Decided on July 14,1950

Mahadeo Ganesh And Anr. Appellant
Sadashiv Khanderao And Ors. Respondents

Referred Judgements :-



Kaul, C.J. - (1.)A preliminary objection has been taken to the hearing of this appeal which raises the question what is the proper court -fees payable on the memorandum of grounds of appeal in this case. The facts in so far as they are material for this purpose are as follows:
(2.)A suit for partition was brought by Keshav and his son Malhar against Keshav's brother Sadashiv, his son Dattatraya and mother Laxmibai for partition and separate possession of his share in the joint family property. Subsequently, Ramchandra Anant sons of Vishwanath and Mahadeo and Rangnath sons of Ganpat Rao who were first cousins of Keshav and Sadashiv applied " at they were also members of a joint family the Keshav and Sadashiv were entitled to a definite share in the joint family property. These applications were not opposed by Keshav. They were however contested by Sadashiv and the other Defendants. Ultimately the applications were allowed and the four applicants above named were impleaded as Defendants. Sadashiv admitted that he and Keshav formed a joint family. It was however pleiaded on his behalf that Ramchandra, Anant, Mahadeo and Rangnath were not joint with them and had no interest in the joint family property. The Learned District . Judge of Garoth held on the evidence led before him that Ramchandra and Anant were joint with Keshav and Sadashiv but that Mahadeo and Rangnath were separate. He passed a preliminary decree for partition. Two appeals, were preferred against, his decision or by Mahadeo and Rangnath and the other by Sadashiv, Dattatraya and Laxmibai Defendants Nos. 1 to 3. Ramchandra filed cross -objections challenging the .correctness of the finding as regards the extent of his share. These matters came up for hearing before Rege J. and the question was raised before him what was the proper court -fee payable on their memorandums of grounds of appeal by Mahadeo and Rangnath. They had paid a court -fee of Rs. 15/ - only under Article 11 of the Indore Court -fees Act. The learned Judge took the view that these Appellants were liable to pay 'ad valorem' court -fee on the value of their share. They were called upon to fix a value on the share claimed by them and pay court -fee according to the figure at which the share was valued. The Appellants valued their share at 6000/ - and paid the requisite court -fee. Having heard the parties Mr. Justice Rege was of opinion that proper issues had not been framed in the trial court and all the questions that should have been considered were not decided. He accordingly framed fresh issues and remanded the case to the trial Court for decision in the light of the observations made by him.
The learned District Judge thereupon heard the case afresh. He held on the evidence which was before him that Ganpat father of Mahadeo and Rangnath was separate from his brother Khanderao father of Keshav and Sadashiv and accordingly had no interest in the joint family property. As regards Ramchandra and Anant his finding was that though they formed a joint family with Keshav and Sadashiv all the property in suit was self -acquired property of Khanderao in which Ramchandra and Anant could not claim a share. lie however held that Keshav was entitled to a third share in the property in suit and passed a preliminary decree for partition. Dissatisfied with this decision Mahadeo and Rangnath, and Ramchandra and Anant have preferred these two appeals.

An objection was raised by Mr. Bharucha learned Counsel for Sadashiv and Mr. Kulkarni who appears for Laxmibai that Mahadeo and Rangnath were liable to pay 'ad valorem' court -fee on the memorandum of their grounds of appeal. It may be mentioned that though in compliance with the order of Rege J. Mahadeo and Rangnath had paid 'ad valorem' court -fee in their appeal before the case was remanded the present appeal was filed by them on a stamped paper of Rs. 15/ - only. Mr. Newaskar learned Counsel for the Appellants challenges the correctness of the view taken by Rege J. and contends that irrespective of whether the case is covered by Article 11 of the Indore Court -fees Afct or Section 4 of that Act he is liable to pay a court -fee of Rs. 15/ - only. The two learned Counsel Mr. Bharucha pnd Mr. Kulkarni who raised the preliminary objection put forward different grounds in support of their contention. Mr. Bharucha contended that the Appellants having accepted the decision of Rege J. and having failed to challenge it when he filed his first appeal after remand was bound by that decision. He argued that the matter was 'res judicata'. Mr. Kulkarni, on the othfer hand, Contended that inasmuch as the Appellants were not in possession of any part of the joint family property and their claim was in effect one not only for a declaration of their right but also for possession of a share in the joint family property they must pay 'ad valorem' court -fee according to the figure at which they put their share. We will deal with each of these contentions in order.

(3.)REFERENCE was made by Mr. Bharuchd to Section 105, Civil Procedure Code. He argued that having failed to challenge the decision of Rege J. on the question of court -fee by incorporating a ground to that effect in the memorandum o £ their grounds of appeal when they challenged the decision of the trial court after remand they could not challenge it in this appeal which; is filed against the decision of a single Judge of this Court. It may, be mentioned incidentally that after the decision of the case by the trial Judge subsequent to remand the appeal came up before Mehta J. who affirmed the decision of the trial court. According to Mr. Bharucha's contention it was open to. Mehta J. to set aside the decision of Rege J. on the, question of court -fee. No satisfactory answer was however forthcoming when I put it to the learned Counsel whether if the appeal which was heard by Mehta J. had come up for hearing before Rege J. he himself could be free to set aside his previous decision given before remand. I am clear that no question of 'res judicata' arises in the present case nor has Section 105, Civil Procedure Code. has any application to it. Apart from other grounds Section 105 is inapplicable because it applies only to cases where there is any error or irregularity "affecting the decision of the case". 4 question relating to court -fees is, we are clear, not an error, or irregularity of this description.

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