodian of Evacuee Property by his orders dated 24th April 1951 and 26th February 1964 and the notification dated 8th June 1955 did not have the effect of extinguishing this right and it was accordingly enforceable against defendants Nos. 5 and 6. So far as the claim for maintenance was concerned the trial Court held that the plaintiff had no right to be maintained out of the income of the suit house and that in any event on the issue of the notification dated 8 June 1955 such right if any was extinguished and the plaintiff was therefore not entitled to claim maintenance out of the income of the suit house in the hands of defendants Nos. 5 and 6 nor was she entitled to a charge on the suit house for her maintenance. Regarding the validity of the order of the Central Government contained in the letter dated 29th May 1957 Exhibit 20 the trial Court took the view that the said order was null and void. The order declaring the suit house as evacuee property was however upheld by the trial Court and the sale of the suit house by the Central Government to defendants Nos. 5 and 6 was also held to be valid. The trial Court in the result passed a decree declaring that the plaintiff had got a right of residence free of rent in the two rooms in the suit house which were in her occupation and dismissed her suit in regard to the other reliefs claimed by her.
(2.) The plaintiff was aggrieved by this decree in so far as it refused her right to be maintained out of the income of the suit house and she therefore preferred Appeal No. 3 of 1960 in the Court of the Assistant Judge Gondal. Defendants Nos. 5 and 6 appeared to oppose the appeal and they raised a preliminary objection in regard to the jurisdiction of the learned Assistant Judge to entertain the appeal. They contended that the value of the subject matter of the suit was above Rs. 10 0 and that an appeal against the decision of the trial Court therefore lay to the High Court and not to the District Court and the appeal preferred by the plaintiff was therefore not maintainable in the District Court. This was a contention affecting the jurisdiction of the learned Assistant Judge and it was therefore heard by the learned Assistant Judge as a preliminary contention. The learned Assistant Judge took the view that what was material to consider for the purpose of determining the forum of appeal was the value of the subject matter of the suit at the date of institution of the appeal and not the value at the date of institution of the suit. He observed that the claim for maintenance made in the suit was Rs. 100 per month and therefore under sec. 7(ii) of the Court-fees Act 1870 which was in force at the date of institution of the suit the value of the subject matter of the said claim for computation of court fees was Rs. 12 0 and the value of the subject matter of the suit for purpose of jurisdiction was also therefore above Rs. 10 0 at the date when the suit was instituted but subsequent to the institution of the suit and prior to the filing of the appeal the Court-fees Act 1870 was repealed and the Bombay Court-fees Act 1959 was enacted and under sec. 6(ii) of the new Act the mode of valuation of the subject matter of the claim for maintenance was reduced to Rs. 1 200 and therefore at the date of institution of the appeal the value of the subject matter of the suit was less than Rs. 10 0 and hence the appeal was rightly filed in the District Court. Defendant No. 5 did not accept the order of the learned Assistant Judge determining the question of jurisdiction against him and he therefore preferred Civil Revision Application No. 766 of 1960 in this Court. Defendants Nos. 5 and 6 in the meantime also preferred an appeal against the decree passed by the trial Court in so far as it declared that the plaintiff was entitled to a right of residence in the suit house in the hands of defendants Nos. 5 and 6 and this appeal was consistently with the stand taken by them before the learned Assistant Judge preferred by them in the High Court. That appeal is First Appeal No 632 of 1960. Defendant No. 5 also thereafter made an application to this Court that the appeal preferred by the plaintiff in the Court of the Assistant Judge Gondal should be withdrawn to this Court and by consent of parties that appeal was withdrawn to this Court and was numbered First Appeal No. 450 of 1963 Since the questions arising in these two First Appeals and Revision Application are common it would be desirable to dispose them of by a single judgment.
(3.) It would be convenient to first dispose of the Revision Application as that raises a question of jurisdiction namely which Court has jurisdiction to entertain an appeal against the judgment of the trial Court:- the High Court or the District Court ? This question also arises in the appeal of defendants Nos. 5 and 6 for if it is the District Court which has jurisdiction to entertain the appeal and not the High Court the appeal of defendants Nos. 5 and 6 instituted in the High Court would be in a Court without jurisdiction and would have to be returned for presentation to the proper Court namely the District Court. The question obviously depends upon whether sec. 26 of the Bombay Civil Courts Act 1869 applies on the facts of the case or sec. 8 of that Act applies. Sec. 8 provides:- 8 Except as provided in secs. 16 17 and 26 the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. The District Court is therefore ordinarily the Court of Appeal in all cases where an appeal is sought to be preferred against a judgment of a Civil Judge except where the case falls within any of the three sections namely secs. 16 17 and 26. Secs. 16 and 17 are not material for our present purpose and we need not therefore refer to them. Sec. 26 which constitutes the last exception to sec. 8 says:- 26 In all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds ten thousand rupees the appeal from his decision shall be direct to the High Court. According to this section if the amount or value of the subject matter of the suit exceeds Rs. 10 0 the appeal would lie to the High Court instead of to the District Court. It is therefore. necessary to consider what was the amount or value of the subject matter of the present suit. One was a claim for maintenance to be charged on the suit house and the other was a claim for various declarations which we have already set out above. The claim for maintenance was for Rs. 100 per month and according to sec. 7(ii) of the Court-fees Act 1870 which was in force at the date of institution of the suit it was valued at Rs. 12 0 being ten times the amount claimed for one year computation of Court-fees. The claim for various declarations with consequential relief of injunction was valued at Rs. 200/under sec. 7(iv)(c) of the Court-fees Act 1870 The court-fees were accordingly paid on a total value of Rs. 12 200 Now under sec. 8 of the Suits Valuation Act 1887 in suits falling under paragraphs (ii) and (iv) of sec. 7 of the Court-fees Act 1870 the value of the subject matter of the suit for the purpose of jurisdiction is to be the same as the value determinable for the computations of court-fees and the subject matter of the present suit was therefore valued for the purpose of jurisdiction at Rs. 12 0 being the same figure at which the value was determined for computation of court-fees. It was because the value of the subject matter of the suit was Rs. 12 0 that is above Rs. 10 0 that the suit was tried by the Civil Judge Senior Division. It would therefore appear that an appeal against the decision of the suit must lie to the High Court under sec. 26 of the Bombay Civil Courts Act 1869 The plaintiff also agreed that such would undoubtedly have been the position if nothing further had transpired but according to the plaintiff an event happened prior to the institution of the appeals by the plaintiff and defendants Nos. 5 and 6 which made a vital difference so far as the forum of appeal was concerned and that event was the enactment of the Bombay Court-fees Act 1959 This Act repealed the Court-fees Act 1870 and under sec. 6(ii) of this Act a different mode of valuation was provided in regard to a claim for maintenance. Sec. 6(ii) provided that in suits for maintenance (with or without a prayer for the creation of a charge) the value of the subject matter of the suit shall be deemed to be the amount claimed to be payable for one year. The argument of the plaintiff was that at the date of institution of the appeal by the plaintiff the new Court-fees Act was in force and according to it the value of the subject matter of the suit was Rs. 1 200 so far as the claim for maintenance was concerned (vide sec. 6(ii)) and Rs. 200/so far as the claim for declarations and consequential relief of injunction was concerned (vide sec. 6(iv)) and the value of the subject matter of suit for the purpose of jurisdiction was therefore Rs. 1 400 made up of Rs. 1 200 and Rs. 200/under sec. 8 of the Suits Valuation Act. The plaintiff thus sought to evaluate the subject-matter of the suit for the purpose of jurisdiction by reference to the new Court-fees Act on the ground that it was the new Court-fees Act which was in force at the date of institution of the appeal. But this approach of the plaintiff is wholly erroneous. The value of the subject matter of a suit is a concept which has relevance only for one of two purposes namely court-fees and jurisdiction. Both these purposes contemplate determination of the value of the subject matter of the suit at the date of institution of the suit and the value determined at the date of institution of the suit governs the question of court-fees as also the question of jurisdiction. The determination of the value of the subject matter of the suit for computation of court-fees must necessarily be as at the date of institution of the suit for court-fees are payable on the plaint and the plaint cannot be received on file without payment of requisite court-fees. So also the value of the subject matter of the suit for the purpose of jurisdiction has to be made at the date of institution of the suit for on the value would depend the question of jurisdiction of the Court to try the suit. Sec. 8 of the Suits Valuation Act also emphasises that the value of the subject matter of the suit for the purposes of jurisdiction is the value determined at the date of institution of the suit for the purpose of jurisdiction shall be the same as the value determinable for computation of court-fees and the determination of the value for computation of court-fees is referable only to the date of institution of the suit. The value of the subject matter of the suit for either of the two purposes namely court-fees or jurisdiction is therefore the value as determined at the date of institution of the suit. If there is any change in the mode of valuation subsequent to the institution of the suit the value of the subject matter of the suit which is determined at the date of institution of the suit cannot change either for the purpose of court-fees or for the purpose of jurisdiction unless of course the change is made with retrospective effect. It is therefore clear that when sec. 26 of the Bombay Civil Courts Act 1869 says that if the amount or value of the subject matter of the suit exceeds rupees ten thousand the appeal shall lie to the High Court the reference is to the amount or value of the subject matter of the suit for the purpose of jurisdiction determined as at the date of institution of the suit. Since the amount of value of the subject matter of the suit for the purpose of jurisdiction determined as at the date of institution of the suit was admittedly Rs. 12 200 sec. 26 of the Bombay Civil Court Act 1869 was applicable and an appeal against the decision of the trial Court lay directly to the High Court and not to the District Court. The learned Assistant Judge was therefore in error in holding that he had jurisdiction to entertain the appeal. The Revision Application would. therefore have to be allowed but this has no adverse consequence on the appeal of the plaintiff since that appeal has already been transferred to this Court and since we are of the view that an appeal lies to this Court we have jurisdiction to hear and dispose of that appeal. We will therefore now proceed to consider the two appeals which are before us one filed by the plaintiff and the other filed by defendants Nos. 5 and 6.;


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