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2014 DIGILAW 2043 (RAJ)

Ratan Devi v. Gawra Devi

2014-12-08

ARUN BHANSALI

body2014
ORDER : ” This writ petition under Articles 226 and 227 of the Constitution of India is directed against order dated 19.09.2014 passed by the trial court, whereby, the application filed by the respondents under Section 11(2) & (3) of the Rajasthan Court-Fees and Suit Valuation Act, 1961 (' the Act of 1961” ) has been accepted and the plaintiff has been directed to pay court fees on the market value of the suit property. 2. The facts in brief may be noticed thus : the plaintiff-petitioner filed a suit for partition on 02.01.2012 claiming the suit property belonging to her ancestor Baldev Das, who died intestate prior to 1956; it was claimed that at the time of death of Baldev Das, he was survived by his son Ganga Das and grandson Raman Lal; Ganga Das also died intestate prior to 1956 and, therefore, the entire property vested in Raman Lal, who died intestate on 04.02.1976; at the time of his (Raman Lal) death, he was survived by two daughters including the petitioner and one adopted son Prem Narayan and, therefore, in the property all the three children had 1/3rd share; the defendant Nos. 1 to 4 were children of Prem Narayan Daga and defendant Nos. 5 to 11 were children of her sister Jiya Devi. 3. It is claimed that the suit was filed on 02.01.2012 and on 02.01.2012 itself at about 05:15 p.m. the defendant Nos. 1 to 4, children of Prem Narayan, transferred the suit property and, therefore, the petitioner filed amendment application, which was allowed and the suit was permitted to be amended and the transferrees were impleaded as defendant Nos. 13 to 20. 4. On behalf of the said defendant Nos. 13 to 20 an application under Section 11(2) & (3) of the Act of 1961 was filed, inter alia, indicating that the petitioner has sought declaration and court fees is payable under Section 24(a) & (b) of the Act of 1961 and the suit property has been valued at the time of registration at Rs. 1,23,86,262/-, on which, the plaintiff is required to pay the court fees. 5. A reply to the application was filed by the petitioner, inter alia, indicating that the transfer was made during pendency of the suit, which has necessitated the amendment and that the said aspect can be determined after framing of issues, the court fees paid is sufficient. 1,23,86,262/-, on which, the plaintiff is required to pay the court fees. 5. A reply to the application was filed by the petitioner, inter alia, indicating that the transfer was made during pendency of the suit, which has necessitated the amendment and that the said aspect can be determined after framing of issues, the court fees paid is sufficient. 6. The trial court after hearing the parties, came to the conclusion that from the perusal of the plaint, it was apparent that after amendment, the plaintiff has sought relief of cancellation of sale deed and declaration of right of preemption and has indicated the market value in para 10 of the plaint at Rs. 1,25,00,000/-; under Section 24(a) and (b) of the Act of 1961 the fees is to be calculated at the market value and, consequently, allowed the application and passed the directions as noticed hereinabove. 7. It is submitted by learned counsel for the petitioner that the trial court was not justified in deciding the application at the present stage and the issue could have been determined after evidence was led by the parties; it was further submitted that as the plaintiff” s case is not of exclusion, the provisions of Section 35(2) of the Act of 1961 would be applicable and Section 24(a) and (b) of the Act of 1961 has no application to the present case. 8. A plea was raised that the defendants have no right to raise the plea regarding the court fees, as it is only the State, which can raise such objection; further with reference to proviso to Section 6(1) of the Act of 1961, it was submitted that the relief sought is only ancillary to the main relief, which is partition and the market value can only be determined in terms of Section 7 of the Act of 1961. 9. Reliance was placed on Suhrid Singh alias Sardool Sing v. Randhir Singh & Ors. : (2010) 12 SCC 112 : ( AIR 2010 SC 2807 ), Smt. Meena alias Hema v. Smt. Komal Devi & Ors. : AIR 2004 RAJ 77 , Iqramuddin & Ors. v. Nizamuddin : AIR 1991 RAJ 42 , Daulatram v. State of Rajasthan : RLW 1967 401, Tara Devi v. Thakur Radha Krishna Maharaj : AIR 1987 SC 2085 , Khema & Ors. v. Shri Bhagwan & Ors. : AIR 2004 RAJ 77 , Iqramuddin & Ors. v. Nizamuddin : AIR 1991 RAJ 42 , Daulatram v. State of Rajasthan : RLW 1967 401, Tara Devi v. Thakur Radha Krishna Maharaj : AIR 1987 SC 2085 , Khema & Ors. v. Shri Bhagwan & Ors. : AIR 1995 RAJ 94 , Dinesh Kumar v. Ram Sahai : AIR 1981 RAJ 248 , M/s. Himalayan Rasayan Private Limited v. Maharashtra Electricity Board : AIR 1981 RAJ. 239 and Neelavathi & Ors. v. N. Natarajan & Ors. : AIR 1980 SC 691 . 10. It was prayed that the order passed by the trial court be set aside; in the alternative it was submitted that in case the court comes to the conclusion that on account of seeking of any prayer the petitioner is required to make payment of court fees, then in that case, the petitioner is prepared to abandon her relief. 11. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner; it was submitted that a bare look at the reliefs sought in the plaint would reveal that the petitioner has sought declaration and preemption and for the said reliefs, she was liable to pay court fees under Section 24(a) and (b) & 31 of the Act of 1961 and the trial court was perfectly justified in coming to the conclusion that the petitioner was liable to pay court fees on the market value of the suit property; the order passed by the trial court does not call for any interference; for the abandonment of relief the petitioner has to approach the trial court. 12. Reliance was placed on Rajendra Prasad Yadav v. Ravindra Nath Singh & Ors. AIR 2014 ALL 23 , Satheedevi v. Prasanna & Anr. AIR 2010 SC 2777 and Eastman Kodak Company v. M/s. M.R. Electronics & Ors. 1995(2) CCC 356 (Delhi) : ( AIR 1995 Del 136 ). 13. I have considered the rival submissions made by learned counsel for the parties. 14. It would be appropriate to notice the reliefs sought by the plaintiff in her suit and the para in the plaint pertaining to the court fees, which read as under:- Reliefs: (Vernacular matter omitted.........Ed.) 15. 13. I have considered the rival submissions made by learned counsel for the parties. 14. It would be appropriate to notice the reliefs sought by the plaintiff in her suit and the para in the plaint pertaining to the court fees, which read as under:- Reliefs: (Vernacular matter omitted.........Ed.) 15. A look at the reliefs claimed and the paragraph pertaining to the court fees, it appears that despite amendment of the plaint seeking declaration of the sale deed dated 02.01.2012 as null and void to the extent of plaintiff” s 1/3rd share and seeking right of preemption under Section 22 of the Hindu Succession Act, 1956 (' the Succession Act” ), the paragraph pertaining to the court fees has not been amended by the plaintiff. 16. The provisions of the Act of 1961 to the extent relevant dealing with the present case may also be noticed, which read thus:- ' 6. Multifarious suits. - (1) In any suit in which separate and distinct relief” s are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the relief” s; Provided that, if a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief. ' 11. Decision as to proper fee. - (1) In every suit instituted in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in plaint and on the materials contained in the statement, if any, filed under section 10, the proper fee payable thereon, the decision being however, subject to review, further review and correction in the manner specified in the succeeding sub-sections. (2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908). All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908). If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court” s decision and the deficit fee shall be paid. If the plaint be not so amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. ' 24. Suits for declaration. - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25 ” (a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market-value of the property, subject to a minimum fee of twenty rupees; (b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market-value of the property, subject to a minimum fee of twenty rupees; ' 31. Pre-emption suits.” In a suit to enforce a right of pre-emption, fee shall be computed on the amount of the consideration for the sale which the pre-emptor seeks to avoid or on the market-value of the property sold, whichever is less.' ' 35. Partition suits. - (1) In a suit for partition and separate possession of a share in joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market-value of the plaintiff” s share of the property. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates, namely:- (i) Rupees thirty if the value of plaintiff” s share is Rs. 5,000 or less; (ii) Rupees one hundred if the value is above Rs. 5,000 or less; (ii) Rupees one hundred if the value is above Rs. 5,000 but does not exceed Rs. 10,000; and (iii) Rupees two hundred if such value exceeds Rs. 10,000. (3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half of market-value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession. (4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in section 38, separate fee shall be payable on the relief of cancellation in the manner specified in that section.' 17. A bare look at the provisions of Section 11 of the Act of 1961 reveals that sub-section (2) of Section 11 contemplates filing of pleading by the defendants that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and it enjoins on the court to hear and decide all questions arising on such pleas before hearing of the suit as contemplated by Order XVIII, CPC (which pertains to hearing of the suit and examination of witnesses); as such, the plea raised by learned counsel for the petitioner that application in the first instance by the defendants was not maintainable is apparently contrary to the express provision of Section 11(2) of the Act of 1961. 18. 18. The judgment of this Court in the case of Khema, ( AIR 1995 Raj 94 ) (supra) was delivered while considering a second appeal, wherein, the question related to whether the lower appellate court committed error in trying the suit without deciding the question of court fees under Section 11 of the Act of 1961 and, wherein, it was observed that question relating to payment of court fees is a matter between plaintiff and the State Government and, as such, the State Government can be said to be an aggrieved party in payment of court fees and in a particular suit if the court fees is found to be sufficient, defendants cannot be allowed to question the sufficiency of court fees either before the trial court or before the higher courts and the appellants have no right to question the sufficiency of court fees paid by the plaintiff. The observations made by this Court can only be understood in the context where once the trial court finds the valuation of the suit as proper and/or court fees paid sufficient, the matter rests there and the same cannot be thereafter questioned; any other interpretation or implication of the said judgment would be contrary to the express language of Section 11(2) of the Act of 1961 and, therefore, the issue raised by counsel for the petitioner regarding lack of locus standi of the defendants in questioning the valuation/sufficiency of court fees has no basis. 19. So far as the question of stage for deciding sufficiency of court fees is concerned, it depends on the facts and circumstances of the each case as to at what stage the said aspect is to be taken up; if the valuation of the suit and sufficiency of court fees is based on disputed facts, the determination has to be made after framing of proper issue and giving the parties an opportunity to lead evidence; however, if the same is based on undisputed facts, it is not necessary that the determination should wait till the issues are framed and parties lead evidence; the judgment of this Court in the case of Iqramuddin, ( AIR 1991 Raj 42 ) (supra) cannot be read to mean that the determination, even in case where no evidence is required, has to wait till the issues are framed and decided by the Court. 20. 20. Coming to the merits of the case, a bare reading of the reliefs sought by the plaintiff, as quoted hereinbefore, reveals that the plaintiff has sought declaration of the sale- deed dated 02.01.2012 as null, void and ineffective qua her 1/3rd share and has claimed right of preemption under Section 22 of the Succession Act, preliminary decree regarding the immovable property, has sought partition by metes and bounds and permanent injunction. 21. The relief for partition has to be examined in terms of provisions of Section 35 of the Act of 1961, which provides for payment of court fees in a suit by a plaintiff, who is in joint possession of the property, whose value exists Rs. 10,000/- at Rs. 200/-. 22. The plaintiff in the present case in para 10, noticed hereinbefore, has claimed that as a co-owner, she was in physical possession of the suit property and has paid court fees at Rs. 200/-, which in the case of unamended plaint, wherein, reliefs (d) to (x) were not there, appears to be proper; however, on account of the fact that the property came to be transferred on the date of filing of the suit itself, the plaint was amended and relief seeking declaration qua the transfer made to the extent of plaintiff” s share has been sought; the nature of reliefs sought by the plaintiff by way of amendment, clearly brings the same within the four corners of Section 24 of the Act of 1961 and the court fees has to be computed on the market value of the property. 23. Further, in the case of relief for preemption, the fees has to be computed on the amount of consideration for the sale, which the pre-emptor seeks to avoid or on the market value of the property sold whichever is less; the petitioner has clearly sought reliefs ([k) and (x) pertaining to her right of pre-emption under the Succession Act and qua the said reliefs the court fees is payable on the consideration for the sale or the market value of the property sold. Even if, provisions of Section 6 of the Act of 1961 are applied in the present case; the court fees, in a case where separate and distinct reliefs have been sought, has to be paid on the aggregate value of the reliefs and it cannot be said that the reliefs (d) and ([k) sought in the plaint were merely ancillary reliefs to the main relief of partition. 24. The judgment cited by learned counsel for the petitioner in the case of Suhrid Singh, ( AIR 2010 SC 2807 ) (supra) is relevant only to the extent that the petitioner is not required to seek a cancellation of the sale- deed and her suit seeking declaration was sufficient; in the said case also Hon” ble Supreme Court after drawing a distinction between seeking a cancellation and seeking a declaration, came to the conclusion that the court fees has to be paid under Section 7(iv)(c) on the value of the property calculated in the manner provided for by Section 7(v) of the Court Fees Act, 1870 (' Act of 1870” ), the relevant parts of the said judgment read as under:” ' 7. 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. 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 the 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. 8. 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. 10. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale-deeds dated 20-4-2001, 24-4-2001, 6-7-2001 and 27-9-2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments.' 25. As such, the said judgment apparently in no way helps the petitioner. 26. So far as the judgment in the case of Smt. Meena alias Hema, ( AIR 2004 Raj 77 ) (supra) is concerned, there is no dispute regarding the principle laid down in the said judgment about applicability of provisions of Section 35(2) of the Act of 1961; however, in the said judgment the further reliefs as claimed in the present case were not in issue and, as such, the said judgment has no application. 27. 27. The judgments in the case of Daulatram (supra), Tara Devi, ( AIR 1987 SC 2085 ) (supra) have apparently no application to the present case as the judgments pertained to the Act of 1870. 28. The case of Dinesh Kumar, ( AIR 1981 Raj 248 ) (supra) also is wholly inapplicable, inasmuch as, the said case pertains to an adoption, which falls within the provisions of Section 25 of the Act of 1961 and Section 24 specifically excludes suits under Section 25, this is what was laid down in the said case. 29. The case of Himalayan Rasayan Pvt. Ltd., ( AIR 1981 Raj 239 ) (supra) has no application to the present case and the judgment in the case of Neelavathi, ( AIR 1980 SC 691 ) (supra) laying down principle that allegation in the plaint only can be the basis for determination of court fees, is not in dispute as the determination has been made only on the basis of the plaint averments and nothing more. 30. In view of the above discussion, the order passed by the trial court cannot be faulted. 31. So far as the plea raised by learned counsel for the petitioner seeking abandonment of certain plea/pleas in case the same results in payment of higher court fees is concerned, it is for the petitioner to move appropriate application before the trial court for the said purpose and no order can be passed in this regard by this Court while determining the validity and propriety of the order passed by the trial court. 32. In that view of the matter, there is no substance in the writ petition and the same is, therefore, dismissed. The stay application is also dismissed. No order as to costs. Petition dismissed.