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2013 DIGILAW 27 (HP)

Rachna Sharma v. Meena Kumari Sharma

2013-01-04

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh , Judge This petition under Article 227 of the Constitution of India has been filed against order dated 3.10.2012 passed by learned Civil Judge (Senior Division), Court No.1 Kasauli in CMA No. 114/06 of 2012 in Case No. 122/1 of 2010. 2. The facts, in brief, are that respondent has filed a suit for declaration against the petitioner that respondent is the sole successor of deceased Rajinder Prakash Sharma co-owner in possession of the suit land to the extent of 1/3rd share land more specifically described in the plaint situate in mauja Garkhal, Hadbast No. 713. Rajinder Prakash Sharma was also co-owner in joint possession of land measuring 23 bighas 18 biswas and building constructed thereupon which respondent has succeeded after the death of Rajinder Prakash Sharma being his daughter and mutation No. 2711 dated 7.11.2007 of mauja Kasauli and mutation No. 869 dated 8.2.2008 of mauja Garkhal and showing the petitioner as absolute owner in possession of share of deceased Rajinder Prakash Sharma are also wrong, illegal, null and void and not binding upon the respondent. As a consequential relief, the decree for permanent prohibitory injunction has also been prayed by the respondent. 3. Rajinder Prakash Sharma was also having some buildings in the Cantonment area at Kasauli known as ‘Cart Road, Arhat Bazar, Kasauli to the extent of 1/3rd share. The respondent is the only daughter and is sole legal heir of deceased Rajinder Prakash Sharma, who died intestate on 16.10.2007. Rajinder Prakash Sharma never executed any Will during his life time. 4. The petitioner after the death of Rajinder Prakash Sharma in collusion with her relatives and other persons forged and fabricated a false and fictitious Will of Rajinder Prakash Sharma to deprive the respondent from her right of succession. The petitioner after the death of Rajinder Prakash Sharma got mutation No. 2711 dated 7.11.2007 and mutation No. 869 dated 8.2.2008 sanctioned in her favour on the basis of alleged Will of Rajinder Prakash Sharma. The respondent is co-owner in joint possession of the suit land to the extent of 1/3rd share including super-structure existing thereupon. 5. The respondent had challenged the mutations before Sub Divisional Collector, Solan, which appeals were dismissed wrongly and illegally. The respondent has challenged the orders of Sub Divisional Collector before Commissioner in Revision Petitions which are pending. On these allegations, the respondent has filed the suit. 6. 5. The respondent had challenged the mutations before Sub Divisional Collector, Solan, which appeals were dismissed wrongly and illegally. The respondent has challenged the orders of Sub Divisional Collector before Commissioner in Revision Petitions which are pending. On these allegations, the respondent has filed the suit. 6. The petitioner contested the suit by filing written statement in which preliminary objections of locus-standi, improper valuation for purpose of court fee, jurisdiction, estoppel, limitation and the respondent has not approached the Court with clean hands have been taken. It has been stated that respondent is not the daughter of Rajinder Prakash Sharma S/o Sh. Mahesh Dutt. Rajinder Prakash Sharma S/o Mahesh Dutt has executed a Will in favour of the petitioner. On the basis of the Will mutations of the property of Rajinder Prakash Sharma have been attested in favour of the petitioner. The respondent is not an heir of Rajinder Prakash Sharma S/o Mahesh Dutt. The respondent is a stranger to the suit property and she is not in possession of any part of the suit property, which is owned and possessed by the petitioner. 7. The respondent filed replication to the written statement of the petitioner and pleaded that respondent was born from the wedlock of Rajinder Prakash and Ram Dulari. Rajinder Prakash Sharma manipulated some documents in order to avoid his conviction in the case at Kharar. The respondent denied the case put forth in the written statement by the petitioner and reiterated her stand taken in the plaint. 8. The petitioner moved an application under Order 7 Rule 11 read with Section 151 Code of Civil Procedure (for short Code) and Section 7 of the H.P.Court Fees Act, 1968 (for short Act) praying a direction to the respondent to make the good deficiency in court fee by affixing additional court fee in the sum of Rs. 2,78,387/- within time frame, failing which the plaint may be rejected. It has been stated in the application that the respondent is stranger to the suit nor is in possession of any piece of suit property and same being owned and possessed by the petitioner in a legal and valid manner. The plaint is required to be properly valued and stamped on ad-volarum basis on the market value of the suit property which includes urban built up property and built up structure. The plaint is required to be properly valued and stamped on ad-volarum basis on the market value of the suit property which includes urban built up property and built up structure. The 1/3rd share of Rajinder Prakash Sharma in the suit property comes to a minimum value of Rs.2,75,92,810.23 approximately. 9. The respondent filed the reply to the application of petitioner under Order 7 Rule 11 (d) read with Section 151 of the Code and Section 7 of the Act. It has been stated that respondent in the suit has claimed that she has become co-owner in joint possession of the entire estate left behind by Rajinder Prakash Sharma and mutations sanctioned in favour of the petitioner on the strength of alleged forged and fabricated Will are wrong, illegal, null and void and are not binding upon the right, title and interest of the respondent. It has been denied that the respondent is not in possession of the suit property and that petitioner is in exclusive possession of the suit land. The suit has been properly valued for the purpose of court fee and jurisdiction. 10. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for respondent has submitted that respondent has moved an application under Order 6 Rule 17 CPC for seeking relief that alleged Will dated 30.5.2007 is not a genuine document and has never been executed by Rajinder Prakash Sharma. The record shows that the petitioner moved an application under Order 7 Rule 11 CPC before framing of issues. The Order 7 Rule 11 of the Code provides as under:- “11. Rejection of plaint. The record shows that the petitioner moved an application under Order 7 Rule 11 CPC before framing of issues. The Order 7 Rule 11 of the Code provides as under:- “11. Rejection of plaint. – The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 11. In substance, the plea of the petitioner is that the suit has not been properly valued by the respondent for the purpose of court fee. The learned counsel for the petitioner has submitted that some of the suit property is in urban area and built up structure, therefore, the suit is governed by Section 7 (iv) (c ) (v) (e) of the Act. The learned counsel for the petitioner has relied N.V.Srinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs and others (2005) 5 SCC 548 , wherein the Supreme Court found that the plaint was cleverly drafted with a view to get over the bar of limitation and payment of ad valorem court fee. The learned counsel for the petitioner has relied N.V.Srinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs and others (2005) 5 SCC 548 , wherein the Supreme Court found that the plaint was cleverly drafted with a view to get over the bar of limitation and payment of ad valorem court fee. The Supreme Court held the plaint was rightly held to be liable to rejection if not on the alleged ground that it does not disclosure ‘cause of action’ but on the ground covered by clause (d) of Rule 11 of Order 7 of the Code of Civil Procedure namely that ‘suit appears from the statement in the plaint to be clearly barred by limitation’. 12. In Bhagwat Parshad vs. Mukat Lal and others 1985 Sim.L.C. 175, it has been held the substance of the prayer clause is that the plaintiff besides seeking the relief of declaration and injunction has also sought further relief that the sale made in favour of transferee-defendants be declared as null and void etc. In that suit the prayer for declaration that sale deed dated 4.7.1980 is null, void and illegal and is inoperative against the rights of the plaintiff and the same is not binding on the plaintiff was made. Once it is found that the suit is for declaration with consequential relief, the court fee has to be paid as prescribed under Section 7 (iv) (c ) read with proviso at the end and paragraph (v) of Section 7 of the Act. The plaintiff has to pay court fee on the basis of the market value of the property in dispute. The property in dispute is a house and accordingly the court fee is to be paid on its market value. 13. In Kanwar Partap Singh vs. Minakshi Devi and others 1989 (1) Sim. L.C. 107, the plaintiff has prayed for a decree of declaration that mutation showing the plaintiff and defendants as owners of the suit property in equal shares is illegal and without jurisdiction with consequential relief restraining the defendants from interfering with his possession or taking forcible possession of the suit property or transferring or alienating any portion there of through a decree of prohibitory injunction. It has been held that law pertaining to the computation of fees payable in suits for a declaratory decree and consequential relief is contained in Section 7 (iv) (c) of the Court Fees Act. According to the above provision the plaintiff is required to state the amount at which he values the relief sought in all such suits. The court fee is to be paid in accordance with the amount at which the relief sought has been thus valued in the plaint. However, the second proviso to Section 7 (iv) states that in suits for declaratory decree and consequential relief where the relief sought 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 paragraph (v) of this Section. The perusal of para (v) shows that such valuation has to be the market value of the property. In a nut-shell, therefore, court fee on a suit praying for a declaratory decree with consequential relief with respect to a house has to be paid on the market value of that house. 14. In Hushan Kaushal and others vs. Bal Raj and others 2001 (2) Sim. L.C. 223, the petitioners had filed a suit for partition of the immovable properties left by the deceased Ram Rakha claiming 5/8th share therein. They also sought rendition of accounts of the firm Messrs Ram Rakha Mall Kaushal and Sons by averring that such firm was also a joint Hindu family concern of which deceased Ram Rakha was the Karta and since after his death, respondent No.1 is the Karta. In that suit, several shops, houses and plots constituted the suit property. It was held that as many as nine immoveable properties, as detailed in para 3 of the plaint, were involved in that case. The plaintiffs admitted that they were in possession of only one property. The plaintiffs did not assert even their constructive possession over the properties other than the one in their possession. On those facts, it was held that the plaintiffs were not in possession of all the properties involved in the suit, Section 7 (iv) (b) of the Act, would be applicable. The plaintiffs are required to pay ad valorem court fee on the value of the shares claimed by them in the suit properties. 15. On those facts, it was held that the plaintiffs were not in possession of all the properties involved in the suit, Section 7 (iv) (b) of the Act, would be applicable. The plaintiffs are required to pay ad valorem court fee on the value of the shares claimed by them in the suit properties. 15. In Smt. Sunita Devi vs. Smt. Sangita Kumari and others 2001 (3) Sim. L.C. 385, it has been held that paragraph (v) of Section 5 of the Himachal Pradesh Court Fees Act governs the valuation of the suit for the purpose of court fee in respect of houses and gardens, clause (e) of para-5 of Section 7 stipulates that suits for possession of the houses and gardens shall be valued for the purposes of court fee in accordance with the market value of such houses or gardens. 16. The counsel on both sides have relied Suhrid Singh @ Sardool Singh vs. Randhir Singh and others 2010 (2) SLJ (SC) 749 where the plaint contained several elaborate prayers and summarized by the Supreme Court as follows: “(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof; (ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third respondent, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est “qua the coparcenary”; (iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S. Rajinder Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the “co-parcenary”, as they were not for legal necessity or for benefit of the family; and (iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.” The Supreme Court noticed Section 7 (iv) (c ) of the Court Fees Act, 1870 as amended in Punjab, which provides as under:- “7. Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (iv) in suits – x x x x (c ) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought: Provided that minimum court-fee in each shall be thirteen rupees. Provided further that in suits coming under sub-clause (c), in case where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the matter provided for by clause (v) of this Section.” The Supreme Court held : “The Second proviso to section 7 (iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.” 17. The learned counsel for the respondent has relied Kamaleshwar Kishore Singh vs. Paras Nath Singh and others AIR 2002 SC 233 where it has been held that it is well settled that court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court fee in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the court fees payable on the plaint that the averments made therein by the plaintiff are correct. The court shall begin with an assumption, for the purpose of determining the court fees payable on the plaint that the averments made therein by the plaintiff are correct. It is the substance of the relief sought for and not the form which will be determinative of the valuation of the court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. 18. The Section 7 (iv) (c), (v) (a) and (e) of the Act is as follows:- “7. Computation of fees payable in certain suits- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- (iv) in suits (a) & (b) xx xx xx (c) for a declaratory decree and consequential relief; to obtain a declaratory decree or order, where consequential relief is prayed ; (d) to (e) xx xx xx (f) for accounts; for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought; Provided that the minimum court-fee in each case shall be thirteen rupees: Provided further that in suit coming under subclause (c), in case where the relief sought 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 paragraph (v) of this section. (v) for possession of land, houses and gardens; In suits for the possession of land houses and gardens-according to the value of the subject matter and such value shall be deemed to be- where the subject matter is land, and – (a) Where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government; or forms part of such an estate and is recorded in the Collector’s register as separately assessed with such revenue, and such revenue is permanently settled- ten times the revenue so payable; (b) to (d) xx xx xx (e) for houses and gardens; Where the subject matter is house or garden –according to the market value of the house or garden.” 19. The respondent has claimed 1/3rd share of Rajinder Prakash Sharma being his daughter in the plaint. The respondent has claimed 1/3rd share of Rajinder Prakash Sharma being his daughter in the plaint. The plaintiff while referring to Rajinder Prakash Sharma has pleaded that he was also co-owner in joint possession of land comprised in Khata/Khatauni No.217/352 and 353 measuring 23 bighas 18 biswas and building constructed thereupon in Mauja Kasauli. He was also having some buildings in the Cantonment Board area at Kasauli known as Cart Road Arhat Bazar, Kasauli to the extent of 1/3rd share. The respondent has pleaded that she is co-owner in joint possession to the extent of 1/3rd share including super-structure existing thereupon. In the plaint, the plaintiff has pleaded that valuation of the suit for the purpose of court fee and jurisdiction is assessed at Rs. 195 for the purpose of declaration upon which court fee of Rs. 100/- has been affixed on the plaint, further for relief of permanent injunction, the suit is assessed at Rs. 130/- upon which court fee of Rs. 23/- has been affixed on the plaint. The respondent has prayed declaration that she is sole successor of deceased Rajinder Prakash Sharma and is co-owner in possession of the suit land to the extent of 1/3rd share of the land described in the relief part of the plaint. The mutation No. 2711 dated 7.11.2007 is wrong and illegal. She has also prayed consequential relief of permanent injunction. 20. In M/s Commercial Aviation and Travel Company and others vs. Vimla Pannalal (1988) 3 SCC 423 , the Supreme Court has held, Order 7 Rule 11 (b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined in the court. If the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, Order 7 Rule 11 (b) will not be applicable. The Supreme Court further held if there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, is entitled to interfere under Order 7 Rule 11 (b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. The respondent has prayed the relief of possession by praying ‘the plaintiff is the sole successor of deceased Rajinder Prakash Sharma and is co-owner in possession of the suit land to the extent of 1/3rd share’. The respondent has valued the suit for the purpose of declaration and consequential relief of permanent injunction. The respondent has not valued the suit for the purpose of possession. 21. In Tara Devi vs. Sri Thakur Radha Krishna Maharaj and another (1987) 4 SCC 69 , it has been held in a suit for declaration with consequential relief falling under Section 7 (iv) (c ) of the Act, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same. 22. In the impugned order the learned Civil Judge has observed that the suit land comprised in khata/ khatauni No. 54/103 is assessed to land revenue which is Rs. 4.84 and in khata/ khatauni No.60/12 to Rs. 0.31 paise and after noticing Section 7 (v) (a) of the Act has held that respondent is not required to pay ad valorem court fee on the suit land. The learned Civil Judge has not considered Section 7 (v) (e) of the Act. The Section 7 (v) (e) of the Act provides where the subject matter is house or garden then according to the market value of the house or garden. 23. In the present case the respondent has challenged the Will of Rajinder Prakash Sharma and claimed herself to be his daughter. The suit property consists of land and built up structure. In the plaint, it has not been pleaded what is the land revenue of the landed property and what is the market value of the built up structure. 23. In the present case the respondent has challenged the Will of Rajinder Prakash Sharma and claimed herself to be his daughter. The suit property consists of land and built up structure. In the plaint, it has not been pleaded what is the land revenue of the landed property and what is the market value of the built up structure. In Suhrid Singh @ Sardool Singh (supra) while considering section 7(iv) (c ) of the Court Fees Act, 1870, as amended in Punjab, which in substance is similar to the Act, the Supreme Court has held that where the relief is in regard to house, court fee shall be on the market value of the house, under clause (e) thereof. The respondent in the relief has prayed “co-owner in possession”. The second proviso to section 7 (iv) of the Act provides, in suits coming in sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the matter provided for by clause (v) of this section. Sub-clause (e) of section 7 (v) provides where the subject matter is house or garden - according to the market value of the house or garden. 24. In view of pleaded case of the respondent and relief claimed the suit for the purpose of court fee so far as built up structure is concerned, is required to be valued in accordance with section 7 (iv) (c) (v) (e) of the Act on the market value of the built up structure. The respondent has not valued the suit for the purpose of court fee in accordance with section 7(iv) (c) (v) (e). The learned Civil Judge has erred in observing that respondent has affixed the requisite fee on the plaint. The impugned order is not sustainable. 25. At this stage, except assertions of petitioner in the application, under Order 7 Rule 11 read with section 151 CPC and section 7 of the Act, there is no material to ascertain the market value of the built up structures pleaded in the plaint. In Kamaleshwar Kishore Singh (supra), it has been held that defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. In Kamaleshwar Kishore Singh (supra), it has been held that defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. In M/s Commercial Aviation and Travel Company (supra), the Supreme Court has held that if the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and consequently, order 7 Rule 11 (b) will not be applicable. In these circumstances, the court is not in a position to determine the correct valuation of the built up structure referred in the plaint, and, therefore, plaint cannot be rejected under order 7 Rule 11 of the Code for want of correct valuation for the purpose of court fee. The trial court, therefore, while framing issues shall also frame the issue regarding the valuation of the suit property for the purpose of court fee and decide the issue in accordance with law after giving opportunity to the parties to lead evidence. 26. In view of above, the petition is allowed. The order dated 3.10.2012 passed by learned Civil Judge (Senior Division), Court No.1, Kasauli in CMA No. 114/06 of 2012 in Case No. 122/1 of 2010 is set-aside. The trial court is directed that while framing the issues, to frame the issue of valuation of suit for the purpose of court fee also and decide the said issue in accordance with law. The parties through their counsel are directed to appear before the trial court on 15.1.2013. The record be sent to the trial court immediately so as to reach well before the date fixed. CMP No. 1592 of 2012 is also disposed of in view of disposal of the main petition.