Karnataka High Court
Smt Vinodha I Shetty vs Smt Lakshmi Shedthy on 16 August, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.9362/2017 (GM-CPC)
BETWEEN:
SMT. VINODHA I. SHETTY
D/O LATE SHYAMA SHETTY AND
W/O LATE INDRA V. SHETTY,
AGED ABOUT 64 YEARS,
RESIDING AT NO.24/1,
KRISHNADAM PATEL'S HOUSE,
AMBALAPADY VILLAGE,
UDUPI TALUK-576101.
...PETITIONER
(BY SRI. AJITH A. SHETTY, ADVOCATE)
AND:
1. SMT. LAKSHMI SHEDTHY
D/O LATE DODDAKKASHEDTHI,
AGED ABOUT 72 YEARS,
RESIDING AT SUBRAMANYANAGAR,
PUTTUR VILLAGE,
UDUPI TALUK AND DISTRICT-576101.
2. MRS. NAYANA M. SHETTY
W/O MEGHNATH J. SHETTY,
AGED ABOUT 43 YEARS,
SHETTY ESTATE,
CHAKALA,
ANDHERI EAST, MUMBAI-400047.
3. MRS. VINAYA S. SHETTY
W/O SATISH SHETTY,
AGED ABOUT 39 YEARS,
2
FLAT NO.801, 'A' WING,
BLACKSMITH, TOWER-1
SECTOR NO.6,
AIROLI, NAVI MUMBAI-400001.
4. MRS. RESHMA R. SHETTY
W/O RAVICHANDRA SHETTY,
AGED ABOUT 36 YEARS,
RESIDING AT NO.24/1,
KRISHNADAM PATEL'S HOUSE,
AMBALAPADY VILLAGE,
UDUPI TALUK-576101.
...RESPONDENTS
(BY SRI. S.K.ACHARYA, ADVOCATE FOR RESPONDENT NO.1;
SMT. H.R.ANITHA, HIGH COURT GOVERNMENT PLEADER)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 07.01.2017 PASSED BY THE HON'BLE
CIVIL JUDGE (JR. DVN) IN O.S.82/2012 AT ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, being the plaintiff No.1 in O.S.No.82/2012 on the file of the Addl. Senior Civil Judge, Udupi, has filed this writ petition challenging an order dated 07.01.2017, in terms of which, the Court allowed an application filed by the defendant under Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as "CPC" for short) read with Section 11(2) of the Karnataka 3 Court Fees and Suits Valuation Act, 1958 (henceforth referred to as "the Act of 1958" for short) and directed the plaintiffs to pay Court fee on the market value of the suit property.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.82/2012 was filed for the relief of declaration to cancel a release deed dated 18.06.2011 purportedly executed in favour of the defendant by Sri. Indra V. Shetty in respect of the 'A' schedule properties and consequently, to partition the 'A' schedule properties into two equal shares. The plaintiffs claimed that the suit 'A' properties belonged to the mother of the defendant and Sri. Indra V. Shetty, husband of plaintiff No.1 and father of other plaintiffs. The mother of the defendant died intestate and the 'A' schedule properties devolved upon the defendant and Sri. Indra V. Shetty, who later died on 12.11.2011. The plaintiffs alleged that the defendant in collusion with the Sub- 4 Registrar had obtained a deed of settlement dated 18.06.2011 by undue influence and misrepresentation. Hence, the plaintiffs sought for the reliefs mentioned above.
4. The suit was contested by the defendant, who claimed that the settlement deed dated 18.06.2011 was validly executed and therefore, the plaintiffs have no right, title or interest. After issues were framed, the defendant filed an application under Section 151 of CPC read with Section 11(2) of the Act of 1958 to determine the proper Court fee to be paid since the plaintiffs themselves had valued the suit 'A' properties at a sum of Rs.86,48,000/-. The application was opposed by the plaintiffs. The Trial Court after considering the contentions urged, held that the plaintiffs had sought for cancellation of a release deed and therefore, the suit ought to have been valued under Section 38 of the Act of 1958. Since the plaintiffs themselves had disclosed the value of the suit 'A' 5 properties at Rs.86,48,000/-, the Trial Court directed payment of the Court fees on a sum of Rs.86,48,000/-.
5. Being aggrieved by the aforesaid order, the present writ petition is filed.
6. Learned counsel for the plaintiff No.1 submitted that the value of Rs.86,48,000/- mentioned in the plaint was for the purpose of determining the jurisdiction of the Court. He contended that since there was no value mentioned in the release deed dated 18.06.2011, the suit had to be valued at a sum of Rs.1,000/- under Section 24(d) of the Act of 1958, as the release deed was executed out of natural love and affection. He contended that the valuation of the suit property under Section 38 of the Act of 1958 is not based upon the market value of the suit property as held by the Hon'ble Apex Court in the case of Satheedevi vs. Prasanna and another [AIR 2010 SC 2777]. He further contended that a Co-ordinate Bench of this Court in Sri. Jaware Gowda and another vs. Sri. Basavaraju N.J. 6 and others [ILR 2015 KAR 4900], held that when no value is mentioned in the instrument, the suit has to be valued under Section 24(d) of the Act of 1958. He hence, contended that the valuation of the suit by the plaintiffs was just and proper and therefore, the impugned order directing recovery of Court fees based on the market value of the property is thoroughly improper.
7. The learned High Court Government Pleader representing the State submitted that the value of the property alone has to be taken into consideration when a document is sought to be cancelled. She submitted that though the word "value of the suit property" is mentioned in Section 38 of the Act of 1958, but in Section 7 of the Act of 1958, it refers to "market value". Therefore, she submitted that the word "value" has to be read as "market value". She submitted that since the plaintiffs themselves mentioned the market value as Rs.86,48,000/- in the plaint, the Trial Court was justified in directing the payment of Court fee on the admitted market value. 7
8. I have considered the submissions made by the learned counsel for the parties.
9. The suit 'A' schedule properties were undisputedly agricultural land, which were assessed to land revenue. The suit properties were valued at a sum of Rs.1,50,095/- for the purpose of Court fee and for the purpose of jurisdiction was valued at Rs.43,24,000/-. The suit was for the relief of declaration to cancel the release deed dated 18.06.2011 and for consequential partition of the suit schedule 'A' properties. Therefore, Section 38 of the Act of 1958 was clearly attracted.
10. For the sake of convenience, Section 38 of the Act of 1958 is extracted below:-
"38. 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 8 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.
Explanation 1.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.
Explanation 2.- In a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property."
11. The Hon'ble Apex Court in the case of Satheedevi, supra, was considering the question, whether 9 the word "value" found in Section 38 was the market value of the property or not and held at paragraph No.30 as follows:-
"30. In view of our analysis of the relevant statutory provisions, it must be held that the judgments of the Division Bench of Madras High Court and of the learned Single Judges in Venkata Narasimha Raju v. Chandrayya (supra), Navaraja v. Kaliappa Gounder (supra), Arunachalathammal v.
Sudalaimuthu Pillai (supra) and Andalammal v. B. Kanniah (supra) as also the judgment of the learned Single Judge of Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla Venkatanarayana (supra) lay down correct law. In the first of these cases, the Division Bench of Madras High Court rightly observed that when there is a special rule in the Act for valuing the property for the purpose of court fee, that method of valuation must be adopted in preference to any other method and, as mentioned above, Section 40 of the Act certainly contains a special rule for valuing the property for the purpose of court fee and we 10 do not see any reason why the expression `value of the property' used in Section 40(1) should be substituted with the expression `market value of the property'."
12. A Co-ordinate Bench of this Court in Sri. Jaware Gowda, supra, was considering the case of cancellation of a palupatti and had valued the suit under Section 24(d) of the Act of 1958. The defendant in the suit claimed that the plaintiffs ought to have paid the Court fee on the market value of the suit property. This Court held that as follows:-
"15. Therefore what follows from the above is, in a suit for declaration under Section 24(a) of the Act where in addition to declaration possession of the property is sought, fee shall be computed on the market value of the property or at Rs.1,000/- whichever is higher. If the prayer is only for declaration and consequential injunction and no relief of possession is sought for, the case would fall under Section 24(b) of the Act. Then the fee shall be computed on one half of the market value of the property or at Rs.1,000/- whichever is higher. Though the suit 11 is styled as a declaration that a particular instrument is not binding on them or is null and void or voidable, in substance what the plaintiffs seek is the cancellation of said instrument. Then the case would fall under Section 38 of the Act. If the suit falls under Section 38 of the Act, it has to be valued under that provision, where the word 'market value' is conspicuously missing."
13. Hence, it is underscored that in a suit for cancellation of a document, it is the value and not the market value of the suit property that has to be taken into consideration for the purpose of determining the Court fee. In the case on hand, the suit properties were agricultural properties situate in Puttur Village, Udupi Taluk, lying within the limits of Udupi City Municipality. The only property, which had a house thereon was the land bearing Sy.No.13/8, measuring 24 cents. It is not known whether this property and other properties are assessed to land revenue. The schedule mentioned in the plaint carries a reference to the assessment of each of the suit properties and the suit is valued at a sum of Rs.1,50,095/- for the 12 purpose of Court fee for each of the reliefs. Likewise, for the purpose of jurisdiction, it is valued at a sum of Rs.43,24,000/- for each of the reliefs.
14. The question whether the value of the suit properties for the purpose of jurisdiction, as mentioned in the suit could be treated as "value" for the purpose of calculating the Court fee payable, can best be answered by referring to Section 7 of the Act of 1958, which is extracted below:-
"7. Determination of market value:-
(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be,-
(a) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part 13 of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue and such revenue is permanently settled - twenty-five times the revenue so payable;
(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and such revenue is settled, but not permanently-twelve and a half times the revenue so payable;
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue,- fifteen times the net profits if any from the land during the year before the date of presenting the plaint or thirty times the revenue payable on the same extent of similar land in the neighbourhood, whichever is lower;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned or the land is a garden or the land is a house site 14 whether assessed to full revenue or not, or is land not falling within the foregoing description-the market value of the land.
Explanation.- The word "estate", as used in this section means any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government, or which in the absence of such engagement, shall have been separately assessed with revenue."
15. Though it was claimed by the plaintiffs in the suit that he had valued the suit under Section 7(2)(a) of the Act of 1958, the Trial Court blissfully ignored this and valued the suit at a sum of Rs.86,48,000/-, which apparently was the market value indicated by the plaintiffs for the purpose of jurisdiction. Hence, impugned order is liable to be quashed. Subject to the plaintiffs demonstrating that the suit properties are assessed to land revenue, the suit shall be valued under Section 7(2) of the Act of 1958.
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16. Hence, the writ petition is allowed. The impugned order dated 07.01.2017 passed by the Addl. Senior Civil Judge, Udupi, is set aside. The Trial Court is directed to calculate the Court fees in view of the observations made in the above paragraphs.
Sd/-
JUDGE PMR