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2015 DIGILAW 469 (KAR)

Vikram Ravi Menezes v. Victor Goveas

2015-04-24

N.KUMAR

body2015
ORDER N. Kumar, J. 1. It is the defendant's writ petition, challenging the order dated 30.7.2013 passed in O.S. No. 14/2009 on additional issue No. 5, which was tried as preliminary issue, holding that the suit for declaration that the sale deed dated 29.1.2005 allegedly executed by the father of the plaintiff in favour of the defendant is null and void and not binding upon the plaintiff, is properly valued under Section 26(c) and 24(d) of the Karnataka Court Fee and Suit Valuation Act, 1958 (for short "the Act"). 2. The plaintiff filed O.S. No. 14/2009 for the following reliefs: "(a) For a permanent prohibitory injunction restraining the defendant, his men, servants, agents or anyone claiming through or under him from disposing off or in any way conveying the suit schedule property to any third party/parties by relying the fraudulent sale deed dated 29.1.2005 or any revenue documents including RTC pertaining to the schedule property or in any way causing waste or damage to the schedule property; (b) To declare that the sale deed dated 29.1.2015 allegedly executed by the father of the plaintiff in favour of defendant without any authority whatsoever nature is null and void and the same is not binding upon the plaintiff and consequential relief of mandatory injunction directing the defendant or his men, agents, servants or any one claiming through or under him to surrender the suit schedule property within the time fixed by this Hon'ble Court failing which the same shall be done through process of Court of law; (c) For grant of cost of this suit; (d) For grant of such other and further reliefs in the interest of justice" 3. The defendants have contested the suit. Issues have been framed and additional issue No. 5 reads as under: "Whether the plaintiff proves that the suit is properly valued for the purpose of Court Fee and jurisdiction and paid sufficient court fee on the plaint?" 4. In paragraph 5 of the plaint, it is averred that the plaint is valued for the purpose of jurisdiction and paid the fixed court fee as per Section 26(c) and 24(d) of the Act. The Trial Court treated additional issue No. 5 as preliminary issue and posted the case for evidence on preliminary issues. The defendant was examined as DW 1 and he got marked the documents as Exs. The Trial Court treated additional issue No. 5 as preliminary issue and posted the case for evidence on preliminary issues. The defendant was examined as DW 1 and he got marked the documents as Exs. D1 to D6, then the case was posted for arguments. After hearing both the parties, the Trial Court was of the view that the plaintiff is not the executant of the sale deed and he has challenged the sale deed alleged to have been executed by his father. He need not pay the court fee on the market value of the property. The suit is not one for cancellation of the sale deed and therefore, the trial court was of the view that the valuation of the suit under Section 26(c) and 24(d) of the Act, is proper. The suit need not be valued under Section 38 of the Act. Aggrieved by the said order, the present writ petition is filed. 5. I have heard the learned counsel for the parties. 6. The plaint averments disclose that the father of the plaintiff sold the schedule property to the defendant under registered sale deed dated 29.1.2005 for a sale consideration of Rs. 4 lakhs. On coming to know that the defendant has illegally obtained plaintiff's father's signature and created the alleged general power of attorney dated 13.4.2004 and making use of the same executed alleged sale deed in his name, the plaintiff filed the suit for a declaration that the sale deed dated 29.1.2005 is without any authority, null and void and the same is not binding upon him and consequential relief of mandatory injunction directing the defendant, his men, servants to surrender the suit schedule property within the time to be fixed by the Court, failing which the same shall be done through due process of law. Therefore, in substance, the relief sought is for annulling the sale deed standing in the name of the defendant and for possession. 7. Section 24 (c) is now not on the statute book. Therefore, what needs to be looked into is Section 24(d) which reads as under: "Suits for declaration. - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.- ... ... ... ... 7. Section 24 (c) is now not on the statute book. Therefore, what needs to be looked into is Section 24(d) which reads as under: "Suits for declaration. - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.- ... ... ... ... (d) in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher." 8. However, if we look at the scheme of Section 24, Section 24(a) deals with declaration of title and for possession of the property to which the declaration relates and the court fee is payable on the market value of the property or on Rs. 1,000/-, whichever is higher. Section24(b) deals with cases where the person who is seeking the relief is in possession of the property and is only seeking a declaration or consequential injunction with reference to immovable property in which event, the fee shall be computed on one half of the market value of the property or on Rs. 1,000/-, whichever is higher. Section 24(d) is attracted, when the case does not fall under clause (a) and (b), thereof. 9. Section 38 of the Act, deals with suits for cancellation of decrees, etc. and the same reads as under: "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 other 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." Thus, Section 38 of the Act has application to a case of cancellation of a 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, in which event, fee shall be computed on the value of the subject matter of the suit and the subsequent provisions in the section deals with how valuation is to be done. Section 24 deals with suits for declaration. Section 38 deals with suit for cancellation of documents. Both are exclusive. Both of them, operate in their respective fields. Therefore, in order to find out whether the suit is properly valued or not, one has to look into the averments in the plaint, the relief sought for and then decide the provision which is to be invoked for payment of court fee. In this context, it is also necessary to keep in mind Section 31 of the Specific Relief Act, 1963, which deals with cancellation of instruments and the same reads as under: "When cancellation may be ordered - (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." 10. Therefore, Section 31 of the Specific Performance Act, 1963 has to be read along with Section 38 of the Karnataka Court Fee Suit Valuation Act. Therefore, Section 31 of the Specific Performance Act, 1963 has to be read along with Section 38 of the Karnataka Court Fee Suit Valuation Act. In the light of these provisions, we, now would consider the facts of this case. Admittedly, there is registered sale deed executed by the plaintiff's father. The plaintiff belongs to the Christian community. He has no right in the property in respect of which his father has executed the sale deed, though, he contends that his father acquired the title under a Will, where he was not permitted to alienate the property. That by itself, would not convey right on the plaintiff in presenting a suit for any right in the property. Once, father executes a sale deed, and confers title on the defendant, the title vests with the defendant. Unless the said registered document is cancelled in a manner known to law, the title of the property chooses to rest with the defendant. 11. Since the plaintiff has no title to the property and is not a party to the sale deed, the said sale is not binding on him. The declaration that a particular sale deed is not binding on the plaintiff would become necessary only when a person who has interest in the property, but is not a signatory to the document, and some other person purports to convey the said title. The plaintiff would in no way be bound by the document, though registered, when he is not a party to the said instrument. In such an event, he can seek declaration. If the plaintiff has no right or interest in the property, the question of granting declaration that the said alienation is not binding on him, would not arise. 12. In view of the provisions to Section 24, as referred to above, if a plaintiff's title to the property is disputed, if his possession is sought to be disturbed, or if he is not in possession and wants forever possession, Section 24(a) and (b) provides for valuing such suits and the court fee payable. It is only when the case does not fall under Section 24(a) and (b), Section 24(d) is attracted as in the instant case. The plaintiff cannot seek a declaration that he is the owner of the suit schedule property as admittedly he is not the owner. Admittedly, he is not in possession. It is only when the case does not fall under Section 24(a) and (b), Section 24(d) is attracted as in the instant case. The plaintiff cannot seek a declaration that he is the owner of the suit schedule property as admittedly he is not the owner. Admittedly, he is not in possession. Therefore, the question of seeking a decree of injunction, would not arise. He can seek for delivery of possession provided he has title, which he does not possess as on the date of the suit. Therefore, his invoking Section 24(d) in those circumstances, does not stand to reason. 13. When we read the entire plaint, it is clear that the plaintiff's father has executed the registered sale deed and put the defendant in possession and the sale deed has the effect of creating title in the defendant and the same operating against all other persons insofar as title of property is concerned. Now, the plaintiff wants the said document to be declared as null and void, executed without any authority. That is precisely what Section 31 of the Specific Performance Act provides. Any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable. Therefore, only a person who is a party to the instrument is entitled to such relief. Any person against whom the instrument is void/voidable reasonably apprehends that such instrument if left outstanding, it may cause him serious injury, he may bring a suit to get the document annulled. That is precisely what is done by the plaintiff by filing the suit. A clever drafting would not enable the plaintiff to avoid payment of court fee. Instead of seeking possession after cancellation, the relief is sought is by way of mandatory injunction directing the defendant to surrender the schedule property, failing which he would get it through process of court. In other words, after the sale deed is cancelled, the plaintiff wants delivery of possession. Therefore, he ought to have sought for cancellation of the sale deed under Section 31 of the Specific Performance Act, valued the suit under Section 38 of the Karnataka Court Fee and Suit Valuation Act, and sought for consequential reliefs. The valuation under Section 26(c) and 24(d) is not proper. 14. Therefore, he ought to have sought for cancellation of the sale deed under Section 31 of the Specific Performance Act, valued the suit under Section 38 of the Karnataka Court Fee and Suit Valuation Act, and sought for consequential reliefs. The valuation under Section 26(c) and 24(d) is not proper. 14. Unfortunately, the Trial Court has not properly appreciated the facts of this case, the relevant provisions of law and misread the judgments relied upon and committed a serious error in holding that the valuation done by the plaintiff is proper. In fact, this question arose for consideration of this Court in the cases of GURU PRASAD AND OTHERS vs. S.A. RUDRARADHYA AND OTHERS reported in 2010 (5) KCCR 4204; MR. V. PRABHAKAR vs. MR. K. RAJA AND OTHERS reported in 2013 (1) KCCR 570 and a similar view is taken in an unreported judgment in W.P. No. 66012/2012. Therefore, the order cannot be sustained. Hence, I pass the following. ORDER Writ Petition is allowed. The impugned order passed on additional issue No. 5 tried as preliminary issue, is hereby set aside. The plaintiff has not properly valued the suit. The plaintiff to value the suit under Section 38 of the Specific Relief Act and thereafter, pay the court fee. Ordered accordingly.