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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S.C. Mitter and S.P. Roy Choudhury
  • S. Roy and R.L. Sinha
Judges
  • D.N Sinha
  • G.K Mitter
  • P. Chatterjee, JJ.
Acts
  • provisions of the Constitution the provisions of the old Civil Procedure Code read with Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947,
  • Sections of the Code of Civil Procedure.5. Article 133(1) of the Constitution
  • Article 133 of the Constitution read with sections 109 and 110 of the CPC
  • section 110 of the C.P Code or Article 138 of the Constitution.15.
  • section 596 of the CPC of 1882. section 109 of the CPC of 1908
  • section 110 of the CPC and Article 133(1)(a)
  • section 110, paragraph and Article 133(1)(a)
  • SECTION 8 SUITS VALUATION ACT
  • section 7(x)(a) of the Court Fees Act
  • section 7(v) of the Court Fees Act.
  • SECTION 7 COURT FEES ACT
  • 1838. Rule 1 of the schedule
  • INDIAN STAMP ACT
  • SUITS VALUATION ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S.C. Mitter and S.P. Roy Choudhury
  • S. Roy and R.L. Sinha
Judges
  • D.N Sinha
  • G.K Mitter
  • P. Chatterjee, JJ.
Acts
  • provisions of the Constitution the provisions of the old Civil Procedure Code read with Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947,
  • Sections of the Code of Civil Procedure.5. Article 133(1) of the Constitution
  • Article 133 of the Constitution read with sections 109 and 110 of the CPC
  • section 110 of the C.P Code or Article 138 of the Constitution.15.
  • section 596 of the CPC of 1882. section 109 of the CPC of 1908
  • section 110 of the CPC and Article 133(1)(a)
  • section 110, paragraph and Article 133(1)(a)
  • SECTION 8 SUITS VALUATION ACT
  • section 7(x)(a) of the Court Fees Act
  • section 7(v) of the Court Fees Act.
  • SECTION 7 COURT FEES ACT
  • 1838. Rule 1 of the schedule
  • INDIAN STAMP ACT
  • SUITS VALUATION ACT
See more information ...
Smart Summary

Structured Summary of the Full Bench Opinion (Ibis reference)

Factual and Procedural Background

This Full Bench opinion arises from an application for a certificate under article 138(1) of the Constitution in a proposed appeal from a division bench decision dated 4 April 1963 which reversed a trial court judgment and decree granting specific performance of a contract for sale of immovable property in Calcutta.

Relevant facts stated in the opinion:

  • Contract dated 13 February 1945 fixed the price of premises No. 81 Girish Park North, Calcutta at Rs. 15,000.
  • On 25 March 1946 the property was sold at auction for Rs. 24,000 to respondent No. 8, Dhone Krishna Das.
  • The petitioner, Brindaban Chandra Basak, filed suit on 16 April 1946 impleading all necessary parties, and the suit was decreed following judgment of 23 March 1959; that decree was upset in appeal.
  • The plaintiff applied for a certificate to proceed to the Supreme Court under article 133 of the Constitution; a division bench (including Mitter, J.) initially inclined to grant a certificate under article 133(1)(a) but, in view of a prior division-bench decision (Mugneeram Bangur & Co. v. Kalidas Ghosh, 59 Cal WN 681), referred the matter to a Full Bench framing two legal questions (see Legal Issues Presented).

Legal Issues Presented

  1. Whether in a suit for specific performance of a contract for sale or purchase of property, the value of the subject matter of the dispute is the value of the property or whether the value of the subject matter of the dispute is the difference between the actual market price of the property and the contract price for which the vendor is bound to convey the property to the purchaser.
  2. Whether the case of 59 Cal WN 681 (Mugneeram Bangur & Co. v. Kalidas Ghosh) is rightly decided so far as question (1) above is concerned.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mugneeram Bangur & Co. v. Kalidas Ghosh (59 Cal WN 681) Held that in a suit for specific performance the "subject matter of the dispute" was the difference between the actual value of the property and the contract price (monetary measure of gain or loss). The Full Bench considered this holding and expressly disagreed with it on question (1), holding that the value of the subject matter is the value of the property itself (and that Mugneeram was not rightly decided on that point).
Garikapati Veeraya v. N. Subbiah Choudhry & Others (AIR 1957 SC 540) Established that where a suit was filed before 26 January 1950 there was a vested right of appeal and the Rs. 10,000 valuation test (pre-Constitution figure) applied to such suits; discussed transitional jurisdictional principles. The Full Bench relied on this decision to treat Rs. 10,000 as the relevant valuation benchmark for suits instituted before the Constitution came into force when assessing entitlement to a certificate/appeal.
Mohun Lall Sookul v. Bebee Doss ((1857-59) 7 Moo Ind App 428 (PC)) Shows that leave to appeal could be granted subject to satisfactory evidence that the real/market value of the land exceeded the appealable amount, even where plaintiff's plaint showed a lower fiscal valuation. Used as historical authority supporting the proposition that real or market value is the relevant test for appealability where fiscal or stamp valuations differ from real value.
Gourmoney Debia v. Khaja Abdool Gunny ((1859-61) 8 Moo Ind App 268 (PC)) Similar to Mohun Lall Sookul: leave to appeal could depend on proof of real market value meeting threshold despite fiscal valuation in plaint. Referred to as part of historical authorities supporting market-value focus.
Baboo Lekhraj Roy v. Kanhya Singh ((1874) 1 Ind App 317 (PC)) Observed that valuation made for fiscal purposes (e.g., stamp duty) does not prevent leave to appeal where the real value meets the appealable amount; the right of appeal depends on real value, a matter of fact. Adduced as authority that fiscal valuation is distinct from the real value relevant to appealability.
Pichayee v. Sivagami ((1892) 15 Mad 237 (FB)) Full Bench of Madras held the real or market value of the subject matter in dispute was the test for whether an appeal lay to the Privy Council. Relied upon to support the proposition that real/market value, not fiscal or contract price alone, is significant for appealability.
Krishnabai v. Framroz Edulji Dinshaw (AIR 1932 Bom 543) Chief Justice Beaumont C.J. held that if a suit is brought for specific performance of a contract to sell or purchase property of value over Rs. 10,000 the subject matter is property of that value notwithstanding that the purchase money may be of similar value. Cited as authority supporting the position that the property itself constitutes the subject matter for valuation for appeal purposes.
Kashiprasad v. Baiju Paswan (AIR 1953 Pat 24) Considered valuation under Court Fees Act and Suits Valuation Act for specific performance suits; held such suits fall under the Court Fees Act provision that uses the contract consideration for fiscal valuation. Noted as an instance where court-fee valuation (contract consideration) differs from market-value considerations; the Full Bench observed that the case did not decide the Article 133/section 110 valuation issue.
Haramoni Devi v. Balaram Panda (AIR 1957 Orissa 109) Orissa High Court held that valuation in suits for specific performance should be based on the property’s real/market value and that the plaintiff is at liberty to give valuation of the property itself rather than merely the contract price. Relied upon by the Full Bench as supportive authority for treating the property’s market value as the subject matter value.
Hari Mohan Misser v. Surendra Narayan Singh (ILR 31 Cal 301) Authority cited for the proposition that plaintiffs may show the real value of the subject matter notwithstanding fiscal valuation fixed under the Court Fees Act. Used to support the ability of a litigant to demonstrate real value where fiscal valuations might understate appealability.
Mahendra Narayan v. Janiki Nath (AIR 1931 Cal 417) Stated that the value referred to in section 110 of the Code is the real or market value and that doctrine of approbate and reprobate does not apply where plaints are valued on another basis for fiscal reasons. Cited to reinforce that section 110 (and by analogy valuation for appeal purposes) looks to market value, not solely fiscal valuation.
Srimati Rajah Kishore Devigaru v. Bhaskara Gouta Ghorani (AIR 1960 Andhra Pra 286) (Full Bench) Held that the value of the subject matter depends on the nature/object of the proceeding and the purpose of valuation; for Article 133(1)(a) one must look at the value of reliefs (excluding costs) that the plaintiff could obtain as of the date of institution; for appeal valuation, look from appellant’s point as of date of judgment. The Full Bench relied on these principles in analyzing how to determine the value for Article 133 and section 110 purposes and applied them in concluding the value for the present suit.
Macfarlane v. Laclaire (15 Moo PC 181) Judicial Committee authority employed by Andhra Full Bench to support assessing value from the point of view of the party bringing or resisting the appeal. Referenced via the Andhra Pradesh Full Bench decision as background to the approach adopted for valuation from plaintiff/appellant perspectives.

Court's Reasoning and Analysis

The opinion proceeds in the following analytical steps (stating only what the opinion contains):

  1. Historical and statutory context: The judge traces the evolution of valuation requirements for appeals (from colonial instruments, Orders in Council, Letters Patent and Privy Council-era statutes) and describes how valuation thresholds (e.g., Rs. 10,000 as the relevant figure for suits instituted before the Constitution) became part of the legal framework. The Supreme Court decision in Garikapati Veeraya was relied upon to fix the applicable valuation figure (Rs. 10,000) for suits instituted before 26 January 1950.
  2. Identification of the legal question: The Full Bench was asked to decide whether in a suit for specific performance the "subject matter of the dispute" for valuation purposes is (a) the property itself (its market value) or (b) only the monetary difference between market value and contract price.
  3. Analysis of the plaintiff’s objective in a specific-performance suit: The court reasons that the plaintiff's objective is to obtain the property itself by enforcing the vendor's obligation to convey; therefore the property is the object of the suit. The judge notes that although the plaintiff must pay the purchase money, the plaintiff is seeking the property and its value is therefore relevant.
  4. Distinction between fiscal valuation and real/market valuation: The opinion repeatedly distinguishes valuations made for fiscal purposes (e.g., for court-fee or stamp duty computation based on contract consideration) from the real or market value relevant to determining appealability under section 110 or Article 133. Several authorities are cited to support this distinction.
  5. Rejection of the "difference-only" approach (Mugneeram reasoning): The court critiques the reasoning in Mugneeram Bangur that confined the subject matter to the difference between market value and contract price. The judge gives examples showing the absurdity or unsatisfactory consequences of that approach (for instance, if plaintiff seeks entire property the defendant would lose the property itself, and the "difference" approach could imply a nil value if property market value did not change). The Full Bench finds the Mugneeram view untenable and not persuasive.
  6. Reliance on authorities supporting market-value approach: The court cites multiple authorities (including Privy Council-era decisions, Madras Full Bench, Krishnabai, Haramoni Devi, Mahendra Narayan, and the Andhra Pradesh Full Bench) that treat the real or market value of the property (or the value of the reliefs the plaintiff could obtain) as the measure for valuation. The opinion adopts the approach that for valuation under Article 133(1)(a) one looks at the value of the reliefs the plaintiff could obtain (excluding costs) as of the date of institution, and for valuation in dispute on appeal one looks from the point of view of the appellant as of the date of judgment (following the Andhra Full Bench summary).
  7. Application to the present facts: The Full Bench determines that in the present case the suit (instituted before the Constitution) involves a property whose value exceeded the applicable Rs. 10,000 threshold, and that both the value of the subject matter in the court of first instance and the value of the subject matter in dispute on appeal exceed Rs. 10,000.
  8. Conclusion drawn from analysis: Concluding that the subject matter is the property (its value) and not merely the difference between market value and contract price, the Full Bench answers question (1) in favour of the property-value rule and answers question (2) by holding that Mugneeram was wrongly decided as to question (1).

Holding and Implications

Holding: 1. The value of the subject matter of the dispute in a suit for specific performance of a contract for sale or purchase of property is the value of the property itself (the real or market value), and not merely the difference between the actual market price and the contract price.

2. The Full Bench held that the decision in Mugneeram Bangur & Co. (59 Cal WN 681) was not rightly decided insofar as it held that the subject matter is only the difference between market value and contract price.

Direct consequences and orders (as stated in the opinion):

  • The petitioning party is entitled to a certificate under article 133(1)(a) of the Constitution because the value of the subject matter of the suit in the first instance and the value of the subject matter in dispute on appeal both exceed Rs. 10,000 (the relevant pre-Constitution threshold applied here).
  • The costs of the application, including the Full Bench hearing, are to be costs in the appeal to the Supreme Court.
  • The Full Bench certified the matter for two counsel, and explicitly granted the certificate for filing an appeal to the Supreme Court.
  • The opinion records agreement by the other two judges (Sinha, J. and Chatterjee, J.).

Implications regarding precedent:

  • The Full Bench expressly disapproved the Mugneeram Bangur division-bench holding on the point now decided; thus the opinion corrects that earlier holding in respect of the specific legal question framed before the Full Bench.
  • No other broader policy or rule beyond the valuation principle and the specific certification of the present appeal is declared in the opinion text.

This summary is based exclusively on the material contained in the provided opinion. Sections not present in the opinion (for example, a granular account of each party's contentions in the present petition) have been omitted or replaced by a standardized note indicating their absence.

Show full summary ...

    Brindaban Chandra Basak v. Kalipada Bandopadhyay And Others

    Mitter, J.:— The question before the Full Bench in Ibis reference arises out of an application for a certificate under article 138(1) of the Constitution in a proposed appeal from a decision of a division bench of this Court dated April 4, 1963 by which the judgment and decree of the trial Court granting specific performance of a contract for sale of a properly in Calcutta was reversed. The decision of the division bench not being one of affirmance entitles the petitioner to a certificate as a matter of course if the valuation test laid down in the said article is satisfied. The suit for specific performance was filed on February 13, 1945 on a contract which fixed the price of the premises No. 81, Girish Park North in Calcutta at Rs. 15,000. On March 25, 1946 this properly was put up to sale at an auction and was purchased by the respondent No. 8 Dhone Krishna Das for a sum of Rs. 24,000. The petitioner Brindaban Chandra Basak filed a suit on April 16, 1946 impleading all necessary parties including the purchaser Dhone Krishna Daw. The suit was decreed following a judgment delivered on March 23, 1959. This decree was however up set in appeal. Being desirous of taking the mallei to the Supreme Court the plaintiff filed an application for a certificate under article 133 of the Constitution. This application was heard by a division bench consisting of the learned Chief Justice and myself. We were inclined to lake the view that the proposed appellant to the Supreme Court was entitled to a certificate as a mailer of course under article 133(1)(a) of the Constitution. But our attention being drawn to a previous judgment of a division bench of this Court in Mugneeram Bangur & Co.… v. Kalidas Ghosh…Opposite Patty.. (1955) 59 Cal WN 681, where it had been laid down that the “subject matter of the dispute” in a suit for, specific performance of a contract for sale of a property was not the properly but was the difference between the actual value of the properly and the contract price for which the vendor would be bound to convey the properly to the purchaser, we look the view that the mailer should be referred to a full bench framing the questions of law as below.

    (1) Whether in a suit for specific performance of a contract for sale or purchase of properly, the value of the subject mailer of the dispute is the value of the properly or whether the value of the subject matter of the dispute is the difference between the actual market price of the properly and the contract price for which the vendor is bound to convey the property to the purchaser, and

    (2) Whether the case of 59 Cal WN 681 is rightly decided so far as question (1) above is concerned.

    2. It may be of some interest to trace the history of the statutory provisions with regard to the valuation for the purpose of final appeals from litigation in India. Formerly such appeals lay to the King or Queen in Counsel in England. Cl. 30 of the Charter establishing the Supreme Court of Judicature at for William in Bengal dated 26th March, 1774 gave to the litigants the right to pray for leave to appeal. Such appeals were, however, to be regulated “in such manner and form and under such rules, as are observed in appeals made….. from… plantations or colonies, or from… ……..islands of Guernsey, Jersey. Sark and Alderney.” By Clause 38 power was reserved to his Majesty, his heirs and successors in the Privy Council upon the petition of any person aggrieved by a judgment, decree, or other order or rule of the Supreme Court of Judicature at Port William in Bengal to refuse or admit the said appeal upon such terms as was thought fit to reform, correct or vary such judgment, decree or order as would be thought fit. The clause was subject to a proviso that “no appeal shall be allowed by the said Supreme Court of Judicature at Fort William in Bengal unless the petition for this purpose shall be preferred within six months from the day of pronouncing the judgment, decree or decretal order complained of, and unless the value of the matter in dispute shall exceed the sum of 1000/- pagodas.” It may be mentioned here that “Pagoda” according to the Concise Oxford English Dictionary, was a “gold coin once current in South India”. The Act of Settlement (Statute 21 Geo. 3. Cap. 70) was enacted in the year 1781 for establishing certain regulations for the better management of the affairs of the East India Companies as well as in India as in Europe, as related to the Administration of Justice in Bengal. Cl. 21 thereof provided that “whereas the Governor General and Council, or some committee thereof, or appointed thereby, do determine on appeals and references from the country, or Provincial Courts, in civil causes, be it further enacted, that the said Court shall, and always may, hold all such pleas and appeals in the manner and with such powers as it hitherto hath held the same, and shall be deemed in law a Court of Record, and the judgments therein given shall be final and conclusive, except upon appeal to His Majesty in civil suits only, the value of which shall be five thousand pounds and upwards.” By an Act passed in the fourth year of the reign of his Majesty King William the Fourth, i.e, 3 and 4 Will. IV. Chapter 41 it was enacted amongst other things that “It shall be lawful for his Majesty in Council from time to time to make am such rules and orders as may be thought fit., for the regulating the mode, form and time of appeal to be made from the decisions of the Courts of Sudder Dewanny Adawlut, or any other Courts of Judicature in India or elsewhere………. and in like manner from time to time to make such other regulations for the preventing delays in the making or hearing such appeals, and as to the expenses attending the said appeals, and as to the amount or value of property in respect of which any such appeal may be made” By an Order in Council of the 16th day of January, 1836 his Majesty approved certain rules and orders for regulating the mode, form and time of appeal from the decisions of the said courts of Sudder Dewanny Adawlut which rules and orders were set forth in Schedules A and B to the said order. These Schedules were amended by another Order in Council on 10th day of August, 1836. After the demise of his Majesty (William IV) her Majesty (Queen Victoria) was pleased to cancel and rescind all the said Rules, Orders and Regulations of the 16th January, 1836 and 10th August, 1836 and to approve of rules, orders and regulations contained in the schedule to the Order in Council of the 10th April, 1838. Rule 1 of the schedule to the latest order in Council provided that “from and after December 31, 1838 no appeal to her Majesty, her heirs and successors in Council, shall be allowed by any of her Majesty's Supreme Courts of Judicature all Fort William in Bengal….. or by any of the courts of Sudder Dewanny Adawlut, or by any other Courts of Judicature in the territories under the Government of the East India Company, unless……….the value of the mailer in dispute in such appeal shall amount to the sum of ten thousand Company's rupees at least: and that, from and after the said 31st day of December next, the limitation of five thousand pounds sterling heretofore existing in respect of anneals from the Presidency of Fort Williams in Bengal, shall wholly cease and determine.” Rule 2 provided that” in all cases in which any of such courts shall admit an appeal to her Majesty, her heirs and successors in Council it shall specially certify on the proceedings that the value of the matter in dispute in such appeal amounts to the sum of ten thousand Company's rupees or upwards. “By Act 21 and 25 Vict Cap. 104 power was given to her Majesty by Letters Patent under the great seal of the United Kingdom to erect and establish the High Court of Judicature all Fort William in Bengal for the Bengal Division of the Presidency of Fort William and by like Fetters Patent to erect and establish like High Courts all Madras and Bombay for those Presidencies respectively. Under section 8 of the Act “upon the establishment of such High Court as aforesaid in the Presidency of Fort William in Bengal, the Supreme Court and the Courts Sudder Dewanni Adawlul and Sudder Nizamul Adawlul at Calcutta in the same Presidency shall be abolished:……… and the records and documents of the several courts so abolished in each Presidency shall become and be records and documents in the High Court established in the same Presidency” “Under sec. 10 until the Crown otherwise provided under the powers of the Act “all jurisdiction then exercised by the Supreme Courts of Calcutta, Madras and Bombay respectively over inhabitants of such parts of India as may not be comprised within the local limits of the Fellers Patent to be issued under the Act establishing High Courts at Fort William. Madras and Bombay, shall be exercised by such High Courts respectively. “Under section 11 “upon the establishment of the said High Courts……..all provisions then in force in India of Ads of Parliament, or of any orders of her Majesty in Council or Charters, or of any acts of the Legislature of India, which at the time or respective times of the establishment of such High Courts are respectively applicable to the Supreme Courts at Fort William in Bengal, Madras and Bombay respectively, or to the Judges of those Courts, shall be taken to be applicable to the said High Courts and to the Judges thereof respectively, so far as may be consistent with the provisions of this Act and the Letters Patent to be issued in pursuance thereof, and subject to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council.”

    3. The first Letters Patent of the High Court of Judicature at Port William in Bengal bear the date 14th May, 1862. Cl. 39 of the said Letters Patent which made provisions for appeals to the Privy Council from the High Court in its Civil Appellate Jurisdiction and in its Original Civil Jurisdiction laid down that “the matter in appeal” was to be of the value of Rs. 10,000/- or was declared by the Court to be a fit one for appeal. Statute 28 and 29 Vict., Cap. 15 was passed on the 7th April, 1865 for the purpose of extending the term for granting fresh Letters Patent for the High Courts in India, and to make further provision respecting the territorial Jurisdiction of the new Courts. In pursuance of the powers reserved by the said Act fresh Letters Patent were issued on the 28th December, 1865 revoking the then Current Letters Patent of the High Court at Fort William in Bengal and providing inter alia that the said High Court would be and continue as from the time of the original erection and establishment thereof, the High Court of Judicature a I Foil William in Bengal for the Bengal Division of the Presidency of Fort William, that the said Court would be and continue a Court of Record, and that all rules and orders in force in the said High Court immediately before the date of the publication of the fresh Letters Patent shall continue in force, except so far as the same were altered by such fresh Letters Patent or until they were altered by competent authority. Cl. 39 of the fresh Letters Patent gave to litigants the right of appeal to the Queen in Privy Council, in any matter not being of criminal Jurisdiction, from any final judgment, decree or order of the High Court of Judicature at Fort William in Bengal, only when “the sum or mailer all issue” was of the amount or value of not less than Rs. 10,000/-. or when judgment, decree or order involved, directly or indirectly, some claim, demand, or question to or respecting property amounting to or of the value of not less than Rs. 10,000/-. or from any other final judgment, decree, or order made either on appeal or otherwise when the High Court declared that the case was a fit one for appeal to the Queen in the Privy Council.

    4. The Privy Council Appeals Act was passed in the year 1874. Section 5 thereof enacted that “the amount or value of the subject matter of the suit in the court of first instance must be Rs. 10,000/- or upwards, and the amount or value of the matter in dispute on appeal to Her Majesty in Council must be the same sum or upwards.” These words were incorporated in section 596 of the CPC of 1882. section 109 of the CPC of 1908 regulated the right of appeal to His Majesty in Council. By section 110 it was provided that “the amount or value of the subject matter of the suit in the court of first instance must be Rs. 10,000/- or upwards, and the amount or value of the subject matter of dispute on appeal to his Majesty in Council must be the same sum or upwards, “or the judgment, decree or final order must involve directly or indirectly some claim, demand or question to or respecting properly of like amount or value, and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such judgment, decree or final order the appeal must involve some substantial question of law. By the Adaptation of Laws Order of 1950 the figure of Rs. 10,000/- was substituted by Rs. 20,000/-. “His Majesty in Council” by “the Supreme Court” and the words “decree or final order” by “judgment, decree or final order.” in the said Sections of the Code of Civil Procedure.

    5. Article 133(1) of the Constitution provides as follows:

    “An appeal shall be to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies

    (a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

    (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

    (c) that the case is a fit one for appeal to the Supreme Court: and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-cl (c), if the High Court further certifies that the appeal involves some substantial question of law.”

    6. It is now well settled that the valuation to be considered in a suit which was filed before the coming into force of our Constitution for the purpose of appeal to the Supreme Court was and is Rs. 10,000/- In Garikapati Veeraya v. N. Subbiah Choudhry & Others) AIR 1957 SC 540 an application was made for special leave to appeal to the Supreme Court from a decree in a suit which had been instituted on April 22, 1949. The judgment of the trial Court was passed on November 14, 1950 dismissing the suit. The High Court of Andhra accepted the appeal and reversed the decree of the trial court on March 4, 1955 The application for leave to appeal to the Supreme Court before the High Court was dismissed on the ground, inter alia, that the value of the property was only Rs. 11,400/- and did not come up to the amount of Rs. 20,000/-. After an exhaustive review of the various authorities cited at the bar and the relevant provisions of the Constitution the provisions of the old Civil Procedure Code read with Government of India Act, 1935 and the Federal Court (Enlargement of Jurisdiction) Act, 1947, the Supreme Court by a majority took the view that where the suit was filed before January 26, 1950 there was a vested right of appeal which did not fall within Article 133 and jurisdiction and powers with respect to such right of appeal was exercisable by the Federal Court immediately before the commencement of the Constitution and consequently the applicant had a right of appeal under Article 135 and the High Court was in error in refusing leave to appeal to the petitioner.”

    7. We have therefore to see whether the value of the subject matter of the suit in the court of first instance was Rs. 10,000/- or upwards and the amount or value of the subject matter in dispute on appeal to the Supreme Court is the same sum or upwards in terms of the decision of the Supreme Court in Garikapati Veeraya's case (S) AIR 1957 SC 540.

    8. Apart from decisions on the subject, to which I shall presently refer, it seems to me to be beyond any doubt that the subject matter of the suit in the court of first instance where specific performance of a contract for sale of properly is asked for is the property itself. The only difference between the wording of section 110 of the CPC and Article 133(1)(a) is that in one it is the value of the subject matter of the suit and in the other it is the value of the subject matter of the dispute. In my view the difference is immaterial as the object of the suit is to resolve the dispute between the parties. The aim of the plaintiff in a suit for specific performance of a contract to purchase immovable property is to compel the defendant to honour his bargain and to convey the property. Clearly what the plaintiff is after is the property itself although no doubt he must fulfil his part of the bargain by paying the purchase money in full or the balance of the consideration if he has already paid a part. Normally parties enter into a contract for sale or purchase of immovable property at the market price of the day. Leaving aside exceptional cases like those where the property suffers a depreciation in value by reason of flood or earthquake or other like cause, the value of the subject matter of the suit in the Court of the first instance will normally be the contract price of the property. Again leaving aside the question of violent fluctuations in the market value of the land the value of the subject matter of the suit is likely to be the same on appeal to the Supreme Court. The amount of the subject mailer of the dispute in the court of the first instance even if it exceeds Rs. 10,000/- may in a suit for recovery of a loan, fall below that limit by the time when one of the litigants seeks to go up to the Supreme Court by reason of any payments made in the meantime. We are however not concerned with such a question in this case the actual market price of the property may have to be considered if there has been a considerable deviation after the date of the contract and specially in between the date of the suit in the court of the first instance and the date of the proposed appeal to the Supreme Court. There is no such question here as it is well known that the market value of properties in and around Calcutta had been steadily going up since the year 1945 when the contract was entered into. There is no suggestion here that the market value of the property at the date of the suit was less than Rs. 10,000/-.

    9. We need not go into the question as to whether a suit for specific performance of a contract for purchase of land is a suit for land within the meaning of cl. 12 of the Fetters Patent. We are only concerned with the value of the subject matter of the suit which in this case is to enforce a contract for purchase of property worth more than Rs. 10,000/-. The value must at least be commensurate with the value of the contract which exceeds Rs. 10,000/-, whatever may be the actual market price of the properly.

    10. In Mohun Lall Sookul v. Bebee Doss, (1857-59) 7 Moo Ind App 428 (PC), an application was made before the Judicial Committee of the Privy Council for Special leave to appeal. The petitioner had brought a suit in the Court of the Principal Sudder Ameen of the Zilla of Chittagong against one Ram Doss (since deceased) as mortgagor, under a deed of conditional mortgage, to recover possession of the mortgaged premises, the value of which was laid in the plaint at Rs. 3,522/-. The decrees of the Sudder Ameen and Zillah Court on appeal were in his favour but the Sudder Dewanny Court at Calcutta had reversed these decisions. The petitioner alleged that although the real or market value of the land sought to be recovered in the suit exceeded the value of Rs. 10,000/- yet the amount laid in the plaint as the value of the subject of the suit was Rs. 3,572/- only, that amount being assessed for fiscal purposes, namely three times the amount of one year's jumma or rent. As the petition was heard ex parte, the Board by order in Council gave leave to appeal to the petitioner upon depositing the sum of 300 sterling as security for the costs of the respondents, in case the appeal should be dismissed and the Registrar of the Sudder Dewanny Adawlut was directed to transmit together with the record, satisfactory evidence, to be supplied by the petitioner, that the real or market value of the land in dispute exceeded the sum of Rs. 10,000/-. otherwise such leave to appeal would be null and of no effect. The same course was adopted in Gourmoney Debia v. Khaja Abdool Gunny. (1859-61) 8 Moo Ind App 268 (PC). In Baboo Lekhraj Roy v. Kanhya Singh, (1874) 1 Ind App 317 (PC), the properly in dispute in appeal was of the value of Rs. 10,000/-, but in the plaint the value was given in terms of the Indian Stamp Act, XXXVI of 1867 at a sum being ten times the annual revenue assessed upon the properly which was much less than the appealable amount. The High Court at Calcutta having refused leave to appeal to Her Majesty in Council an application was made for special leave before the Judicial Committee. The Board observed that “a valuation made in conformity with that law, did not prevent a party from obtaining leave to appeal where the real value did not fall short of the appealable amount……. The stamp duties imposed for fiscal purposes are calculated on a certain rule, fixed by law, but the right of appeal depends on the value, which is a matter of fact: and on this head the Court below appears to have been satisfied. Leave to appeal will be granted on the ordinary terms.”

    11. The meaning of the phrases “value of the subject matter of the suit in the court of first instance” and “value of the subject matter in dispute on appeal” came up for consideration by a Full Bench of the Madras High Court in Pichayee v. Sivagami, (1892) 15 Mad 237 (FB) Referring to the cases cited above and the Privy Council Appeals Act of 1874 Collins C.J held that the real or market value of the subject matter in dispute was the test as to whether an appeal lay to the Privy Council. According to Muttusami Ayyar, J., the value of the subject matter in dispute on appeal to Her Majesty in Council and of the subject matter of the suit in the Court of first instance were no other than the market values.

    12. In Krishnabai v. Framroz Edulji Dinshaw, AIR 1932 Bom 543, a widow filed a suit claiming maintenance and a right of residence from her late husband's estate. The court decreed the suit giving her maintenance and further declaring that she should be entitled to occupy certain premises and in case it became necessary for the executors to sell the said premises they were to pay further maintenance of Rs. 400/- per month in lieu of such residence. Subsequent to that order the executors received an offer for the sale of the premises which they considered very advantageous and they therefore called upon the plaintiff to vacate the premises and accept Rs. 400/- a month. On her refusal to do so the defendants gave a notice of motion asking that she might be ordered to vacate and deliver over to the defendants peaceful and quiet possession of her premises in her occupation. On that motion Kania, J. (as he then was) held that the executors had not made out any necessity for sale. The executors appealed and the Court of Appeal held that a necessity for sale had arisen and made an order accordingly. It was from this order that the plaintiff sought leave to appeal to the Privy Council Before the bench hearing the application it was contended by counsel for the applicant that in substance it was a suit for ejectment and that the subject matter of the property was the portion of the premises in the applicant's occupation which was worth more than Rs. 10,000/- On behalf of the executors it was argued that the subject matter of the appeal was really only the difference between the premises in the occupation of the widow and Rs. 400/- a month which she would get when she vacated this premises. On this counsel for the applicant pointed out that “if that really be the test it is difficult to see how in a specific performance action an appeal can ever be brought before the Privy Council.” According to the learned Chief Justice Beaumont C.J “if a suit is brought for specific performance of a contract to sell or purchase properly of the value of over Rs. 10,000/- the subject matter of the suit is property of the value of over Rs. 10,000/- notwithstanding the fact that the purchase money which the plaintiff is to get in return may be of the same value.”

    13. So far as the subject matter of the appeal before the Privy Council was concerned the learned Chief Justice held that its value was really the value of the premises which the applicant was required to vacate.

    14. In Kashiprasad v. Baiju Paswan, AIR 1953 Pat 24, there was a question with regard to the valuation of a suit for specific performance of a contract of sale of certain lands and for possession thereof under the Court Fees Act as also under section 8 of the Suits Valuation Act for the purpose of jurisdiction. The plaintiff had contracted to buy a plot of land for a consideration of Rs. 1700/- and he filed a suit on the allegation that the defendant had wrongfully failed to convey the land to him and sold it to a third party (the second defendant) and put him in possession. The suit was valued at Rs. 1700/- and the court fee was paid thereon under section 7(x)(a) of the Court Fees Act and the same amount was given as the value for the purpose of jurisdiction under the Suits Valuation Act. There was a dispute as regards the amount of court fee payable. The defendant contended that the suit should be valued according to the market value of the property under section 7(v) of the Court Fees Act. This contention was accepted both by the Munsif and the District Judge. The plaintiff applied by way of revision to the High Court Jha, C.J held that the suit was essentially one for specific performance of a contract and the right to possession of the land was comprised in the same relief, the addition of the prayer for possession making no difference. As the defendant second party was claiming under the defendants first party by a title arising subsequent to the contract of sale in favour of the plaintiff he stood in the same position as the defendants first party. Further the cause of action for delivery of possession was not different from the cause of action for the specific performance of the contract itself. Considering all the authorities cited the learned Chief Justice was of opinion that the case fell under section 7(x)(a) of the Court Fees Act. Reuben, J. was of the same view. It should be noted that under section 7(x)(a) the amount of court fee payable under the Act in suits for specific performance of a contract of sale is to be according to the amount of the consideration. The question that the learned Judges of the Patna High Court had to consider was whether the addition of a prayer for possession and mesne profits brought the suit within the compass of section 7(v)(a). Their Lordships did not have to consider the value of the subject matter of the suit for the purpose of section 110 of the C.P Code or Article 138 of the Constitution.

    15. The question arose directly in Haramoni Devi v. Balaram Panda (S) AIR 1957 Orissa 109 In this case there was an agreement to sell a certain property for Rs. 9500/-. The suit was filed on August 29, 1945 for specific performance. It was valued for the purpose of court fees and jurisdiction at the sum mentioned. The appeal to the High Court was filed on November 26, 1947 and was disposed of on November 11, 1954. In the application by the defendant under Article 133 of the Constitution read with sections 109 and 110 of the CPC one of the questions which the learned Judges had to consider was whether the valuation test was satisfied. On the matter of the valuation being referred to the trial court it was reported that the property was worth Rs. 18,500/- on the date of the institution of the suit and at Rs. 15,000/- by the time of the decree of the High Court. The contention put forward on behalf of the respondent was that the consideration being Rs. 9,500/- the value of the subject matter must be taken to be the said sum. This contention was, however, rejected by the learned Judges of the Orissa High Court. They relied on certain observations of this court in Hari Mohan Misser v. Surendra Narayan Singh, ILR 31 Cal 301. There the plaintiffs had instituted a suit praying for a perpetual injunction restraining the defendants from altering the character of a plot of land by erecting thereon buildings for the manufacture of indigo and by excavating the land for the purpose of constructing indigo vats in it. The suit was valued in the plaint at Rs. 15,000/-. The defendants alleged that they were co-sharers with the plaintiffs of the land in dispute and had construed the factory and other necessary buildings at a cost exceeding Rs. 16,000/- with the knowledge and consent of the plaintiffs and the character of the land was not in any way changed. The suit was decreed by the Subordinate Judge but dismissed in appeal to the District, Judge. The plaintiff succeeded in the appeal to the High Court and the defendants applied for leave to appeal to his Majesty in Council. According to the defendants the real value of the relief claimed in the suit, judged from the practical result thereof to the defendants, was much over Rs. 10,000/- and the decree of the High Court directly and indirectly involved questions respecting property worth more than Rs. 10,000/-. In granting the certificate Maclean, C.J, observed that “notwithstanding the fact, that, having regard to section 7 of the Court Fees Act the value of the suit was fixed at Rs. 15,000/-, I think it is open to the petitioner, having regard to the nature of the relief sought, to show what was the real value of the subject matter in the case…….. If the plaintiffs are entitled to a perpetual injunction practically restraining the defendants from carrying on the indigo business, it must be obvious that the defendants may sustain a loss far greater than the mere cost of the buildings.”

    16. The learned Judges of the Orissa High Court also relied on the observation of this Court in Mahendra Narayan v. Janiki Nath, AIR 1931 Cal 417 that “the value referred to in section 110 of the Code is real or market value and the where, under the Court fees Act or otherwise a plaint or memorandum of appeal is not required to be valued according to the real or market value, but is allowed or required to be valued upon some other basis the doctrine of approbate and reprobate does not apply”.

    17. On a review of these and other decisions the learned Judges of the Orissa High Court held “that the valuation in suits for specific performance according to the consideration of the contract of sale is a valuation for fiscal purposes and the appellant is at liberty to give the valuation of the subject matter of the suit, the subject matter of the suit being the property contracted to be sold.”

    18. This review of the authorities may be concluded with a reference to a decision of a Full Bench of the Andhra Pradesh High Court in the year 1960 wherein most of the older authorities were reviewed. The case is that of Srimati Rajah Kishore Devigaru…Petitioner*; v. Bhaskara Gouta Ghorani Etc.…, AIR 1960 Andhra Pra 286 (FB). There the facts were as follows: One Kishori Devi, transferee of a money decree for a little over Rs. 10,000/- passed against Lakshmi Narayan Raju, attached a number of immovable properties as belonging to the judgment debtor. The respondents filed two applications for releasing the respective properties from the attachment claiming to be owners of the properties basing their title on a settlement executed by the judgment debtor some time before they were attached. On the dismissal of these applications they brought two suits under O. 21 R. 63 Here the subject matter of the suit was the right of the plaintiffs to obtain a release of properties in their possession from attachment levied as the instance of some of the defendants. It was observed by the full bench that “the value of the subject matter of a proceeding must naturally depend on the nature and object of the proceeding and the purpose of the valuation” “So far as the value of the subject matter of the suit in the court of the first instance was concerned it was said “that the subject matter and the amount or value thereof must naturally be looked at from the point of view of the plaintiff, because it is he that brings the suit and is the dominus litis. “Similarly with regard to the value of the subject matter in dispute on appeal to the Supreme Court it was said that “the subject matter in dispute must be determined by looking at the portion of the decree sought to be got rid of from the point of view of the appellant,” relying on the judgment of the Judicial Committee in Macfarlane v. Laclaire, 15 Moo PC 181. The conclusions of the Full Bench are summarised at page 291 of the report. It was held inter alia that for valuation under section 110 the amount or value of the reliefs excluding costs which the plaintiff could directly obtain if he was successful, as on the date of the institution of the suit would have to be considered while for valuation under All 133(1)(a) the amount or value of the reliefs excluding costs which the plaintiff could, either directly or indirectly by the principle of res judicata, have obtained if lie was successful as on the date of the institution of the suit be looked all Again for the valuation of the subject matter in dispute on appeal to the Supreme Court both under section 110, paragraph and Article 133(1)(a) the effect of the judgment appealed from must be looked at from the point of view of the appellant as on the date of the judgment.

    19. In the light of these conclusions the value of the reliefs claimed by a plaintiff who wants to enforce a contract for sale of land to him is the value of the properly which he would get if he was successful in his suit. The value would be the same if the plaintiff desires to appeal to the Supreme Court unless the market price of the property goes down between the date of the suit and the date of the appeal. Even if the contract price was below the limit fixed that would be immaterial if the real or market value exceeded the said limit because by being deprived of his right to get the properly the plaintiff would be losing the equivalent of the property.

    20. In Mugneeram Bangur & Co.… v. Kalidas Ghosh…Opposite Patty.. 59 Cal WN 681, a division bench of this Court dismissed a defendant's application for leave to appeal to the Supreme Court against a decree by the High Court granting specific performance of a contract for sale of property upsetting the dismissal of the suit by the trial court. There was a dispute with regard to the value of the subject matter. The subordinate Judge to whom the matter was referred for enquiry held and reported that the value of the land in dispute on September 23, 1946 when the suit was filed was Rs. 28,800 and its value on June 9, 1954 (after the decision of the division bench of this Court on April 15, 1954) was Rs. 30,400. It was argued on behalf of the plaintiff-respondent that inasmuch as the High Court had held that the respondent was entitled to get the land on payment of the contract price the dispute was whether the plaintiff was entitled to get it on payment of Rs. 14,400 or whether (as was the case of the defendants) they were not bound to sell at all. In view of this it was contended on behalf of the respondent that the value of the subject matter was the difference between the actual value of the land and the contract price for which the appellant would be bound to convex the land if the plaintiff's suit succeeded this was accepted by the division bench and it was said that “the expression ‘subject matter of the dispute’ does not mean the property or the matter to which the dispute relates.”

    21. It was further observed that “there may be a small dispute with respect to a vast properly affecting only an infinitesimal portion of it on a microscopic interest in it. It would be irrational to hold that the framers of the Constitution intended that even in such cases the value of the dispute should be regarded as the value of the property itself, however small might be the proportion it bore to the actual dispute between the parties. “Referring to article 133(1)(a) it was said “when the clauses speak of or refer to the subject matter of the dispute what they have clearly in view is the matter over which the parties are in disagreement and when they speak of the value of such subject matter, they mean the monetary measure of the gain or loss to the parties according as their respective contentions succeed or fail. “It was said further that the phrase ‘subject mailer still in dispute on appeal mean and can only mean the content of the dispute and, therefore as to magnitude of monetary value, the subject matter is limited by the dimensions of the dispute and is not necessarily co-extensive with the properly to which the dispute appertains. If that be so, the value of the subject matter of the dispute in the present case, whether in the court of the first instance or in the proposed appeal, is below the statutory limit”. “With respect I find myself unable to accept the reasoning given.

    22. It seems to me that if for instance it was contended by the plaintiff that he had entered into a contract to buy 8 as share of the property and the defendant said it was not 8 as but 7 as share, the subject matter of the dispute would be the extent of the interest in the property sought to be conveyed which according to the plaintiff was 8 as and according to the defendant was 7 as. The difference between the parties would no doubt be with regard to one anna interest in the property but the subject matter of the dispute in the court of the first instance would be 8 as in the property and if the defendant wanted to go up to the Supreme Court having lost in the High Court the subject matter of the dispute in appeal would be the same. In Mugneeram Bangui's case, (1955) 59 Cal WN 681, the plaintiff's suit being one for specific performance of the contract of purchase he was clearly asking that the property be conveyed to him on payment of Rs. 14,400. Even if the market value of are property remained the same all along the result of the decree of the High Court would have been to make the defendant lose the property of the value exceeding the limit fixed under section 110 of the CPC as it was in force before the advent of the Constitution. The defendant, i.e, the proposed appellant sought to retain the land and the value of the subject matter of dispute on appeal was the value of the land which he was going to lose Further, according to the test laid down in Mugneeram Bangur's case if the value of the property remained the same throughout from the date of the contract to the date of the proposed appeal to the Supreme Court the value of the subject matter of the dispute would be nil a conclusion which can not possibly be accepted. No authorities appear to have been cited before the division bench which disposed of the said petition and I find myself unable to concur in the view therein expressed.

    23. For the reasons given, the answer to the first question is that the value of the subject matter of the dispute in a suit for specific performance of a contract for sale or purchase of property is the value of the property and not the difference between the actual market price of the property and the contract price for which the vendor was bound to convey the property to the purchaser. The answer to the second question is that the case of 59 Cal WN 681 was not rightly decided so far as the first question before the full bench is concerned.

    24. As the judgment of the High Court is not one of affirmance of that of the trial court and as the value of the subject matter of the suit in the first instance as well as the value of the subject matter of the dispute on appeal to the Supreme Court exceed Rs. 10,000 a certificate is granted under article 133(1)(a) of the Constitution. The costs of the application including that of the hearing before the Full Bench will be costs in the appeal to the Supreme Court.

    25. Certified for two counsel.

    Sinha, J.:— I agree.

    Chatterjee, J.:— I agree.

    AJ/AGT/D.V.C

    26. Certificate for filing appeal granted.

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    Brindaban Chandra Basak v. Kalipada Bandopadhyay And Others
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