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2013 DIGILAW 353 (KER)

Cicily Mathew v. A. P. George

2013-04-08

N.K.BALAKRISHNAN

body2013
Judgment : 1. Ext.P5 order is challenged in this petition filed under Article 227 of The Constitution of India. A petition was filed under Sec.276 of the Indian Succession Act for grant of Letters of Administration in respect of the Will allegedly executed by late Paily. Petitioners herein entered caveat and filed objections disputing the genuineness of the Will and as such the trial court converted the petition into a regular suit as provided under Sec.295 of Indian Succession Act. Petitioners herein contended that after the conversion of the petition into suit, it was not properly valued. Respondents on the other hand contended that after conversion, the suit has to be treated as a suit for declaration falling under Sec.25 of the Kerala Court Fees and Suits Valuation Act and accordingly a valuation statement was filed by the respondents (plaintiffs) in the suit) under Sec.7(2) and 7(3) of the said Act and the said valuation has to be accepted and that court fee is payable accordingly and not based on the market value as contended by the defendants. 2. Sec. 7 of the Act reads thus: “7. Determination of market value.- (1) save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.” (2) The market value of agricultural land in suits falling under Section 25(a). 25(b). 27 (a). 29. 30. 37(1). 37(3). 38. 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. (3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. (3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. (3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. (4) “Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property.” 3. There is no dispute regarding the fact that since the caveat was entered and the application was registered as suit, the court fee is to be paid as governed by the proviso to Article 11(k) and as per the said proviso, the court fee on half the scale of fee prescribed in Article 1 of Schedule 1 on the market value of the estate, less the fee already paid on the application, should be paid. It was for computation of the fee so payable the valuation statement (Ext.P2) was filed. If the computation of the valuation statement as provided under Secs.7(2) and 7(3) is accepted, then the court fee payable by the plaintiff as determined by the court below may be correct. 4. But the learned counsel for the petitioners/defendants submits that the market value has to be determined as provided under Sec.7(3A) of the Kerala Court Fees and Suits Valuation Act as amended in 1990. (The amendment came into force with effect from 05.12.1990). After the amendment, the market value of the agricultural lands alone, in suits falling in Secs.25(a) 25(b) etc, shall be deemed to be ten times the annual gross profits, minus the assessment if any made to the Government. In other words, if the property in question is not an agricultural land, the computation cannot be had at the rate of ten times the annual gross profit of such land. Similarly, since the building situated in the plaint schedule property is stated to be a residential house, the contention that the value of the building shall be computed at ten times its rental value cannot be accepted. Similarly, since the building situated in the plaint schedule property is stated to be a residential house, the contention that the value of the building shall be computed at ten times its rental value cannot be accepted. If so, the market value of the building as on the date of the suit also has to be shown. 5. As noted earlier, Sub Sec.3(A) makes it clear that the market value of any property other than agricultural land shall be the value it will fetch on the date of institution of the suit. Similarly, the value of the building shall also be the value it will fetch on the date of institution of the suit. 6. The learned counsel for the petitioners would submit that in fact a suit for partition was filed by the petitioners in respect of the very same property, where the market value of the landed property and the building was shown and so there would be no difficulty to find what exactly is the market value of the property. There is nothing to show that the plaint schedule property is an agricultural land. As such the computation of market value under Sec.7(2), as if it is an agricultural land, cannot be accepted. Whether valuation based on the rental value is correct or not is to be examined by the court below, since no material is placed before this court to find as to what exactly was the rental value of the building and whether said valuation is acceptable or not. In the result, this O.P.(C) is allowed. The impugned order is set aside. Plaintiffs will furnish fresh valuation statement before that court, in the light of what is stated above. The court below will, after conducting enquiry regarding the same, decide the matter afresh.