Sathyanarayan vs Suryoji Rao

N. Kumar, J.—The plaintiffs have preferred these writ petitions challenging the order passed by the Trial Court holding the Court fee paid on the plaint is insufficient and directing the plaintiffs to value the suit u/s 38 of the Court Fee and Suit Valuation Act and to pay the deficit Court fee. Further, it also passed an order holding that the market value of the property as on the date of the suit is Rs. 25,00,000/-. Therefore, the Court fee has to be paid on the said amount is a sum of Rs. 1,29,625/-. The suit is filed by the three plaintiffs. The first plaintiff has executed two gift deeds in favour of the defendants. Plaintiffs 2 and 3 are her children. Their case was that the gift deed executed by the first plaintiff is voidable as it was obtained by fraud. Plaintiffs 2 and 3 are seeking the relief of partition and separate possession. They paid a sum of Rs. 750/- as Court fee on the memorandum of plaint belonging to the suit u/s 35(2) read with Section 24(d) of Karnataka Court Fee and Suit Valuation Act.

The defendants contend that, the suit is not properly valued and the Court fee paid is not sufficient. Issue No. 7 was framed in this regard. The Trial Court after hearing both the parties held that, the first plaintiff executed the gift deed and when she wanted to get over the said document, it is only by a decree of cancellation and therefore, the suit is to be valued u/s 38 of the Act. The partition relief is auxiliary to the same. Even if the first plaintiff is dead, defendants 1 and 2 being the LRs, they have to pay the requisite Court fee before prosecuting the suit and therefore, passed the impugned order. Aggrieved by the same, plaintiffs 2 and 3 are before this Court.

When the executant of the gift deed is dead, it cannot be said that, she is prosecuting the suit. Though plaintiffs 2 and 3 and also defendants are the legal heirs of first plaintiff, in the suit they are ascertaining their independent rights. Plaintiffs 2 and 3 contend that, they are the co-owners of said property, therefore, they are entitled to the share and their mother had no right to make the gift It is settled law that, if the executant is not the person who is challenging the alienation and contends such an alienation is not binding, then it does not amount to suit for cancellation of the instrument. It is also equally well settled that, in a suit for partition if alienation by other members of the family are challenged, it is not necessary to seek the relief of cancellation or even declaration. If the plaintiff''s right to partition is established and if the plaintiff is not the party to the alienation, the plaintiff has to be given his due share. The aforesaid alienation would not come in the way and cannot affect the right of the plaintiff. In which event the suit is to be valued for partition.

The Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, , had an occasion to consider this aspect and it was held "if the prayer is for declaration that the deeds do not bind the "co-parcenary" and for joint possession, the plaintiff in the suit was not the executant of the sale deeds, the court fee was computable as if it is a suit for partition. It is only to the extent to get over the said document, then it amounts to suit for cancellation of the instrument.

The Division Bench of this Court in the case of Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, held that, ''in a suit for partition by Hindu coparcener, it is not necessary for him to seek the setting aside of the sale, it is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which fall to his share.''

In the light of the aforesaid judgments, the suit as it stands is prosecuted by plaintiffs 2 and 3 who are not parties to the gift deed and whose claim to a definite share in the schedule property is upheld to that extent, the gift deed do not bind their rights. Therefore, the Court fee paid u/s 35(2) read with Section 24(d) is proper in so far as plaintiffs 2 and 3 are concerned who are now prosecuting the matter.

In these circumstances, the impugned order passed by the Trial Court cannot be sustained. Hence, I pass the following:

ORDER

The writ petition is allowed. The impugned order passed by the Trial Court is hereby set aside. It is held that the suit is properly valued in so far as plaintiffs 2 and 3 are concerned.