Karnataka High Court
Smt. Prema W/O Krishna Bhat vs Shrinivas Subray Palekar on 27 May, 2024
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NC: 2024:KHC-D:7025
WP No. 107689 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.107689 OF 2018 (GM-CPC)
BETWEEN:
1. SMT. PREMA W/O. KRISHNA BHAT,
AGED ABOUT: 66 YEARS,
OCC: HOUSEHOLD,
2. NAVEEN KRISHNA BHAT,
AGED ABOUT: 33 YEARS,
OCC: COMPUTER SERVICE,
BOTH ARE R/O: OPP: APMC GATE,
HUBBALLI ROAD, SIRSI-581342,
UTTARA KANNADA DISTRICT.
...PETITIONERS
(BY SRI.S.G. KADADAKATTI, ADVOCATE)
AND:
1. SHRINIVAS SUBRAY PALEKAR,
AGED ABOUT: 76 YEARS,
LEATHER WORKER,
2. VISHWANATH SUBRAY PALEKAR,
MOHANKUMAR
B SHELAR AGED ABOUT: 70 YEARS,
RETIRED,
Digitally signed by
MOHANKUMAR B
SHELAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH
3. RAVIDAS SUBRAY PALEKAR,
AGED ABOUT: 68 YEARS,
EMPLOYED,
ALL ARE RESIDENTS OF NEAR APMC GATE,
HUBBALLI ROAD, SIRSI-581342,
UTTARA KANNADA DISTRICT.
...RESPONDENTS
(BY SRI. R.H. ANGADI, ADV. FOR R1-R3)
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NC: 2024:KHC-D:7025
WP No. 107689 of 2018
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
ON THE FILE OF THE PRL.CIVIL JUDGE, SIRSI IN O.S.NO.253/ 2010;
QUASH THE ORDER DATED:05.09.2018 PASSED BY THE PRL.CIVIL
JUDGE,SIRSI,ON ISSUE NO.5 & 6 IN O.S.NO.253/2010 VIDE
ANNEXURE-"C" BY ALLOWING THIS WRIT PETITION, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The impugned order under challenge is squarely covered by the judgment rendered by this Court in the case of K.Nagaraj S/o Late A.Krishnappa Vs Sri Muniswamy S/o Late Dodda Abbaiah @ Venkatappa and others passed in W.P.No.3351/2019 disposed of on 11.07.2022.
2. Petitioner has filed a suit in O.S.No.253/2010 seeking the relief of declaration based on a Will executed by one deceased Venkatesh Subray Palekar. While entertaining the objection raised by the defendants, learned Judge by treating issue relating to payment of Court fee has answered the said issue in the affirmative -3- NC: 2024:KHC-D:7025 WP No. 107689 of 2018 and has called upon the petitioners/plaintiffs to furnish a fresh valuation in terms of Section 24(b) of the Karnataka Court Fees and Suits Valuation Act.
3. This Court while examining the controversy relating to the valuation of plaint for the purpose of Court fee and jurisdiction when a declaration based on Will is sought, which is held as under;
"7. The position about suits for declaratory decree has been much simplified by the Act. Section 24 of the Act makes no distinction between a case where consequential relief is claimed and a case where no consequential relief is claimed except where the consequential relief is with reference to immovable property. Secondly, clause (d) of Section 24 does away with a distinction between a case where the subject matter of the suit is capable of valuation and a case where the subject matter is not capable of valuation. Section 24(d) of the Act covers all cases of declarations with or without consequential relief not covered by sub-clause (a), (b) and (c) and whether the subject matter is or is not capable of valuation. Where a suit falls under clause (d) of Section 24, discussion on the question whether relief is capable of valuation is irrelevant.-4-
NC: 2024:KHC-D:7025 WP No. 107689 of 2018
8. While examining the relief of declaration what needs to be looked into is that market value does not become decisive of suit valuation merely because an immovable property incidentally has a nexus to the subject matter of suit and is remotely connected to the litigation. What the Courts are required to examine is to whether valuation of any particular suit has to be decided primarily with reference to reliefs claimed. Where the subject matter of the suit involves an immovable property, clauses (a) and (b) of Section 24 are attracted. While clauses (a) and (b) of Section 24 deal with tangible rights, clause (d) deals with intangible rights.
11. xxxxx. On reading prayer (b) in the counter claim, it is clearly evident that defendant is seeking relief of declaration based on Will dated 30.12.2003. Therefore, the subject matter of counter claim is validity or otherwise of the Will and not the properties covered under the Will. If the counter claim relates to the dispute in regard to genuineness of Will, this Court is more than satisfied that the subject matter of the suit is not capable of valuation. The Will which is the subject matter of the counter claim cannot be subjected to any valuation and therefore, the suit for declaration based on Will being in respect of intangible right would obviously fall under clause (d) and not under clauses (a) or
(b). xxxxxx -5- NC: 2024:KHC-D:7025 WP No. 107689 of 2018
4. In the light of judgment rendered by this Court, the order under challenge being contrary to the law laid down by this Court is not sustainable. The order suffers from material irregularity and therefore, liable to set- aside.
ORDER
i) Writ petition is allowed.
ii) The impugned order under challenge is
hereby set-aside.
iii) Petitioners/plaintiffs and respondents/
defendants shall cooperate for early
disposal of the suit.
iv) Learned Judge shall expedite the matter
and decide the suit in accordance with law.
Sd/-
JUDGE AM/-.
List No.: 1 Sl No.: 75