Karnataka High Court
Sri. Dyamanna Adopted Son Thamannappa ... vs Sri Basappa S/O Gurulingappa Gaddi on 18 December, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105537 OF 2023 (GM-CPC)
BETWEEN:
SRI. DYAMANNA ADOPTED SON
THAMANNAPPA YELLIGUTTI
ORIGINAL FATHER GURULINGAPPA GADDI
AGED ABOUT 52 YEARS
OCC: AGRICULTURE
R/O ROLLI PRESENTLY RESIDING AT MANNIKERI
TQ: BILAGI, DIST: BAGALAKOTE
...PETITIONER
(BY SMT.VIDYAVATI.M.KOTTURSHETTAR, ADVOCATE)
AND:
SRI BASAPPA S/O GURULINGAPPA GADDI
AGED ABOUT 49 YEARS
OCC: AGRIL
R/O DHAVALESHWAR
Digitally signed
by
MOHANKUMAR
TQ BILAGI, DIST BAGALKOTE
MOHANKUMAR B SHELAR
B SHELAR
Date:
2023.12.27
11:19:38 +0530
...RESPONDENT
(BY SRI.MRUTYUNJAYA.S.HALLIKERI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A) CALL FOR THE
RECORDS OF O.S. NO. 178/2020 PASSED BY I ADDL. SENIOR
CIVIL JUDGE AND JMFC, BAGALAKOTE AS PER ANNEXURE AND
B) ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING
THE ORDER DATED. 14.08.2023 ON I.A NO. III IN O.S. NO.
178/2020 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND
JMFC, BAGALKOTE AS PER ANNEXURE-J AND FURTHER ISSUE
A DIRECTION TO ALLOW THE I.A. NO. III FILE BY THE
PETITIONER/PLAINTIFF.
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THIS PETITION HAVING HEARD AND RESERVED FOR
ORDERS ON 12.10.2023 COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the plaintiff assailing the order passed on an application filed under Order XIV Rule 5 read with Section 151 of CPC requesting the Court to frame an issue as to whether the counter claim set up by the defendant seeking relief of declaration which is valued under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short 'the Act') is correct and proper one.
2. The said application is rejected by the Court of first instance by recording a finding that relief of declaration claimed by the defendant by way of counter claim on the basis of Will is properly valued under Section 24(d) and therefore, no issue would arise for consideration. The said order is under challenge.
3. Learned counsel appearing for the petitioner placing reliance on the judgment rendered by the coordinate Bench in W.P.No.3180/2014 has questioned the 3 correctness of the order under challenge by contending that since defendant has sought relief of declaration, the prayer made in the counter claim would fall within the ambit of Section 24(b) of the Act. Reiterating the grounds urged in the petition, she would point out that the properties covered under the Will are immovable properties and since relief of declaration is based on Will, court fee has to be paid under Section 24(b) of the Act and not under Section 24(d). She would vehemently argue and contend that clause (b) of Section 24 makes it manifestly clear that court fee payable in respect of relief of declaration by which neither possession of the property nor any consequential relief of injunction with respect thereto is sought, the court fee still has to be determined under Section 24(b) and therefore, she would contend that learned Judge erred in rejecting the application.
4. Per contra, learned counsel appearing for the respondent supporting the reasons assigned by the learned Judge would contend that the subject matter of the counter claim is a Will and therefore, he would 4 vociferously argue and contend that the subject matter of counter claim is in regard to validity of the Will and not the properties covered under Will. Therefore, he would contend that the subject matter does not fall under Section 24(b) but would fall under Section 24(d) and therefore, it was not necessary to furnish the market value of the immovable property as required by proviso to Section 50 of the Act. Therefore, he would contend that the Court has rightly examined the relief sought in the counter claim and has applied correct law while rejecting the application.
5. To buttress his arguments, he has placed reliance on the following judgments:
1) K.Nagaraj vs. Sri. Muniswamy - W.P.No.3351/2019;
2) V.S.Balasubramanyam and Another vs. L.K. Trust and Others - ILR 2009 Kar 4276;
3) Master K.P.Ponnappa & Another vs. K.P. Poovaiah & Another - ILR 2000 Kar 3382;
4) Jaware Gowda & Another vs. Basavaraju N.J. and Others - 2015(5) Kar.L.J. 71.5
6. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. I have given my anxious consideration to the judgments cited by both the counsels.
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.
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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.
9. The coordinate Bench of this Court in an identical case has given a quietus to the said controversy. This Court in the case of Basalingappa Ningappa and Others vs. Deputy Commissioner, Dharwar and Another1, while examining the issue relating to valuation of relief of declaration to declare acquisition proceedings as null and void held that the relief sought by the plaintiff is with reference to notification for acquisition. Therefore, 1 RSA.No.1137/1975 Dtd: 30.10.1981 7 coordinate Bench found that the subject matter of the suit is validity of acquisition proceedings and has no nexus to the properties covered under the acquisition proceedings and therefore, held that the suit does not fall under Section 24(b) but falls under Section 24(d). The coordinate Bench further held that proviso to Section 50(1) is not attracted and there need not be two valuations, one for the purpose of Court fee and another for the purpose of jurisdiction.
10. A similar view was also taken by the coordinate Bench of this Court in the reported judgment in the case of Smt. Dhondubai vs. Fakirappa Hanamantappa Medar by LRs. and Another2. In the said case, the suit was filed questioning the order of the Assistant Commissioner and a declaration was sought that the said order is null and void. This Court held that Section 24(d) applies and not Section 24(a).
11. In the light of the law declared by this Court in the above cited judgments, let me examine the relief 2 2000 (3) KLJ SN 2 8 sought in the counter claim. The defendant has set up a counter claim and has sought relief of declaration to declare that deceased Hanamavva has executed her last Will on 30.12.2003. 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). The judgment cited by the learned counsel for the petitioner has no application to the present case on hand. The Court of first instance while examining the objections raised by the plaintiff has rightly negatived the said prayer and therefore, this Court would find that trial Court was justified in rejecting the 9 application. The reasons assigned by the learned Judge while rejecting the application is found to be in consonance with the principles laid down by this Court in the above cited judgment. Therefore, I do not find any illegality in the order under challenge.
12. Accordingly, I pass the following:
ORDER The writ petition is devoid of merits and accordingly, stands dismissed.
The pending interlocutory application, if any, does not survive for consideration and stands disposed of.
Sd/-
JUDGE CA