Allahabad High Court
Smt Meetu Paruthi vs Kushank Paruthi on 30 August, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:139591 A.F.R. Reserved On :06.08.2024 Delivered On : 30.08.2024 Court No. - 51 Case :- CIVIL REVISION No. - 75 of 2024 Revisionist :- Smt Meetu Paruthi Opposite Party :- Kushank Paruthi Counsel for Revisionist :- Shantanu Counsel for Opposite Party :- Poorva Agarwal,Punit Kumar Gupta,Satyendra Nath Tripathi Hon'ble Neeraj Tiwari,J.
1. Heard Sri Shantanu along with Sri Raj Kumar Dhama, learned counsel for revisionist and Sri Punit Kumar Gupta, learned counsel for opposite party.
2. Present civil revision has been filed seeking following relief:-
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of the impugned Judgment and Order dated 12.03.2024 passed by the Learned Additional Civil Judge (Senior Division) Court No. 9, Meerut in Original Suit No. 1100 of 2023 (Smt. Meetu vs. Kushank Paruthi) allowing the Application No. 46 Ga filed by the defendant/respondent under Order 7 Rule 11 of C.P.C.; during the pendency of the present revision before this Hon'ble Court, otherwise the revisionist shall suffer irreparable loss and injury."
3. At the very outset, Sri Punit Kumar Gupta, learned counsel for opposite party has raised preliminary objection and submitted that against the impugned order, there is remedy to file appeal under the provisions of The Court-fees Act, 1870 (hereinafter referred to as ' Act, 1870').
4. Sri Shantanu, learned counsel for revisionist has objected the submission made by learned counsel for opposite party and submitted that present revision has been filed against the order passed upon the application filed under Order VII Rule 11 of CPC, therefore, there is no occasion for the revisionist to file appeal and revision is the remedy provided under the law.
5. On merits, he submitted that Original Suit No. 1100 of 2023 has been filed before learned Civil Judge (Senior Division), Meerut under sections 34 & 38 of Specific Relief Act, 1963 to declare void alleged fraudulent Will deed dated 26.03.2021 registered on 20.02.2023 executed by Late Naresh Kumar Paruthi husband of revisionist Smt. Neetu Paruthi. Further, for seeking declaratory decree and permanent injunction in half share of the revisionist in the property belonging to Late Sri Naresh Kumar Partuthi after his death. After filing of suit, application under Order VII Rule 11 of CPC has been filed by defendant, which was partly allowed with direction to plaintiff to deposit court fee.
6. He next submitted that so far as deficiency of stamp fee is concerned, it may not be decided upon the application under Order VII Rule 11 of CPC rather issue is required to be framed after submission of written submissions and should have been decided along with other issues so framed.
7. He firmly submitted that as present suit has been filed to declare the Will deed void and not for cancellation of the same, therefore, no court fee is required and only court fees of Rs. 200/- as paid by the plaintiff is sufficient. He next submitted that similar issue was before the Division Bench judgment of this Court in the matter of Pramila Tiwari vs. Anil Kumar Mishra and 4 others; Neutral Citation.-2024:AHC:85067-DB as to whether provisions of compulsory registration of Will is prospective or retrospective and the Court has held that registration of Will is not required in State of Uttar Pradesh. Based upon said judgment, learned counsel for revisionist submitted that once the registration of Will is not necessary, it shall not required to be cancelled and only declaration of void is sufficient.
8. He further submitted that while deciding the application under Order VII Rule 11 of CPC, only plaint is required to be seen and no defence may be considered by the Court. Here in present case, Court has considered the defence so raised by defendant in application under Order VII Rule 11 of CPC, therefore, order is bad and liable to be set aside.
9. Per contra, Sri Punit Kumar Gupta, learned counsel for opposite party firmly submitted that after filing of suit, once the issue of court fees is raised, it is required to be decided first and then Court may proceed to decide the remaining issues, so framed. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of State of U.P. vs. Mahant Shiva Nand Giri and others (Civil Revision No. 599 of 1988).
10. He next submitted that in case Will deed having money value, its cancellation or declaring the said void is having same meaning and effect. Once a Will deed is put-forth for execution either registered or unregistered, it shall be treated an instrument having money value and court fees is required to be paid. In support of his contention, he placed reliance upon the judgment of this Court in the matter Kailash Chand vs. Vth A.C.J., Meerut and others (Case No. F.A.F.O. No. 344 of 1997), Rajni Swami vs. Shakuntala Sharma (Case No. : F.A.F.O. No. 1480 of 2009) and Sudha Sharma vs. Shashi Bala Sharma ( Case No. : F.A.F.O. No. 3382 of 2011). He also pointed out that in light of Section 7 Sub-Section iv(a) of Act, 1870, it is very clear that either suit is for cancellation or adjudging it to void, in both eventuality, court fee is required, therefore, argument raised by learned counsel for revisionist is having no force.
11. He further submitted that so far as last argument of counsel for revisionist about the consideration of plaint only, while deciding application under Order VII Rule 11 of CPC is concerned, there is no dispute on this point. It has to be decided only from the plaint and it is required on the part of Court concerned to test the plaint on the principles of Order VII Rule 11 of CPC even if no application is filed. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of State of West Bengal vs. Union of India passed in Original Suit No.4 of 2021, delivered on 10.07.2024.
12. I have considered rival submissions made by learned counsels for parties and perused the records as well as judgments cited above.
13. So far as preliminary objection is concerned, this Court is of the view that as the revisionist has challenged the impugned order based upon the application under Order VII Rule 11 of CPC, therefore, revision is maintainable and even otherwise alternative remedy is not the absolute bar. Therefore, Court is proceeded to decided the case on merits.
14. The defendant-respondent has filed application under Order VII Rule 11 of CPC, which was partly allowed in light of Order VII Rule 11 (c) of CPC, which is quoted below:-
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;"
15. From the perusal of Order VII Rule 11 (c) of CPC, it is apparently clear that in case it is found that the relief claimed is under valued, Court may provide liberty to correct valuation within the time and in case of failure, plaint may be rejected. In the present case, Court while partly allowing the application has granted time to remove deficiency of stamp.
16. First issue is as to whether the valuation of plaint has to be seen at the first instance or after framing the issue on this point. Law is very much clear that once the objection is raised about insufficiency of Court fee, it is required on the part of Court to decide the same first and then proceed to decide other issues.
17. The very same view has been taken by this Court in the matter of Mahant Shiva Nand Giri (Supra). Relevant paragraph No. 12 is quoted below:-
"12. Sub-section (4) of Section 6 gives aright to the defendant to raise an objection about insufficiency of the court fee. Before proceeding with the suit, the court is bound to dispose of the said objection. If the defendant fails to raise any such objection or if he raised but failed to satisfy the court then the field of objection gets occupied by Section 6(3). It requires an objection to be filed by an officer mentioned in Section 24-A of the Act."
18. The second issue raised by learned counsel for petitioner about the filing of suit for void and not for cancellation, therefore, no court fee is required is also squarely covered itself from section 7 sub-section iv(a) of Act, 1870, which clearly says that either suit is for cancellation or adjudging it to void, in both eventuality, court fee is required, therefore, there is no confusion in the statute. For ready reference, Section 7 sub-section iv(a) of Act, 1870 is being quoted below:-
"For cancellation or adjudging void instruments and decrees.- (iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value"
19. Apart that, this issue has also been considered by Division Bench of this Court in the matter of Rajni Swami (Supra). Relevant paragraph is quoted below:-
"5. The question is whether a Will can be regarded as a legal document which makes any property secure or safe. Section 2(h) of the Indian Succession Act, defines a Will as a "legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. "It is well known that during the life-time of the executant, the Will is ambulatory. It could be revoked by him at his will. Accordingly, a Will does not secure any property during the lifetime of the executant. Section 7(iv-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an instrument secures money or property having money value within the meaning of Section 7(iv-A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether a particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this Section with Section 39 of the Specific Relief Act. If this is so, as we think, then there is little doubt that on the date of the institution of the suit in this case the Will did secure property. Ganga Prasad the testator had died, and after his death the Will became irrevocable. Upon his death his estate would be disposed of in accordance with his directions in the Will. Accordingly it can be said that on the death of the testator the Will secures money or property having money value. We, therefore, hold that the court-fee paid on the plaint and the memorandum of appeal is insufficient. The amount of deficiency mentioned in the office report should now be paid by the plaintiff within three months.
15. We have considered the law. It is our duty to fit the law into the fact to come to a definite finding. There is a big gap between the declaration simplicitor and relief in the garb of declaration. If a person makes a prayer to declare right, title or interest of a property in his favour then it can be construed as declaration simplicitor but when a plaintiff seeks any declaration to disentitle others" right into a property, such type of circumvent prayer cannot be treated to be declaration simplicitor. In other words, he is not asking any relief for himself but want to prevent his opponent from enjoying fruit of the property. Therefore, such type of relief is virtually in the nature of injunction at first with the nomenclature of the "declaration." Therefore, it is required for the Court to go into the real nature of dispute arising out of the plaint to ascertain the cause and incidental cause which helps it. A Will is execution of document of a testator to give his property to a person of his choice. Such Will will be enforceable only after the death of the testator. In some of the States of India, grant of probate by the appropriate court of law on the Will is compulsory and some of the State it is optional. In the State of U.P., obtain probate on the Will is optional, therefore, as soon as the testator dies and Will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such Will. If such person seeks a probate before the Court by filing it, no question of ad valorem court-fee will be applicable but it will be paid as soon as Court will grant such probate in his favour. In the present case, the defendant-respondent never approached to the Court to obtain a probate but enjoying the property as successor under the Will. Now, if such Will is declared by the Court as null and void, right of the person in the property or properties under the Will, will be extinguished. Therefore, the principle of securing property under the Will will be attracted. Therefore, under no stretch of imagination we can hold and say that the suit can be entertained on the basis of the fixed court-fees."
20. Again, in the matter of Kailash Chand (Supra), Court has taken similar view. Relevant paragraph is quoted below:-
"19. We have already held above that so long as the will has not become operative on account of death of the testator, the will is not a document or an instrument securing property having money value but once the testator dies and a suit is filed after the death of the testator, that will become an instrument securing the property having money value. As in the instant case, admittedly the suit has been filed long after the death of the testator, the will has become operative and, therefore, the will is an instrument or document securing property having money value. Since Section 7 (IVA) (U. P. Amendment) specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging void or voidable an instrument securing property having money value. Article 17 (iii) of Schedule II of the Court Fees Act shall not be applicable. In our view, therefore, there is no error in the order passed by the trial court.
20. Consequently the appeal fails and is hereby dismissed. We, however, make no order as to costs."
21. In the matter of Sudha Sharma (Supra), Court has taken similar view. Relevant paragraph is quoted below:-
"10. Now as regards the argument of learned counsel for the appellant with regard to applicability of Article 17(iii) Court Fees Act is concerned, it would be useful to quote para-10 of the report of Kailash Chand's case (supra), which is reproduced as under:
10. On a bare perusal of Article 17(iii), it would appear that this Article shall be applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. The question is whether in case where a decree declaring the will as null and void is sought, there is any provision under the Court Fees Act to cover the question of payment of Court Fees on the relief of such declaration. In case the answer to the question is that there is no other provision under the Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will on the question of payment of Court fees, then Article 17(iii) of Schedule II of the Court Fees shall be applicable and if such relief is covered by any other provisions of the Court Fees Act, then provisions of Article 17 (iii) of Schedule II will not be applicable. Careful reading of Section 7(iv-A) makes it abundantly clear that it also covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The question, therefore, is whether a will would be treated as an instrument securing money or other property having such value. This question specifically arose before the Full Bench of this Court in the case of Smt. Bishnu Shri v. Smt. Suraj Mukhi and others, AIR 1966 All 563 (supra). The Majority view of the Court after considering the provisions of Indian Succession Act and the Court Fees Act was that the word 'instrument' in Section 7(iv-A) includes formal or legal documents in writing. It is sufficiently broad to include wills also. In para 7 the Court held that:
The question is whether a will can be regarded as a legal document which makes any property secure or safe. Section 2(h) of the Indian Succession Act define a will as a "legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. It is well known that during the life-time of the executant, the will Is ambulatory. It could be revoked by him at his will. Accordingly a will does not secure any property during the lifetime of the executant. Section 7(iv-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an Instrument secures money or property having money value within the meaning of Section 7(iv-A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this section with Section 39 of the Specific Relief Act. If this is so we think, then there is little doubt that on the date of the institution of the suit in this case the will did secure property. The Court further held that:
"the word "securing" is the present participle from of verb "to secure". It has got various meanings (Words and Phrases) (Permanent Edition), Vol. 38 page 45-8) "Secures" as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the vendee secures the payment of purchase money, means not a payment in money but the giving by the vendees of something by means whereof payment at some future time can be procured or compelled (Ibid), Webster defines "secures" to mean "to make certain" "to put beyond hazard". To secure" is to make safe, to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage; it also means to get safely in possession, to obtain to acquire certainly, as to secure an inheritance or a price [Ibid 459]."
22. Now coming to the present case. The facts are akin to the facts of judgment reproduced here-in above. In the present case too, alleged Will deed was executed on 26.03.2021 by the husband of revisionist and also registered on 20.02.2023 and to declare the void, present suit has been filed restraining others to claim any right over the half of the property referred in Will deed. Certainly, a suit has been preferred after death of testator, therefore, in the light of Section 7 (iv-a) of Act, 1870, it is having money value and court fee is liable to be paid.
23. Another issue was as to whether while deciding the application under Order VII Rule 11 of CPC, defence was taken care of by the Magistrate or not. From the perusal of application as well as impugned order, it is apparently clear that so far as defence is involved, the court has not accepted the same, but partly allowed the application only on the ground of insufficiency of court fee, which is strictly in accordance with Order VII Rule 11(C) of CPC. Therefore, I found no infirmity in the impugned order on this point also.
24. Not only this, even if there is no application under Order VII Rule 11 of CPC, it is required on the part of Court to see the ingredients of Order VII Rule 11 of CPC and if it is found, plaint may be rejected.
25. Apex Court has also taken similar view in the matter of State of West Bengal (Supra),. Relevant paragraph is quoted below:-
"26. In view of the word 'shall' used in the provisions, a duty is cast on the court to examine as to whether the plaint is hit by any of the infirmities provided in the six clauses of Order VII Rule 11 of the CPC. A duty is cast on the court to reject the plaint even without the intervention of the defendant. Reference in this respect could be made to the judgment of this Court in the case of Sopan Sukhdeo Sable (supra)."
26. Therefore, in the light of law as well as facts discussed here-in above, I found no infirmity or illegality in the impugned order.
27. Writ petition lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 30.8.2024 Sartaj