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2022 DIGILAW 729 (ALL)

Vijay Dembla v. Sanjay Dembla

2022-05-09

SANGEETA CHANDRA

body2022
JUDGMENT : Sangeeta Chandra, J. 1. Heard Sri B. K. Saxena, learned counsel for the revisionist and Sri Ratnesh Chandra, learned counsel for the opposite party no.1. 2. This Revision has been filed challenging the order dated 04.04.2022 passed in Original Suit No. 256 of 2007, ‘Vijay Dembla vs. Sanjay Dembla and Others by the Court of Civil Judge(Senior Division), Lucknow where the learned Trial Court has decided the issue of Valuation of the Suit i.e. Issue no. 3 and also Issue no.4 relating to payment of enhanced court fee thereon. 3. It has been submitted by the learned counsel for the revisionist that the plaintiff i.e. the petitioner filed a Suit for Declaration of Will executed by his mother and also the mother of the opposite party no.1 and 2, Late Rekha Devi Dembla as void and for the Permanent Injunction injuncting the defendant from interfering in the property in dispute. According to the Plaint, a copy of which has been filed as annexure-02 of the application for interim relief, paragraph 14 mentions the contents of the Will and states such contents as factually incorrect, and paragraph 53 mentions, the valuation for the purpose of pecuniary jurisdiction of court fee. As the relief sought was for Declaration in respect of the Will valuation of which was not possible it was notionally fixed at Rs. 35,000/- upon which maximum court fee Rs. 200/- was paid and for further relief of permanent injunction regarding property in dispute Rs.35,00,000/- was fixed as market value and a maximum court fee of Rs. 500/- was paid. The total valuation of the Suit as per the plaint was Rs.35,35,000/- on which Court Fee of Rs.700/- was paid. Against such a statement being made in the plaint the respondent no.1 filed a Written Statement. While replying to the contents of paragraph 53 of the plaint in paragraph 45 of the Written Statement, it was stated that they were misconceived and wrong and that the Suit filed by the plaintiff for Declaration and Permanent Injunction was not maintainable, and also that the Court Fee had not been properly paid by the plaintiff, and therefore, the Suit was liable to be dismissed. 4. It has been argued by the learned counsel for the plaintiff that there is no mention of less valuation of the Suit in Para 45 of the Written Statement. 4. It has been argued by the learned counsel for the plaintiff that there is no mention of less valuation of the Suit in Para 45 of the Written Statement. The only mention is with regard to Payment of less Court Fee. It has been also argued that Valuation of Suit and Court Fee are two different things and therefore, two issues were framed issue no.3 relating to Valuation of Suit, Issue no.4 relating to Court Fee paid. It has been further argued that the learned trial court relied upon two sheets of papers submitted during the course of the arguments by the counsel for the respondent no.1 describing a large number of properties and giving their valuation arbitrarily. Such sheets of paper were not filed as documents alongwith list of documents relied upon by the respondent in the written statement, they were not filed alongwith the objection. Not being part of the pleadings in the written statement, they could not have been considered by the trial court while passing the order impugned. 5. It has been argued on the basis of an Execution Application filed on 15.05.1998, a copy of which has been filed as Annexure-02 to the Application for Interim Relief, that two consent awards dated 18.08.1996 and 17.08.1997 had been given by the Sole Arbitrator with regard to the assets left by father of the revisionist and the respondents no.1 and 2 Late Shri Chander Dembla with relation to family assets, for example, Cash, FDRs, Shares, Investment, etc. and all business and properties in dispute between the parties. As per such Awards for which Execution Application has already been filed by the revisionist, only Rs. 5,00,000/- from the family assets were reserved for Late Rekha Devi Dembla, the Mother and each of the two sons i.e. Vijay Dembla and Sanjay Dembla were required to give Rs. 2,500/- per month to her as pocket expenses. In the said Execution Application it was stated that since Sanjay Dembla was not disclosing all the properties belonging to their father, the revisionist was reserving his right to file such details of assets after finding them out. 6. It has been argued that the Execution Application filed under Section 36 of the Arbitration and Cancellation Act, 1996 for execution of the two consent awards is still pending before the District Judge. 7. 6. It has been argued that the Execution Application filed under Section 36 of the Arbitration and Cancellation Act, 1996 for execution of the two consent awards is still pending before the District Judge. 7. It has been argued that under Section 7(iv-A) of the Court Fees Act as applicable in U.P., for cancellation or adjudging void an instrument or a decree involving money or property, the Court Fee has to be paid on the Valuation of such property. The valuation not being disputed in the Written Statement by the respondent and only loose sheets of paper being provided to the Trial Court for determination of valuation at the time of argument, no reliance on such loose sheets of papers could have been placed by the learned Trial Court for fixing valuation. The valuation which was mentioned in the plaint by the plaintiff alone could have been relied upon. 8. Learned counsel for the revisionist has referred to Section 6 of the Court Fees Act which refers to court fee and Sub Section (3) thereof, where if a question of deficiency in court fees in respect of any claim/ or memorandum of appeal is raised, the trial court shall proceed to record a finding on the Court Fee and whether it had been paid sufficiently or not. If the court finds that the court fee is insufficient it can call upon the plaintiff or the appellant as the case may be to make good the deficiency within time as prescribed by the trial court/appellate court and in case of failure to do so it may reject the plaint or the appeal. The trial court/appellate court may also for sufficient reasons grant time or extend the time for payment of deficiency in court fee and may also give opportunity to the plaintiff or the appellants for filing security in lieu thereof. But in any case no judgment shall be delivered finally on the plaint or the appeal without such deficiency of court fee as determined by the court being made good by the plaintiff for the appellant. It has been argued that under Section 12 of the Court Fees Act, a question of valuation for the purpose of determination of the amount of fee payable on the plaint or the appeal has to be decided by the Court and such decision shall be final as between the parties to the Suit/Appeal. It has been argued that under Section 12 of the Court Fees Act, a question of valuation for the purpose of determination of the amount of fee payable on the plaint or the appeal has to be decided by the Court and such decision shall be final as between the parties to the Suit/Appeal. It has been argued on the basis of such Section of the Court Fees Act, 1870 (as applicable State of U.P.) that the order passed by the trial court in this case has attained finality and therefore, was a Revisable Order as has been held by the Supreme Court in the Case of Nami Chand vs. The Edward Mills Company Limited AIR 1953 SC 28 where the Supreme Court held that the finality attached to the order regarding valuation of Suit as given under Section 12 of the Court Fee Act means that the parties cannot impugne such a decision by preferring an appeal, but that does not confer on such decision a complete immunity from examination in a higher Court. Learned counsel for the petitioner has read out the observations made by the Supreme Court which are as follows:- “------ in other words, Section 12 when it says that such a decision shall be final between the parties, only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision under Section 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers.------.” 9. It has been argued by the learned counsel for the revisionist that a perusal of the trial court’s order would show that the formalities required for determination of valuation as per procedure prescribed under law were not followed and therefore, the order passed by the trial court fixing valuation and determining court fees as insufficient is liable to be interfered with by this Court in this revision. 10. 10. It has also been argued by the learned counsel for the revisionist that it is evident from a bare perusal of the order under challenge that not only inadmissible evidence was taken into consideration by the trial court but also the fixation of valuation of Suit at Rupees Two Crores was completely without any material on record, and therefore, the order impugned can also to be said to be perverse and liable to be set aside. Learned counsel for the petitioner has placed reliance upon a Coordinate Bench decision of this Court in “Abhay Sood vs. Babu Butuk Nath” in Civil Revision No. 116 of 2010 decided on 03.12.2012. The Court had observed that in deciding a case, the court should rely upon the evidence led by the parties for deciding the case. “A court of law cannot function as an ‘assessor’. The Assessment by the Court of law is nothing short of introduction of a third case, which is not permissible under Indian Judicial System. While rejecting the values as proposed by one either of the parties including the valuation report submitted by one of them, the trial court had enhanced the value of the property to the detriment of the plaintiff, without any substance or evidence. Such a determination amounted to perversity which has been defined as deliberately departing from what is normal and reasonable and against the material on record.” 11. Learned counsel for the respondent no.1, Sri Ratnesh Chandra, on the other hand, has argued on the basis of the plaint that the Suit was filed for declaration and permanent injunction, the declaration was sought for the Will executed by the Mother of the plaintiff and the defendant, Smt. Rekha Devi Dembla w/o Late Sri Chandra Dembla on 27.04.1998. For determining the validity of a document, the valuation has to be done only on the basis of the value of the properties as mentioned in the document/instrument. He has placed placed before this Court a copy of Will dated 27.04.1998 made out by the Late Mother of the parties wherein she has mentioned that she is owned of 1/3 of all the property owned by her husband including residential houses, shopping complex, plots of land, business, bank accounts, FDRs Shares etc. alongwith her two sons, Vijay Dembla and Sanjay Dembla. alongwith her two sons, Vijay Dembla and Sanjay Dembla. She had also mentioned in her Will that being the only daughter of her parents (who died much earlier), she had also inherited property in Village Andal District Burdwan in West Bengal. She had a bank account in her name in the State Bank of Saurashtra and also had movable property and self acquired jewelry for which she was the complete and sole owner and no part of it belonged to anyone but herself. It has been argued that when this fact was placed before the trial court, the trial court passed an order on 20.11.2021 directing the respondent no.1 to place on record the details of all the properties that were involved including movable and immovable, which were either owned solely by Late Rekha Devi Dembla, or in part alongwith her two sons. On such a direction being issued by the trial court, the respondent no.1 had filed a list of such properties. A copy of such list has been filed as Annexure to the application for interim relief, which shows that Late Rekha Devi Dembla owned certain share in residential house, plots of land, shops etc. as well as property in District Burdwan, West Bengal, the total estimated immovable property came to about Rupees Thirty One Crores Thirdy One Lacs and odd. The list of movable properties and their approximate value was also given which including FDR’s, bank accounts and shares of more than Rupees Eleven Crores. The total amount of movable property was more than Rupees Twelve Crores Ninty Lacs, the total approximate market value of all the properties of Late Rekha Devi Dembla was more than Rupees Forty Six Crores. It was also mentioned that all the above properties were already under an injunction order passed by the District Judge looking in Execution Case No. 6 of 1998, ‘Vijay Dembla vs. Sanjay Dembla since 1998 and that the plaintiff had deliberately undervalued the property of Late Rekha Devi Dembla, and if and when such Will is declared void then alone, it could be said that the property has a notional value as submitted in the plaint. The learned counsel for the respondent no.1 has pointed out paragraph 53 and Sub Para (1) thereof as stated in the plaint which says that the Will is incapable of valuation, yet the plaintiff fixed a notional value of the Will at Rs. 35,000/- only, and therefore, paid maximum Court Fee of Rs. 200/- thereon. Learned counsel for the respondent also referred to Section 7(iv-A) of the Court Fee Act, 1870 (as applicable in the State of U. P.) which says that Court Fee has to be paid ad-valorem as per the valuation of the property involved in the decree or instrument. 12. Learned counsel for the respondent no.1 has placed reliance upon judgment rendered by the Supreme Court in the case of Shailendra Bhardwaj and Ohers vs. Chandra Pal and Another (2013) 1 SCC 579 . He has referred to paragraph 2 of the said judgment where the relief as claimed in the plaint is mentioned by the Supreme Court and Paragraph 9, which is the conclusion arrived at after consideration of Section 7 (iv-A) (as applicable to the State of U.P.). He has read out the observations made by the Supreme Court which are as follows:- “9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U. P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17 (iii) of Schedule II of the Court Fees Act would not apply. The U. P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7 (iv-A) of the U. P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as High Court have correctly held so.” 13. Consequently, in terms of Section 7 (iv-A) of the U. P. Amendment Act, the court fees have to be computed according to the value of the subject-matter and the trial court as well as High Court have correctly held so.” 13. It has been argued by the learned counsel for the respondent no.1 that the order of the trial court dated 20.11.2021 has not been placed on record, which order of the trial court is material and should be considered because it allowed the respondent no.1 the defendant in the said suit, to place on record the correct valuation of the property involved in the Will of Late Rekha Devi Dembla. He has argued that the Shares of various Companies alone that were involved in the Will amounted to more than Rupees Eleven Crores, besides there was property in West Bengal, Jewelery etc. and the plaint itself stated that the Will was incapable of valuation. Yet the trial court somehow came to conclusion that the property was more than Rupees Two Crores and fixed court fee, accordingly. 14. This Court has perused the order impugned passed by the trial court and finds that the trial court no doubt has stated that the plaintiff has not mentioned the details of the properties involved in the Will, a declaration for which was sought, and therefore, it had directed the defendant to produce the list of properties movable and immovable, which were a subject matter of the Will of the testator. After referring to the details as given by the defendant, it has decided that the valuation of the property involved in the instrument i.e. the Will was much more then has been disclosed by the plaintiff, and has thereafter, fixed its value as Rupees Two Crores. How such a valuation of Rupees Two Crores has been arrived at when the document submitted by the defendant showed that it was worth more than Rupees Forty Six Crores is not evident from the order impugned dated 04.04.2022. 15. This Court has perused the Will a copy of which was been handed over to this Court by the learned Counsel for the respondent during the course of the arguments. This Court has also perused the papers filed by the respondent before the trial court in pursuance of the order dated 20.11.2021. 15. This Court has perused the Will a copy of which was been handed over to this Court by the learned Counsel for the respondent during the course of the arguments. This Court has also perused the papers filed by the respondent before the trial court in pursuance of the order dated 20.11.2021. This Court has also carefully considered the provisions of Article 17 (iii) of the Second Schedule to the Stamp Act and compared it with the language used in Section 7 (iv-A) of the Stamp Act as amended and applicable to the State of U.P. Article 17(iii) is applicable in cases where the plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision in the Court Fees Act for payment of fee relating to relief claimed. Since Section 7 (iv-A) of the Court Fees Act as applicable to the State of U.P. specifically provides for payment of Court Fee in a case where the Suit is for declaration/involving cancellation of an instrument relating to property which most-surely a Will Deed relating to bequeathing of property is all about, the said Section would squarely be applicable. It is apparent that the petitioners/plaintiff had sought the relief of cancellation/declaration of Will as null and void alongwith relief of prohibitory injunction as a consequential relief. The Will Deed related to movable and immovable properties of the Testator and therefore, the Suit had to be valued only on the face value of such a Will till it was declared void by the Court, and was to chargeable to Stamp Duty “ad valorem” i.e. awarding to the value of the property which has been dealt with in the Will or the instrument bequeathing property. 16. The Order dated 04.04.2022 is set aside, the matter is remitted to the trial court to decide afresh, both Issues No. 3 and 4 in the Suit, after giving opportunity to both the parties to lead evidence. Since the defendant to the Suit has already filed a list of properties, movable and immovable of the testator, the plaintiff is granted four weeks time to file his list of property, which according to him are involved in the Will prayed by him to be declared void. 17. Accordingly, this petition is allowed. 18. Since the defendant to the Suit has already filed a list of properties, movable and immovable of the testator, the plaintiff is granted four weeks time to file his list of property, which according to him are involved in the Will prayed by him to be declared void. 17. Accordingly, this petition is allowed. 18. Let such issues to be decided by the Trial Court within a period of three months from the date a copy of this order is produced before it.