S. Parandhama and Others vs P. Raju and Others

Budihal R.B., J.—1. Heard the arguments of the learned counsel for the writ petitioners/defendant Nos. 1 and 2 and also the learned counsel appearing for respondent - plaintiff. This Writ Petition is filed by defendant Nos. 1 and 2 seeking the relief of Writ of certiorari to quash the order dated 23.9.2015 passed in O.S. No. 7606/14 by the City Civil Judge at Bengaluru (CCH - 12) produced as per Annexure - E.

The respondent/plaintiff filed the suit against the defendants for the relief of declaration that the sale deed dated 23.11.2012 is illegal, invalid, void and non est and not binding on the plaintiff and for a consequent relief of restraining defendant Nos. 1 and 2 from causing obstruction into the peaceful possession and enjoyment of the suit schedule property by the plaintiff. The defendants in the suit filed written statement. On the basis of the said pleadings, the trial court framed as many as nine issues. Issue No. 6 is with regard to payment of court fee and valuation of the suit which reads as under:

"6. Whether the suit is properly valued and requisite court fee is paid on the plaint?"

The matter was heard on both the sides. Ultimately, the trial court passed the order holding that the suit is properly valued and requisite amount is paid on the court fee. Being aggrieved by the said order of the trial court based on issue No. 6, defendant Nos. 1 and 2 are before this Court in this Writ Petition.

Learned counsel for the writ petitioners during the course of his arguments made the submission that the plaintiff has filed the suit seeking declaration that the sale deed is illegal, invalid, void and not binding on the plaintiff. He has to value the suit as per Section 31 of the Specific Relief Act and has to pay the court fee on the market value of the said property. Hence, the learned counsel made the submission that this legal aspect is not properly appreciated by the trial court and the trial court wrongly held that the plaintiff being not a party to the said sale deed he need not seek the cancellation of the instrument and valuation of the suit and payment of the court fee ad valorem under Section 24(d) of the Karnataka Court-fee and Suits Valuation Act, 1958 (for short "the Act") is proper and held issue No. 6 in the affirmative. Learned counsel submitted that this finding recorded by the trial court is not in accordance with law. In support of his contention, learned counsel appearing for the Writ Petitioners herein relied upon the decisions of the Hon''ble Supreme Court in the case of Sateedevi Vs. Prasanna and another reported in , AIR 2010 SC 2777, in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Others reported in , AIR 2010 SC 2807 and decision of this Court dated 20.2.2014 passed in W.P. No. 6612/12 (GM-CPC). Hence he submitted to allow the Writ Petition and to direct the plaintiff to pay the court fee as per Section 31 of the Specific Relief Act, 1963 on the market value of the period.

Per contra, learned counsel appearing for the respondent/plaintiff submitted that the plaintiff is not a party to the said sale deed Hence he need not seek cancellation of the instrument he has sought only declaration that sale deed is a nullity, void and not binding on the plaintiff. Hence counsel submitted as he was not a party to the said instrument he need not pay the court fee on the market value and whatever the court fee he has paid it is sufficient as held by the trial court. Hence he submitted that there is no merit in the Writ Petition and same is to be rejected. In support of his contention, learned counsel appearing for the respondent/plaintiff also relied upon , AIR 2010 SC 2807. The relevant paragraph reads thus:

Where the executant of a deed wants it to be annulled, 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 it is not binding on him. The difference 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'' and ''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 or 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 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. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.

The learned counsel also relied upon decision of Madhya Pradesh High Court in the case of Baijnath Singh and another Vs. Jagdish and others reported in , AIR 2014 MP 141 and draw the attention of this Court to relevant paragraphs at 6 and 7 which read as under:

"6. Thus, in the light of aforesaid judgment, if the person non-executant seeking declaration of a sale deed as null and void and the same is not binding on him, he is only required to pay the fix court fees whereas, in a case where a person/executant to the sale deed seeks cancellation of the sale deed as null and void, he is required to pay ad valorem court fees.

Having considered the judgments impugned and the record of the case, this Court is of the view that as regard merits of the claim of the plaintiff, both the Courts have recorded concurrent findings of fact which do not warrant any interference. As regards pecuniary jurisdiction, the first appellate Court has rightly reversed the findings of the trial Court. Admittedly, the plaintiffs are not party to the alleged sale deed dated 13/3/1995. They merely sought a declaration that sale deed be declared as null and void and therefore, in the light of law laid down by Hon. Supreme Court in Suhrid Singh, (, AIR 2010 SC 2807) (supra), the plaintiffs were required to pay only the fix courts fees and therefore, the trial Court was having pecuniary jurisdiction to try the suit. Resultantly, the decree passed by the first appellate Court to the effect that defendants were restrained them dispossessing the plaintiffs is held to be fully justified. Accordingly, substantial question of law is answered in affirmative. Instant appeal at the instance of defendants dismissed being sans merits."

Hence it is his contention that there is no merit in the Writ Petition and the same is to be rejected.

I have perused the grounds urged in the Writ Petition, order passed by the trial court on the court fee issue No. 6 so also I have perused the copy of the plaint, written statement produced by the writ petitioners in support of their contention and the issues framed by the trial court i.e., Issue No. 6 which is referred above is with regard to valuation of the suit and payment of court fee. Looking to the single bench decision of this court dated 20.2.2014 passed in the said Writ Petition, this court held in paragraph 2 of the said order as under:

"2. The plaintiff contends that declaration sought is that the sale deed is null and void and it is not binding on him, as he is not a party to the proceedings. In law, it makes no difference whether the person, who is seeking declaration or cancellation is a party to the transaction or not. The Court fee is payable on the valuation and Therefore, the trial court was justified in directing the plaintiff to pay Court fee under Section 38 of the Karnataka Court-Fees and Suits Valuation Act, 1958. No merits. Dismissed."

In another decision of the Hon''ble Supreme Court, it is held by Their Lordships that suit for declaration that sale deed executed by the plaintiffs father is null and void.

I have also perused decisions relied upon by the learned counsel appearing for respondent/plaintiff which are referred above. In the decision , AIR 2010 SC 2777, their Lordships laid proposition as under:

"(C) Kerala Court-fees and Suits Valuation Act (10 of 1970), S. 40, S. 7 - Court fee -Determination of market value of property - Suit for cancellation of document which creates any right, title or interest in immovable property - Value of property for which document was executed, and not, its market value, is relevant for purpose of Court fee."

and in another decision of Madhya Pradesh High Court at paragraphs 6 and 7, it is held as supra.

Looking to the principles enunciated in said decisions and also the facts and circumstances in the case on hand, the decisions relied upon by the learned counsel appearing for respondent/plaintiff, the fact goes to show that it was a suit for declaration that the sale deed executed by plaintiffs father is null and void and for joint possession. It is for cancellation of the sale deed. Therefore in the said decision considering this factual aspect of the matter, their lordships have held that court fee payable is computable under Section 7(4)(c) of the Act. But in the case on hand, it is not the case of the parties that one of the member of the joint family has excluded the sale deed. It is challenged by the other member of the joint family where he need not adopt cancellation of the said instrument and he can show that said alienation is not binding on him. Looking to the facts and circumstances of the case on hand, though it is the contention of the learned counsel for the respondent/plaintiff that though he was not a party to the sale deed alleged to have been executed, but as per the principles enunciated by the Hon''ble Supreme Court as well as this Court in the decisions which are referred supra, I am also of the opinion that Lower Court is not correct to hold issue No. 6 in the affirmative that the valuation of the suit property and payment of court fee is properly done. The plaintiff has to value the suit as per Section 38 of the Act and he has to pay court fee on the market value of the suit property. Accordingly, the order passed by Trial Court which is challenged in this Writ Petition is hereby set aside. The plaintiff is directed to value the suit under Section 38 of the Act to pay requisite court fee.

With this Writ Petition is disposed of.