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Karnataka Board Of Wakfs v. Joharmal Jawanji
Judgment Summary — Murlidher Rao, J.
Factual and Procedural Background
The two writ petitions (Criminal Revision Petitions styled as C.R.P. Nos. 875/89 and 5271/89) challenge the order dated 29-10-1988 passed in O.S. No. 1131/82 by the X Additional City Civil Judge, Bangalore. By that order the trial court directed the plaintiff to pay court-fee calculated on the valuation of Rs. 1,00,000 stated in the plaint.
C.R.P. No. 875/89 was filed by the Karnataka Board of Wakfs (the plaintiff in O.S. No. 1131/82) seeking exemption from payment of court-fee. C.R.P. No. 5271/89 was filed by the defendants in the suit — Joharmal Jawanji and Central Muslim Association — who contested the plaintiff's claimed valuation and asserted that the market value of the property on the date of the suit was substantially higher than Rs. 1,00,000 and that the trial court should have determined market value after recording evidence.
The suit concerns premises described in the plaint schedule as premises bearing old Nos. 35 and 36 (now No. 204/1) situate at Arcot Srinivasachar Street, Bangalore-53, having measurements East–West = 32 ft and North–South = 44 ft. The plaintiff had paid a fixed court-fee of Rs. 15 under Notification No. HD 19 CCF 61 dated 10-8-1961 (invoking Section 70 of the Karnataka Court Fees and Suits Valuation Act, 1958), a position contested by the defendants.
The plaint prays, inter alia, for declaration that the suit property is Wakf property, that sale(s) to the first defendant and others are null and void, a decree for possession, costs, and other reliefs. The plaintiff asserted that the suit property formed part of the Khazi (Sultanpet) Mosque notified under Section 5(2) of the Wakf Act (notification dated 7-6-1965) and relied on government notifications to claim reduced court-fee. The trial court held the suit properties were not included in the Gazette notification for the Khazi Mosque and called upon the plaintiff to pay court-fee on the Rs. 1,00,000 valuation.
Legal Issues Presented
- Whether the plaintiff (Karnataka Board of Wakfs) is exempt from payment of court-fee by virtue of (a) Notification No. HD 19 CCF 61 dated 10-8-1961 (under Section 70, Court Fees and Suits Valuation Act, 1958) or (b) Notification No. LAW 2 LCF 81 dated 11-4-1983 (under sub-section (1) of Section 70 of the same Act) — i.e., whether either notification applies to the suit in O.S. No. 1131/82.
- Whether the suit properties are properties "notified under Section 5(2) of the Wakf Act, 1954" or registered under Sections 25 or 28 of the Wakf Act, so as to attract the benefit of the 1983 notification.
- Whether the trial court should determine the market value of the subject-matter of the suit under Section 11(2) of the Karnataka Court Fees and Suits Valuation Act when the defendants dispute the valuation stated in the plaint.
Arguments of the Parties
Plaintiff (Karnataka Board of Wakfs) — main contentions
- The plaintiff sought exemption from payment of court-fee, asserting entitlement under government notifications reducing fees to a maximum of Rs. 15 in suits of the relevant class.
- In the court below the plaintiff relied on Notification No. HD 19 CCF 61 dated 10-8-1961; in this Court counsel relied on Notification No. LAW 2 LCF 81 dated 11-4-1983 which extends fee reduction to suits and appeals by the Karnataka Board of Wakfs in respect of properties notified under Section 5(2) or registered under Sections 25/28 of the Wakf Act.
- The plaintiff pleaded that the suit property is part of Khazi Mosque (Sultanpet) notified as Wakf property in the Official Gazette dated 7-6-1965.
Defendants (Joharmal Jawanji and Central Muslim Association) — main contentions
- The defendants contended the market value of the property, as on the date of the suit, was much more than Rs. 1,00,000 and that the plaint valuation was therefore incorrect.
- They argued that the trial court should not have accepted the valuation stated in the plaint but should have determined the true market value by recording evidence and holding an inquiry.
- The defendants also contested applicability of the 1961 notification and the claim of exemption.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court proceeded in two parts: (A) whether either government notification exempted the plaintiff from payment of court-fee; and (B) whether the trial court ought to determine market value under Section 11(2) of the Karnataka Court Fees and Suits Valuation Act.
A. Applicability of Notifications and entitlement to reduced court-fee
- The 1961 Notification (HD 19 CCF 61 dated 10-8-1961) was interpreted as applying only to "suits for restoration of properties of the nature contemplated under the Public Wakfs (Extension of Limitation) Act, 1959 (Central Act 29 of 1959)". That Act extended limitation for suits to recover possession of immovable properties forming part of public wakfs, limited to suits for restoration of possession and with specified limitation periods. The court held that the suit in question was broader — seeking declaration, cancellation of sale and possession — and was therefore not the restricted restoration suit contemplated by the 1959 Act; accordingly the 1961 Notification did not apply.
- The 1983 Notification (LAW 2 LCF 81 dated 11-4-1983) reduced fees for "Suits and Appeals for restoration, declaration and cancellation in respect of properties notified under Section 5(2) of the Wakf Act, 1954 or registered under Section 25 or 28" when filed by the Karnataka Board of Wakfs. The court examined whether the suit properties were among those notified under Section 5(2) or registered under Sections 25/28. Although the Khazi Mosque at Sultanpet was notified in the Gazette, the plaint schedule properties (old Nos. 35 and 36, new No. 204/1) were situated on Arcot Srinivasachar Street and were described as separate shops. The court found nothing on record to identify the schedule properties as the same properties notified under Section 5(2).
- The court articulated that if a 'part' of a notified property is to enjoy the benefit of notification, that 'part' must itself be specifically and separately identifiable and notified under Section 5(2). Since the plaint did not show that the schedule properties were identical with a property notified under Section 5(2), the 1983 Notification could not be relied upon for exemption.
- The court also observed that the Court Fees and Suits Valuation Act is a fiscal statute requiring strict interpretation: exemptions are to be applied only where they are specifically and clearly provided. Given the absence of specific identification in the plaint and the strict approach required by a fiscal enactment, the 1983 Notification was not applicable to the suit properties.
B. Valuation: requirement to determine market value under Section 11(2)
- The court referred to Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, which requires the court to determine the valuation of the subject-matter of the suit where a dispute about valuation is raised.
- Because the defendants in their written statement had contended that the market value exceeded Rs. 1,00,000, the court concluded that the alleged undervaluation affected the fiscal interest of the State (i.e., the correct chargeable court-fee). Consequently, the trial court was required to determine the market value after holding an inquiry and giving both parties the opportunity to prove their contentions.
Holding and Implications
C.R.P. 875/89 DISMISSED. The Karnataka Board of Wakfs (plaintiff) is not exempted from payment of court-fee in respect of O.S. No. 1131/82. The Notifications dated 10-8-1961 and 11-4-1983 were held not to apply to the suit properties.
C.R.P. 5271/89 ALLOWED. The defendants' petition was allowed in respect of valuation: the trial court is directed to determine the market value of the suit properties as on the date of the suit, after affording both parties an opportunity to adduce evidence and be heard, pursuant to Section 11(2) of the Karnataka Court Fees and Suits Valuation Act.
Implications: The direct effect of the decision is that the plaintiff must pay the appropriate court-fee (it is not entitled to the reduced fixed fee of Rs. 15 under the impugned notifications). The trial court must conduct an inquiry to ascertain market value for proper assessment of court-fee. The opinion does not purport to establish any broader judicial precedent beyond resolving the notifications' applicability and directing valuation inquiry; no broader new principle of law is announced beyond the application and interpretation of the cited notifications and the statutory provisions referenced in this opinion.
No costs were awarded.
Murlidher Rao, J.:—
Both the petitions are directed against the order dated 29-10-1988 in O.S No. 1131/82; by the said order the X Additional City Civil Judge, Bangalore, has directed the plaintiff to pay Court fee on Rs. One lakh, the value of the subject matter as stated in the plaint.
2. C.R.P No. 875/89 is filed by the Karnataka Board of Wakfs (hereinafter called as ‘Board’), who is plaintiff in O.S No. 1131/82. C.R.P No. 5271/89 is filed by Joharmal Jawanji and Central Muslim Association, who are defendants in the said suit; while the plaintiff claims complete exemption from payment of Court fees, the defendants contended that the market value of the property, on the date of suit, is much more than Rs. One lakh. They contended that the Court below could not have accepted the valuation as given in plaint, but should have determined the market value, on the date of suit, after recording evidence.
3. The property is described thus in the plaint Schedule:
“Premises bearing Old Nos. 35 and 36 and now No. 204/1 situated at Arcot Srinivasachar Street, Bangalore-53, bounded as below:—
East : Arcot Srinivasachar Street West : Private property South : - do - North : - do -
Measuring
East - West = 32 ft.
North - South = 44 ft.”
4. The plaintiff has paid fixed Court fee of Rs. 15/- purporting to do so under Notification No. HD 19 CCF 61 dated 10-8-1961 issued under Section 70 of the Karnataka Court Fees and Suits Valuation Act, 1958. Defendants contended that the said Notification is not applicable.
5. The prayers made by plaintiff read thus:
“The plaintiff prays for following reliefs:
(a) The suit property may be declared as Wakf property.
(b) To declare that the sale of the property in favour of the defendant No. 1 and also other sale transaction in respect of the schedule property is null and void.
(c) A decree for possession of the said property in favour of plaintiff from defendant-1 may be awarded.
(d) The cost of the suit may be awarded against the 1st defendant; and
(e) Grant such other relief or reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice.”
6. According to the plaintiff the mosque is a minor Muzrai institution and is in existence since the time of Hyder Ali Tippu Sultan. It was under the management of second defendant, who was the Muthawalli since 1940. This was so till 1948. When due to political disturbances he was forcibly dispossessed. On 17-7-1975 the first defendant purchased the property by registered sale deed from S.L Phutane and he has been in possession since then. The plaintiff stated that suit property is a part of Khazi Mosque (Sunni) alias Sultanpet Mosque alias Khilla Mosque, which is notified as Wakf under Section 5(2) of the Wakf Act in Official Gazette dated 7-6-1965. The relevant extract of the said notification reads thus:
Serial Number Description of the Wakf properties and particulars thereof such as Survey No. House No. etc. 1 2 129 Khazi Mosque, Sunni No. M. 200, Sultanpet Shops No. 85(85(232) Old Taragpet Shops (3) No. 37/3, (202), 37/2 (199), 37/1 (201), lands at Karisandra - S. No. 2, 12, 14, 18, 20, 25, 29, 30, 33, 34, 35, 37, 148 - 23A.
7. The plaint schedule properties are admittedly separate shops bearing No. 35 and 36(old), new number being 204/1. The Court below held that the suit properties are not included in the properties notified in the Gazette. Further as on the plaintiff's own showing its value is Rs. One lakh, it has called upon him to pay Court-fee on that valuation.
8. While in the Court-below the plaintiff relied on the Notification No. HD 19 CCF 61 dated 10-8-1961, in this Court the learned Counsel relied on Notification No. LAW 2 LCF 81 dated 11th April, 1983. The language of these two Notifications read thus:
“Notification No. HD 19 CCF 61 dated 10th August, 1961 Notification No. LAW 2 LCF 81 dated 11th April, 1983 In exercise of the powers conferred by Section 70 of the Karnataka Court Fees and Suits Valuation Act, 1958 (Karnataka Act No. 16 of 1958), the Government of Karnataka hereby directs that the fee chargeable in respect of suits for the restoration of properties of the nature contemplated under the Public Wakfs (Extension of Limitation) Act, 1959, shall be reduced to a maximum of Rs. 15 in respect of the said suits in the whole of the State of Karnataka. In exercise of the powers conferred by sub-section (1) of Section 70 of the Karnataka Court Fees and Suits Valuation Act, 1958 (Karnataka Act 16 of 1958) the Government of Karnataka being of the opinion that it is necessary in public interest so to do, hereby directs that the fee chargeable in respect of Suits and Appeals for restoration, declaration and cancellation in respect of properties notified under Section 5(2) of Wakf Act, 1954 (Central Act 29 of 1954) or registered under Section 25 or 28 of the said Wakf Act, filed by the Karnataka Board of Wakfs, Bangalore, shall be reduced to a maximum of rupees fifteen in respect of the said suits and appeals in the whole of the State of Karnataka.”
(Emphasis supplied)
9. The language of 1961 Notification makes it clear that it applies to “suits for restoration of properties of the nature contemplated under Public Wakfs (Extension of Limitation) Act, 1959 (Central Act 29 of 1959)”; whereas the Notification of 1983 applies to “Suits and Appeals for restoration, declaration and cancellation in respect of properties” notified under Section 5(2) of the Wakf Act, 1954 (Central Act 29 of 1954) or registered under Section 25 and 28 of the said Wakf Act, if the suit is filed by the Karnataka Board of Wakfs. The two Notifications govern different types of suits dealing with different types of properties. They are not overlapping. The Public Wakfs (Extension of Limitation) Act, 1959 which became enforceable on 1st September, 1959 was enacted to extend the period of limitation for suits to recover possession of immoveable properties forming part of public wakfs; the period for filing suit was extended upto 31-12-1970. By local amendments in Andhra Pradesh, Delhi and Tamil Nadu this period was further extended to 31-12-1972. No such amendment having been done in Karnataka is brought to my notice. The effect of the Notification dated 10th August, 1961 is to charge fixed Court fee of Rs. 15/- in respect of the suits governed by Act 29 of 1959, referred to above. It is manifest that the suit contemplated by this Act is a suit for restoration of possession only in respect of properties which are “Public Wakf” as defined in Section 2 of the said Act. In view of the prayers made in the plaint, this is a suit for declaration of the property as Wakf Property; for declaration that sale in favour of defendant-1 is null and void and lastly for possession. Such a comprehensive suit with so many reliefs is not covered by Act 29 of 1959; therefore there is no difficulty in holding that the Notification dated 10th August 1961 and fixed Court-fee stipulated therein has no application to the instant case.
10. Coming to the Notification of 11th April, 1983, though it embraces all comprehensible type of suits instituted by the Wakf Board it restricts its operation to the properties notified under Section 5(2) of the Wakf Act or registered under Section 25 or 28 of the Wakf Act. Apparently the plaint schedule properties are neither notified under Section 5(2) nor they are registered under Sections 25 or 28 of the Wakf Act. Whereas the notified Khazi Mosque is situated in Sultanpet, the suit schedule properties are situated in Arcot Srinivasachar Street. There is nothing on record to connect the suit properties with the one notified under Section 5(2) of the Act. In the plaint it is averred that the suit properties are part of the properties belonging to the institution. It is not the case of the plaintiff that it is identical. If the ‘part’ is capable of being described and is identifiable separately such ‘part’ should be notified under Section 5(2) of the Act. So long as the ‘part’ is capable of existing independently and can be enjoyed, possessed and dealt with separately unless specifically notified under Section 5(2) of the Act it is not possible to hold that it is a notified Wakf property. Moreover, Court Fees and Suits Valuation Act is a fiscal statute which calls for strict interpretation. Unless specifically and in clear terms exempted, the provisions of the Act apply. Therefore, the suit properties being unidentifiable with the notified property, the plaintiff cannot take advantage of the Notification dated 11th April, 1983.
11. For the aforesaid reasons the conclusions of the Court below do not warrant interference and C.R.P 875/89 deserves to be rejected.
12. Coming to C.R.P 5271/89, filed by defendants, it deserves to be allowed. Section 11(2) of the Karnataka Court Fees and Suits Valuation Act requires the Court to determine the valuation of the subject matter of the suit, if a dispute is raised regarding the valuation. The defendant in his written statement has contended that market value of the property is much more than One lakh Rupees. Undervaluation of the property affects the interests of the State, which is entitled to charge it as per the market value. In such circumstances, the Court below has to determine the market value, after holding an enquiry, after giving opportunity to both sides to prove their respective contentions.
13. Hence, I make the following order:
(1) C.R.P 875/89 is dismissed; the plaintiff-Wakf Board is not exempted from payment of Court fee. The Notifications of 10-8-1961 and 11-4-1983 are not applicable to the suit properties.
(2) C.R.P 5271/89 is allowed; the Court below is directed to determine the market value of the suit properties, as on the date of suit, after affording opportunities to both the sides.”
No costs.
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