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2010 DIGILAW 1079 (KAR)

Anandamma v. Sharada @ Munithayamma

2010-10-18

ANAND BYRAREDDY

body2010
Judgment Heard the learned counsel for the petitioners and the respondent and the learned Government Advocate. 2. The respondent herein had filed a suit in O.S.2516/2007 against the petitioners and seven others, who are not made parties to the present petition, as according to the petitioners, they are not necessary parties. The suit was for the relief of cancellation of two sale deeds, both dated 19.7.1995 executed by the respondent and another in favour of petitioner no.1 herein. The suit was brought against the petitioners as well as seven others who were said to be the tenants of several tenements in the property. However, those tenants are not made parties, herein by the petitioners, as according to the petitioners they are not necessary parties in deciding this petition. The suit filed by the respondent was valued at Rs.4,40,000/- for purposes of court fee and a court fee of Rs.29,735/- was paid on the plaint. The petitioners herein had contested the suit and had contended that the court fee paid was insufficient. Issue no.7 was framed relating to the sufficiency of the court fee paid, which was treated as a preliminary issue and the trial court, by its order dated 7.9.2009 held that the court fee paid was sufficient. It is that order which is sought to be challenged in the present petition. 3. The learned Counsel for the petitioners would submit that the suit was filed on 23.3.2007 challenging the sale deeds dated 19.7.1995. The value of the properties indicated in the sale deeds was at Rs.2,22,000/-, but as on the date of filing of the suit, as per the guide-line value fixed by the State Government, for every square foot of land in the vicinity of the suit property, was at Rs.500/-. If the value of land is calculated at that rate, then the market value of the property would be Rs.23,62,000/- and the court fee payable would be Rs.1,11,073/-. It is pointed out that the learned trial Judge however, while evaluating the market value of the suit property has not taken market value of the property as on the date of the institution of the suit and has proceeded on the value set-forth in the instruments which were of the year 1995. Therefore, there is an illegal finding on issue No.7. Therefore, there is an illegal finding on issue No.7. It is also pointed out that as on 19.4.2007, the market value of the very property has been revised and it was fixed at Rs.1,100/- per square foot. If this basis is adopted, the market value would escalate even further and consequently, the court fee. It is on these contentions, that the learned counsel would urge that since the suit was filed in the year 2007, it was the value of the property as on that date which was material for computing the court fees. The learned counsel would draw attention to Section 38 of the Karnataka Court fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the 1958 Act’ for brevity), particularly, with reference to Explanation (2) thereto, which reads as follows:- “38. Suits 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 to her 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. (2) if the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less. Explanation 1: A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section. Explanation 1: A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section. Explanation 2: In a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property.” The counsel would submit that in terms of Section 7 of the 1958 Act, it is the market value of the land as on the date of the presentation of the plaint which is material under Sub-section (1), and since the prayer is for cancellation of the sale deed and recovery of possession of the property, the same would fall under Section 24, which provides that, when a prayer is for declaration and for possession of the property, the fee shall be computed on the market value of the property and hence, the trial court was in error in computing the market value as appearing in the instruments and not the market value as on the date of the presentation of the plaint. Reliance is placed on a Division Bench judgment in the case of R. Rangiah vs. Thimma Setty, 1963 (1) My.LJ 67, which has been followed in a recent judgment of a learned Single Judge reported in the case of Damegunta Rajeshwaramma vs. Jayalakshmamma, ILR 2010 Kar. 2288. 4. While the learned counsel for the respondent would contend that Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958, though appears to be in pari materia with Section 4(iv)A of the Mysore Court Fees Act 1900, (hereinafter referred to as ‘the 1900 Act; for brevity), Explanation-(2) to Section would make all the difference. Since it is only in respect of suits for cancellation of a decree and possession of any property, that the fee shall be computed as in a suit for possession of such property. It would not bring within its ken or scope, a suit for cancellation of a document as in the present case. Therefore, it is only the value indicated in the document which is relevant for purposes of payment of court fees. In this regard, he would place reliance on a decision of the Supreme Court in the case of Sathee Devi vs. Prasanna, 2010 AIR SCW 3754 and other authorities which may not be relevant for the determination of the issue herein. 5. In this regard, he would place reliance on a decision of the Supreme Court in the case of Sathee Devi vs. Prasanna, 2010 AIR SCW 3754 and other authorities which may not be relevant for the determination of the issue herein. 5. The point that would arise for consideration is, whether the plaintiff was required to pay the court fees on the market value of the property, which was the subject matter of the sale deeds, which was challenged in the suit and cancellation of the same, being sought for. The prayer in the plaint, which is annexed to the writ petition, seeks a decree declaring the sale deeds in question as having been obtained by fraud, and consequently for cancellation of the sale and as a further consequential relief, to direct the defendants to hand over possession of the scheduled property to the plaintiff. The property is described as a portion of survey no.55/1 of Kacharkanahalli, Bangalore North Taluk, measuring 8 guntas. It is the allegation in the plaint that the defendants had, by deceit put up construction over the property and had let out tenements to other defendants who are parties to the suit. But, for all purposes, the plaintiff has chosen to treat the suit property as agricultural land when it was bought as such. Section 38 of the 1958 Act specifically provides that in a suit for cancellation of a document which operates to create a title in the immovable property and lays down that the fee shall be computed on the value of the property, as indicated in the document. And by way of explanation, it is expressed that insofar as a suit for cancellation of a decree and possession of any property is concerned, the fee shall be computed as in a suit for possession of such property, thereby by implication, a suit for cancellation of a document which is conjointly referred to along with a suit for cancellation of a decree in sub-section (1) is sought to be excluded. This is the apparent indication from a plaint reading of the Section. Under Section 24, in a suit for declaration and possession of immovable property, it is certainly the market value of the property, on which the court fee is required to be paid. This is the apparent indication from a plaint reading of the Section. Under Section 24, in a suit for declaration and possession of immovable property, it is certainly the market value of the property, on which the court fee is required to be paid. Therefore, the answer would be that in a suit for cancellation of the sale deeds, even though a consequential relief of possession is also sought, it is only under Section 38(1), that the court fee payable would have to be computed in view of Explanation-2 to the Section, excluding a suit for cancellation of a document, as being a suit for possession of such property, while specifying that a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property. Insofar as the judgment of a Division Bench of this court in the case of Rangiah vs. Thimma Setty, is concerned, the facts were as follows:- The Division Bench was dealing with a revision petition. The respondent was the plaintiff in the trial court, who had sued for cancellation of a deed of settlement executed by him and for partition and delivery of possession. He had valued the relief for cancellation at an amount which was specified in the deed of settlement. The defendants, who were the petitioners before the Division bench of this court, had raised an objection that the relief of cancellation had not been properly valued since the market value of the properties was much more than was reflected and it was urged that the suit was beyond the pecuniary jurisdiction of the trial court. That contention was accepted by the trial court and the plaint was directed to be returned. But, in an appeal preferred by the plaintiff to the appellate court, it was held that the suit had been properly valued. This was under challenge. The scope of Section 4(iv)A of the Mysore Court Fees Act, 1900, was relevant and was considered at length. But, in an appeal preferred by the plaintiff to the appellate court, it was held that the suit had been properly valued. This was under challenge. The scope of Section 4(iv)A of the Mysore Court Fees Act, 1900, was relevant and was considered at length. The relevant portion of the Section reads as follows:- “4.(iv) A. In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, according to 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 the value of the property for which the decree was passed or the other document 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.” It was opined by the Division Bench that Section 4(iv) A prescribed the court fee payable in respect of two categories of suits – What is first does is to require the payment of court fee in a suit brought for the cancellation of a decree on the amount specified in the decree if it was for money and on the value of the property for which the decree had been passed, if the decree sought to be cancelled is a decree for property. It next provided that if the suit is brought for the cancellation of a document, the court fee is payable on the value of the property to which the document relates. The Division Bench held that the word ‘value’ occurring in the first paragraphs would have to be understood as the market value, if Paragraph – 2 and 3 did not exist in Section 4(iv)A. Therefore, if the word ‘value’ occurring in the first paragraph means market value, then it should also be understood as such, with reference to the words ‘value’ appearing in Paragraphs 2 and 3. The court further reasoned that the Section does not merely provide for cancellation of a document executed for a specified consideration such as a sale deed, but also provided for payment of court fee even in suits brought for cancellation of other documents such as a sale deed, but also provided for payment of court fee even in suits brought for cancellation of other documents such as a deed of settlement, a gift deed, or a trust deed. In the latter category of cases, it would not be appropriate to regard those documents as executed for a consideration or a specified amount and those cases would not be cases in which there would be any value for which the document is executed. It was thus concluded that, what is relevant for the purpose of Section 4(iv)A is not the value of the property specified in the document, but its real and actual value when the suit is brought. It is on that value that the court fee has to be paid if the suit is for cancellation of a document recording a transaction involving such property. The argument canvassed that the Stamp Act required a person presenting a document for registration, to indicate the value of the property to which the document related, it was also provided that even in a deed of settlement, the value of the property involved would have indicated the market value, was negated on the footing that the relevant article in the Schedule to the Stamp Act meant the market value and therefore, there was consistency in holding that the expression “value” occurring in Section 4(iv)A could only mean the market value. It is on this reasoning and going by the letter of Section 4(iv)A, that the Division Bench had allowed the revision petition. That judgment was followed by a learned Single Judge of this court in Damegunta Rajeshwaramma, supra, Significantly, the learned Single Judge while relying upon the Division Bench judgment and having extracted Section 38 of the 1958 Act, the Explanations to Section 38 are omitted. This would make all the difference in applying the provision and the law as laid down with reference to Section 4(iv)A of the 1900 Act. This would make all the difference in applying the provision and the law as laid down with reference to Section 4(iv)A of the 1900 Act. Hence that section and the interpretation of the same may not be strictly applicable to Section 38 of the present Act owing to Explanation-2, which certainly excludes a suit for cancellation of a document being treated as a suit for recovery of possession of property. Accordingly, the writ petition is dismissed.