A. Gunasekaran vs R. Bharathi

S. Tamilvanan, J.—Heard the learned Counsel appearing for the Petitioner as well as the learned Counsel appearing for the Respondent.

Challenging the Order dated 18.12.2012 made in I.A. No. 108 of 2011 in the Suit in O.S. No.85 of 2010 on the file of Principal District Munsif Court, Tiruchengodu, the Revision has been preferred under Article 227 of the Constitution of India.

The Petitioner herein was the Defendant in the Suit which was filed by the Respondent/Plaintiff seeking a decree to declare that the Sale Deed executed by the Respondent/Plaintiff on 25.3.2009 in Document No.2073 of 2009. on the file of Sub-Registrar''s Office, Tiruchengodu, in favour of the Petitioner/Defendant was not supported by consideration as per Agreement on 25.3.2009 and accordingly declare the Sale Deed null and void and also seeking consequential injunction.

An Interlocutory Application in I.A. No.108 of 2011 was filed by the Petitioner/Defendant under Section 12(2) of Tamil Nadu Court Fees and Suit Valuation Act read with Section 151 of Code of Civil Procedure seeking an order to decide the valuation of the Suit and correctness of payment of Court fees, as a preliminary issue. The Court below by the impugned Order dated 18.12.2012 dismissed die Interlocutory Application. Aggrieved by which, the Petitioner/Defendant has preferred die Revision, challenging the said Order.

Mr. N. Manokaran, learned Counsel appearing for the Petitioner submits that the Respondent/Plaintiff had admitted the execution of Sale Deed, dated 25.3.2009, by the Respondent in favour of the Petitioner herein and that the document was executed by the Respondent/Plaintiff, registered by the Sub-Registrar''s Office, Tiruchengodu as Document No.2073 of 2009. As per the Sale Deed, the value of the property is stated at Rs.7,21,500/-. ''Hie Respondent/Plaintiff is not a third party to the Sale Deed, as he himself executed the Sale Deed. It is admitted by the learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff executed the Sale Deed and also registered stating the value of the property at Rs.7,21,500/-. Hence, the Respondent/Plaintiff cannot have a defence stating that for cancellation of the Sale Deed alone to be valued at Rs. 1,000/- notionally and pays a Court-fee of Rs.75.50 under Section 24(d) of Tamil Nadu Court Fees and Suits Valuation Act.

Learned Counsel appearing for the Petitioner submitted that the Court-fee should have been paid by the Respondent/Plaintiff only under Section 40(1) on the value of the Suit property, i.e. Rs. 7,21,500/-. In support of his contention, learned Counsel for the Petitioner/Defendant relied on the following decisions:

1 Satheedevi v. Prasanna and another, 2010 (5) SCC 622;

2 Suhrid Singh Alias Sardool Singh v. Randhir Singh and others, 2010 (2) MWN (Civil) 221 (SC): 2010 (12) SCC 112; and

The decision of this Court (K.K. Sasidaran, J.), Minor Divya and others v. Sengantalai and others, 2011 (3) CTC 26.

Per contra, Mr. P. Venugopal, learned Counsel appearing for the Respondent/Plaintiff drew the attention of this Court to the impugned Order. In the impugned Order, the Court below has considered the market value of the property as stated by the Respondent/Plaintiff under Section 25(d) of the Tamil Nadu Court Fees Act. According to the learned Counsel, a fraud has been played by the Petitioner/Defendant in getting the Sale Deed executed and therefore, the Petitioner is entitled to pay the Court-Fee at the market value of the property at Rs. 1,000/- and further, the same could be considered by the Court below only after the trial. According to him, it is a mistake of fact that could be decided only by the Court below based on evidence. Learned Counsel for the Respondent also relied on the decision in S.N.S. Sukumaran v. C. Thangamuthu, 2012 (5) CTC 705, wherein, a Division Bench of this Court referring the earlier decision in V.R. Gopalakrishnan v. Andiamntal, 2002 (2) CTC 513, while deciding the issue under Order 14, Rule 2, C.P.C. and also under Section 12(2) of the State Act relating to Court-fees, held:

"19. To sum up, the legal position is:

(a) As per the amended Order 14, Rule 2, though a case may be capable of being disposed of on a preliminary issue, the Court is given a mandate to try all the issues together.

(b) However, an exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the Suit as a preliminary issue.

(c) In a given case, the Court may decline to try even an issue relating to is jurisdiction or to a statutory bar to the Suit as a preliminary'' issue if it considers expedient to do so.

(d) The discretion vested with the Court has to be exercised judiciously.

(e) The parties will be at liberty to adduce such evidence as they may desire only in relation to that issue.

(f) Ordinarily, no Revision under Section 151, C.P.C. will be entertained against the Order of the Trial Court once such a discretion is used. But however, it is not an absolute one and in exceptional cases, the Court can entertain Revision and interfere.

(g) When the Defendant comes forward with an Application disputing the valuation of the property or contends that the Suit has not been properly valid, the Court has to consider the same. Such consideration shall be as per Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act and the Court cannot choose to decide that issue along with other issues. This provision, viz., Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, which is a substantial law shall prevail over Order 14, Rule 2, C.P.C. which is procedural law.

(h) In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desire to let in only in relation to that issue/aspect.

(i) The allegations in the Plaint have to be taken as a basis and the claim must be read as a whole. The accepted Rule is that substance alone matters and not the form.

(j) When a Suit is filed seeking a decree to set aside the sale, Court-fee has to be paid on the market value of the property on the date of filing of the Suit.

(k) But however, if a plea is raised that the signature was obtained in a blank paper or that some misrepresentation was made and thereby fraud was placed on the executor, then Court-fee need not be paid for setting aside the same."

It is an admitted fact that the Suit has been filed seeking a decree to set aside the Sale Deed, hence, the Court-fee has to be paid on the market value of the property on the date of filing of the Suit.

As per Section 25(d), in a Suit for declaratory'' decree or order, whether with or without consequential relief, not falling under Section 26:

"(d) whether the subject matter of the Suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the Plaint or on [Rupee one thousand], whichever is higher."

In Satheedevi v. Prasanna and another, 2010 (5) SCC 622, the Hon''ble Supreme Court, having considered various aspects, has held in Paragraphs 19, 20 & 21 is as follows:

"19. The deeming clause contained in the substantive part of Section 40(1) makes it clear that in a Suit filed for cancellation of a document which creates any right, title or interest in immovable property, the Court-fee is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of Court-fee. If the expression "value of the subject matter of the Suit" was not followed by the deeming clause, it could possibly be argued that the word "value" means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of Court-fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words "for which" appearing between the words "property" and "other documents" clearly indicate that the Court-fee is required to be paid on the value of the property mentioned in the document, which is the subject matter of challenge.

If the legislature intended that fee should be payable on the market value of the subject-matter of the Suit filed for cancellation of a document which purports or future right, title and interest, then it would have, instead of incorporating the requirement of payment of fees on the value of subject-matter, specifically provided for payment of Court-fee on the market value of the subject-matter of the Suit as has been done in respect of other types of Suits mentioned in Sections 25, 27, 29, 30, 37, 38, 45 & 48. The legislature may have also, instead of using the expression "value of the property for which the document was executed". However, the fact of the matter is that in Section 40(1) the legislature has designedly not used the expression "market value of the property".

If the interpretation placed by the Trial Court and the High Court on the expression "value of the property for which the document was executed" is accepted as correct then the word "value" used in Section 40(1) of the Act will have to be read as "market value" and we do not see any compelling reason to add the word "market" before the word "value" in Section 40(1) of the Act.

Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, relates to the Suits seeking for cancellation of decrees, etc. and Section 40(1) reads as under:

"40. Suit for cancellation of decrees, etc.- (1) In a Suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be:

If the whole decree or other document is sought to be cancelled, the amount or value of the property, for which the decree was passed or other document was executed;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property ."

In the decisions referred to above, the Hon''ble Supreme Court has categorically held insofar as cancellation of the Sale Deed is concerned that Section 40(1) of the Court Fees Act is applicable and it relates to the value specified in the document and the market value decided by the Plaintiff.

In the decision reported in Suhrid Singh alias Sardool Singh v. Randhir Singh and others, 2010 (2) MWN (Civil) 221 (SC) : 2010 (12) SCC 112, the Hon''ble Apex Court has held in Para 7 as follows:

"7. Where the executant of a deed wants it to be annuled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that is not binding on him. The different between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A & B, two brothers. A executes a Sale Deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and Court-fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem Court-fee on the consideration stated in the Sale Deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null and void and does not bind him or his share, he has to merely pay a fixed Court-fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the Sale Deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem Court-fee as provided under Section 7(iv)(c) of the Act."

Following the aforesaid decision, this Court in Minor Divya and others v. Sengamalai and others, 2011 (3) CTC 26, has held that in a Suit filed for cancellation of Sale Deed executed by the Plaintiff, the Court-fee has to be paid as per Section 40 of the aforesaid Act only on the amount shown in the Sale Deed and not for a lesser amount saying the same as the market value of the property. In the decision rendered by the Division Bench of this Court in S.N.S. Sukumaran v. C. Thangamuthu, 2012 (5) CTC 705, it has been held as follows.

"31. After giving our anxious consideration to the matter and having regard to the law discussed herein above, the reference is answered as under:

(1) The Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Section 12) enacted by the State Legislature on a subject covered by the Concurrent List, albeit inconsistent with the provisions of the Code of Civil Procedure (Order 14, Rule 2) and being in compliance with the requirement of Article 254 of the Constitution of India, having been given assent by the President of India, shall prevail over the provisions of the Code of Civil Procedure.

(2) When a Defendant comes forward with a case pleaded in the Written Statement questioning the correctness of the valuation of the Suit property and payment of Court-fee and asks the Court, by an Application, to decide it first before deciding the Suit on merits, then a duty is cast upon the Court under Section 12(2) of the State Act to first decide the objection before deciding the Suit on merits.

(3) However, before proceeding to decide the objection with regard to valuation and Court-fee as provided under Section 12(2) of the State Act, the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties and the materials brought on record, that the objection raised by the Defendant has substance.

(4) Such objection with regard to improper valuation of the Suit and insufficiency of Court-fee shall be entertained by the Court only before the hearing of the Suit on merits commences and witnesses are examined. Section 12(2) of the State Act makes it clear that such objection shall be heard and decided before evidence is recorded on the merits of the case.

(5) Exercise of right by the Defendant as contained in Section 12(2) of the Act must be bona fide and not with an ulterior motive of dragging the Suit on this issue. Hence, the Court shall not grant unnecessary adjournments in hearing of such Application, and in the event the Court finds that the Defendant is not diligent or co-operating with the Court in the disposal of such objection expeditiously, then the Court shall proceed with the hearing of the Suit on merits and decide all issues, including the one relating to the valuation of the Suit and the adequacy or otherwise of Court-fee, together."

The case of the Respondent/Plaintiff is that she had executed the Sale Deed wherein the valuation of the property is stated at Rs.7,21,500/-. As per Section 114(e) of the Indian Evidence Act, 1872, is that judicial and official acts have to be presumed as regularly performed and any contrary pica has to be established by the person, who disputes the legal presumption. In the instant case, the registration of the Sale Deed was an official act done by the Sub-Registrar, Tiruchengodu. The Respondent/Plaintiff has stated that some fraud has been played by the Petitioner/Defendant in getting the registered Sale Deed without paying the consideration. As per the settled proposition of law, when there is a dispute with regard to valuation of Suit and correctness of payment of Court-fee, the same shall be decided as preliminary issue. Accordingly, the Petitioner/Defendant has raised an issue that the Respondent/Plaintiff having admitted that he had executed the Sale Deed stating the valuation of the property at Rs. 7,21,500/- is estopped from raising a plea that the market value of the property only as Rs.1,000/-. The Court below'' without legally considering the same has simply dismissed the Application against law which warrants interference by this Court.

It has been categorically held that the Sale Deed was executed by the Plaintiff himself stating that the value of the property was at Rs. 7,21,500, hence, the Respondent/Plaintiff cannot raise a plea that the property was at allied at Rs.1,000/- and pays a nominal amount as Court-fee at Rs.75.50/-. The Plaintiff is estopped from value the Suit property notionally at Rs. 1000/- as he himself is a party to the Sale Deed, wherein the value of the property is slated at Rs.7,21,500/-.

As contended by the learned Counsel for the Petitioner/Defendant, the object of deciding the correctness of the payment of Court-fee as preliminary'' issue is mainly to prevent under valuation and payment of deficit Court-fee and thereby evading from paying proper Court-fee payable to the Government. Having admitted that the value of the property at Rs.7,21,500/-, it is not open to the Respondent/Plaintiff to state the market value of the property notionally at Rs.1,000/- and pay Court-fee of Rs.75.50 under Section 24(d) of the Tamil Nadu Court Fees and Suits Valuation Act. The Court below has taken an erroneous view and the same is totally against law, which warrants interference from this Court.

In the result, this Civil Revision Petition is allowed and the impugned Order is set aside and the Court below is directed to decide the appropriate Court-fee as per the Sale Deed under challenge and after providing reasonable time collect the deficit Court-fee by passing appropriate Orders. The cost paid by the Petitioner as directed by the Court below is ordered to be returned to the Revision Petitioner. Consequently, connected Miscellaneous Petition is closed. No order as to costs.