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2018 DIGILAW 854 (KAR)

Subbamma v. V. Kanakaraj Gupta

2018-08-06

VINEET KOTHARI

body2018
ORDER : VINEET KOTHARI, J. 1. The plaintiff No. 1-Subbamma W/o late D.V. Munivenkatappa and two others-the legal representatives (sons) of late D.V. Munivenkatappa, who is said to have died on 13.10.1993, have filed this writ petition under Article 227 of the Constitution of India against the defendants-Dr. V. Kanakaraj Gupta S/o P.S. Venkatesha Setty, Geetha K. Gupta, W/o P.S. Venkatesha Setty and Madhavaswamy S/o late Dr. D. Gopala Krishna Rao, aggrieved by the Order dated 29.07.2016 by which the learned Trial Court has decided the Issue No. 5 against the plaintiffs and has directed the plaintiffs to deposit the Court Fees on the sale consideration of Rs. 12,38,000/- of sale deed dated 25.09.2006 executed by the Defendant No. 1-Dr. V. Kanakaraj Gupta as Power of Attorney holder of late D.V. Munivenkatappa in favour of defendant No. 3-Madhavaswamy S/o late Dr. D. Gopala Krishna Rao. 2. The learned Trial Court has given the following reasons in the impugned order for payment of ad-valorem Court fees: "5. I have perused the plaint and the documents produced. The property referred in the decision reported in (2010) 12 SCC 112 (Suhrid Singh @ Sardool Singh V/s Randhir Singh & Ors.) in supra is relating to the agricultural lands wherein the Court fee is valued as per Section 7(2) of Karnataka Court Fee and Suit Valuation Act. It was held that plaintiff in the present case not being executant, ad-valorem Court fees on market value held was not applicable. In the present case, the declaration is sought for that sale deeds executed by the alleged General Power of Attorney holder in favour of his wife is not binding. The property in question is not an agricultural land. It is stated by the plaintiff that D.V. Munivenkatappa had acquired two agricultural property by way of the sale deeds on 09/01/1981 registered in his name to the extent of 28 guntas and sites were formed out of the said land. He acquired the property in the year 1980. It is not the case of the plaintiff that Munivenkatappa acquired the property of 28 guntas in Sy. No. 71/2 of Chikkallasandra village, Uttarahalli Hobli, Bangalore South Taluk from the income of the joint family properties. Therefore, the decisions relied in (2010) 12 SCC 112 (Suhrid Singh @ Sardool Singh V/s Randhir Singh & Ors.) referred supra is not applicable. It is not the case of the plaintiff that Munivenkatappa acquired the property of 28 guntas in Sy. No. 71/2 of Chikkallasandra village, Uttarahalli Hobli, Bangalore South Taluk from the income of the joint family properties. Therefore, the decisions relied in (2010) 12 SCC 112 (Suhrid Singh @ Sardool Singh V/s Randhir Singh & Ors.) referred supra is not applicable. Moreover, the plaintiff has relied on the decisions reported in ILR 2001 KAR 3988 (B.S. Malleshappa V/s. Karatagigere B. Shivalingappa and Ors.) wherein the case of the partition was set up. In that case, Court fee had to be determined referring to plaint averments alone. The present suit is not for partition of the joint family properties. Therefore, this decision relied by the plaintiff is not applicable to the case on hand. Further, the plaintiff has also relied on the decisions reported in the writ petition No. 68695/2010 in the case of Smt. Malati V/s Smt. Prema & Ors., Shaktinagar, Rajatgiri, Dharwad. The said writ petition order was relating to the suit for partition and separate possession of the 1/3rd share in the suit schedule property of the petitioner. In that case the property was inherited and she was in possession of the property valued under Section 35(2) was held proper. 6. In the present case, the suit is for declaration and injunction to the effect that sale deed dated 25/09/2006 and 23/04/2012 executed by the 2nd defendant in favour of 3rd defendant is not binding on the property and it is on the basis of the fraudulent sale deed dated 25/09/2006 in favour of the 2nd defendant. In this case plaintiff is directed to pay Court fee on the sale consideration of the sale deed dated 25/09/2006. The valuation paid by the plaintiff of the Court fees paid on the plaint averments alone for a sum of Rs. 50/- cannot be accepted. Therefore, I hold that plaintiff shall have to pay the Court fees on the sale consideration of Rs. 12,38,000/- as far as the sale deed dated 25/09/2006 is concerned. Accordingly, I answer issue No. 5 in the Negative and proceed to pass the following: ORDER Issue No. 5 is held in Negative. Consequently, the plaintiff is directed to pay Court fee on the sale consideration amount of Rs. 12,38,000/- of sale deed dated 25/09/2006. The plaintiff is granted time to pay the Court fee. Call on 29/09/2016. Accordingly, I answer issue No. 5 in the Negative and proceed to pass the following: ORDER Issue No. 5 is held in Negative. Consequently, the plaintiff is directed to pay Court fee on the sale consideration amount of Rs. 12,38,000/- of sale deed dated 25/09/2006. The plaintiff is granted time to pay the Court fee. Call on 29/09/2016. Sd/- (Muhammed Khan. M. Pathan) V ADDL. CITY CIVIL JUDGE BANGALORE" 3. Learned counsel for the plaintiffs/petitioners Mr. Virupakshaiah P.H., relying upon the decision of the Hon'ble Supreme Court in the case of Suhrid Singh alias Sardool Singh vs. Randhir Singh and Others (2010) 12 SCC 112 and other judgments referred to by the learned Trial Court has submitted before this Court that the sale deed in question of which the cancellation was sought by the plaintiffs/petitioners could not bind them which was executed by the Power of Attorney holder much after the death of late D.V. Munivenkatappa, who died on 13.10.1993 whereas the sale deed in question was executed by the said Power of Attorney holder-Defendant No. 1-Dr. V. Kanakaraj Gupta on 25.09.2006 and since the plaintiffs only claimed declaration for treating the said sale deed as non est and not binding upon the plaintiffs, payment of Court fee on the sale consideration was not payable ad valorem and therefore, the Trial Court erred in passing in the impugned order. 4. On the other hand, Ms. Champoo Kavya S., the learned counsel for the Defendant/Respondent No. 3-Madhavaswamy urged before the Court that the sale deed dated 25.09.2006 is made in favour of the Respondent No. 3, A copy of which is placed on record Annexure-D, inter alia clearly stipulates that the first vendor of the sale deed namely Smt. Geetha K. Gupta in whose favour the Power of Attorney holder Dr. V.K. Janakaraj Gupta executed the sale deed on 25.09.2006 was not only in peaceful and vacant possession of the suit property in question but on payment of full consideration of Rs. 25 lakhs received from the defendant No. 2 had transferred the said property to defendant No. 3 and also vacant and peaceful possession vide Clause 7 of the said sale deed and therefore for seeking a cancellation of such valid sale deed, plaintiffs have been rightly directed to pay the ad-valorem Court fees. 5. 25 lakhs received from the defendant No. 2 had transferred the said property to defendant No. 3 and also vacant and peaceful possession vide Clause 7 of the said sale deed and therefore for seeking a cancellation of such valid sale deed, plaintiffs have been rightly directed to pay the ad-valorem Court fees. 5. Having heard the learned counsels for the parties, this Court is satisfied that there is no error in the impugned order passed by the Trial Court demanding the payment of Court fees ad-valorem on the basis of the valuation of the sale deed in question. The judgment relied upon by the learned counsel for the plaintiffs/petitioners is distinguishable in as much as the plaintiffs herein are challenging the sale deed in favour of the subsequent purchasers of the property in question from the said Power of Attorney holder Dr. V. Kanakaraj Gupta, who had not only transferred the title in favour of the defendant No. 3-Madhavaswamy but also possession of the suit property in question and therefore, it cannot be said that the plaintiffs in question, who are not the executants of the said sale deed in question but are only LRs. of deceased executant of Power of Attorney cannot claim the said declaration that Sale Deed is not binding upon them and for claiming the consequential relief in the matter without payment of ad-valorem Court fees. 6. Therefore, the payment of Court fees ad-valorem is found to be justified and the present writ petition filed by the plaintiffs does not have any merit and the same is liable to be dismissed and it is accordingly dismissed. No costs.