Karnataka High Court
Sangameshgouda Mudigoudara S/O ... vs Basavanneppa Karader S/O Shivabasappa on 9 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
R
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104722 OF 2022 (GM-CPC)
BETWEEN
SANGAMESHGOUDA MUDIGOUDRA,
S/O. BASAPPA,
AGE: 72 YEARS,
BASAVA SADANA, NO.963,
3RD MAIN, 1ST CROSS,
TARALABALU BADAVANE,
DAVANGERE-02.
...PETITIONER
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND
1. SHRI BASAVANNEPPA
S/O. SHIVABASAPPA KARADER,
SINCE DECEASED REPRESENTED BY HIS
LEGAL HEIRS
SAROJA
1(A) SHRI SHIVAMURTEPPA
HANGARAKI S/O. BASAVANNEPPA KARADER,
Location: HIGH
AGE: 70 YEARS, OCC: AGRICULTURE,
COURT OF
KARANTAKA
R/O. HIREMAGANUR VILLAGE,
DHARWAD
BENCH TQ: RANEBENNUR, DIST: HAVERI-581115.
1(B) SHRI GURUMURTEPPA
S/O. BASAVANNEPPA KARADER,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. HIREMAGANUR VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
1(C) SHRI JAYANNA
S/O. BASAVANNEPPA KARADER,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. HIREMAGANUR VILLAGE,
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TQ: RANEBENNUR, DIST: HAVERI-581115.
1(D) SHRI VIRUPAKSHAPPA
S/O. BASAVANNEPPA KARADER,
AGE: 66 YEARS, OCC: LIC AGENT,
R/O. HIREMAGANUR VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
1(E) SHRI BASAVARAJ
S/O. BASAVANNEPPA KARADER,
AGE: 61 YEARS, OCC: ENGINEER,
R/O. HIREMAGANUR VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI-581115.
2. THE STATE OF KARNATAKA,
REP. BY DEPUTY COMMISSIONER,
HAVERI DISTRICT, HAVERI-581110.
3. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS,
HAVERI DISTRICT, HAVERI -581110.
4. BLOCK EDUCATIONAL OFFICER,
RANEBENNUR TALUK,
RANEBENNUR-581115, DIST: HAVERI.
...RESPONDENTS
(BY SRI. VINAY S. KOUJALAGI, ADV. FOR R1(A-E);
SRI. PRAVEEN K. UPPAR, AGA FOR R2-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI AND QUASH IMPUGNED ORDER DATED 28-07-2022
PASSED BY III ADDL. SENIOR CIVIL JUDGE, RANEBENNUR IN
M.A.04/2020 VIDE ANNEXURE-F, AS NULL AND VOID.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 01.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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CAV ORDER
1. In this writ petition, the petitioner approached
this Court to issue a writ of certiorari and quash the
impugned order dated 28.07.2022 passed by the III
Additional Senior Civil Judge, Ranebennur in
M.A.No.4/2020 vide Annexure-F as null and void and issue
any other writ or direction as the Hon'ble Court deems fit
in the circumstances of the case.
2. The factual matrix of the case is that
respondent No.1/plaintiff filed a suit in O.S.No.136/2018
for the relief of cancellation of both the registered gift
deeds dated 01.09.1993 executed by the plaintiff in favour
of defendant No.4 in respect of the suit land and another
dated 23.03.2005 executed by defendant No.4 in favour of
defendant No.3 in respect of the very suit land. The suit
land is described in the schedule as land bearing
Sy.No.23A/11A/1 measuring 14 gunta situated at
Hiremaganur village in Ranebennur taluk.
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3. It is contended in the suit that the suit land
belonged to the plaintiff but the name of Karabasappa was
entered nominally as joint owner in the RTC of the suit
land. Defendant No.4 was much acquainted with the
plaintiff and he intended to construct marriage hall at
Hiremaganur village in the name of father of defendant
No.4. Accordingly, defendant No.4 had requested the
plaintiff to gift the suit land. In this regard, deliberations
took place between the plaintiff and defendant No.4 and
they have arrived at a conclusion that the plaintiff has to
gift his suit land in the memory of his wife
Smt.Shanthamma through registered gift deed to
defendant No.4 and defendant No.4 on his cost has to
convert the suit land to non-agricultural purpose and to
construct the marriage hall in the name of father of
plaintiff Basappa Mudigoudar and in the memory of
Shanthamma, the wife of plaintiff. It was also an
understanding of the parties that the name of
Shanthamma, wife of plaintiff has to be carved in the
stone slab and that the stone slab was to be fixed in the
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conspicuous place of the front wall of marriage hall.
Marriage hall should be kept for public use and there was
an agreement between the plaintiff and defendant No.4
that defendant No.4 should not alienate the suit land to
others in any manner and should not use it for any other
purpose. Imposing such conditions, stipulations and terms,
the plaintiff had gifted the suit land in favour of defendant
No.4 on 01.09.1993. Defendant No.4 though accepted the
said gift, has failed to comply the terms and conditions of
the gift. He neither constructed a marriage hall nor kept or
retained the suit land as it was. Instead defendant No.4
gifted the suit land to defendant No.3 by executing the
registered gift deed on 22.03.2005 for the play ground of
school and hence the said gift deed is illegal and
defendants No.1 to 3 acquire no title over the suit land
since there is violation of conditions of the gift deed dated
01.09.1993.
4. It is also contended that initially the plaintiff
had filed a suit in O.S.No.401/2012 for cancellation of both
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gift deeds and possession of the suit land. In the said suit,
plaint was ordered to be returned to present the same
before the District Court, Haveri and it was numbered as
O.S.No.3/2012 which was withdrawn with a liberty to file a
fresh suit. Accordingly, the fresh suit in O.S.No.1/2014
was filed before the District Court, Haveri. By order dated
24.08.2015, again the District Court, Haveri ordered to
return the plaint to present it before the proper Court.
Hence, the plaint was presented before the Civil Court,
Ranebennur and it was numbered as O.S.No.264/2015.
Since the proviso of Section 80(1) of CPC were not
complied with, the said suit was withdrawn with liberty to
file a fresh suit after compliance of issuance of notice
under Section 80(1) of CPC and thereafter issued the
notice and the same was served. Hence, the present suit is
filed for cancellation of both gift deeds and for possession
of the suit land from defendants No.1 to 3.
5. Defendant No.4 filed written statement denying
the averments made in the plaint and contended that the
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suit is not maintainable and it ought to have been filed
before the appropriate Court and Court has no pecuniary
jurisdiction to entertain the suit and suit is also barred by
limitation.
6. Based on the pleadings of the parties, the Trial
Court framed the issues and issue No.5 reads as follows:
"Whether 4th defendant proves that, the suit is
barred by law of limitation and further proves
that, this Court has no pecuniary jurisdiction to
entertain the suit?"
7. Thereafter, the Trial Court allowed the parties
to lead evidence on issue No.5 which was framed as
preliminary issue. Trial Court having considered the issue
No.5, evidence of defendant No.4, who has been examined
as DW.1, document marked as Ex.D.1 and cross-
examination of DW.1, comes to the conclusion that the
Court has no pecuniary jurisdiction and ordered to return
the plaint to the plaintiff to present the same before the
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competent Court within 30 days subject to payment of
court fees and point of limitation.
8. Being aggrieved by the order passed by the
Trial Court, a Miscellaneous Appeal was filed under Order
XLIII Rule 1 read with Section 96 of CPC. The First
Appellate Court having considered the pleadings and also
the grounds urged in the appeal memo, framed the
following points for consideration:
"Point No.1: Whether the trial court failed to
appreciate the provisions of Karnataka Court Fees
and Suits Valuation Act in respect of pecuniary
jurisdiction of the Court?
Point No.2: Whether the trial court fell in error in
mixing the point of limitation and jurisdiction in a
single issue No.5?
Point No.3: Whether the interference of this Court
is warrant?
Point No.4: What order or decree?"
9. The First Appellate Court having reassessed the
material available on record including the pleadings and
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contentions, answered points No.1 to 3 as affirmative and
comes to the conclusion that the Trial Court has failed to
consider the provisions of the Karnataka Court Fees and
Suits Valuation Act, 1958 (hereinafter referred to as 'Act'
for brevity) in respect of pecuniary jurisdiction of the Court
and also comes to the conclusion that the limitation is
mixed point of question of fact and law and the Trial Court
has committed an error in maxing the point of limitation
and jurisdiction in a single issue i.e. issue No.5. Hence,
comes to the conclusion that interference of the First
Appellate Court is required and set aside the order of the
Trial Court and directed the Trial Court to reframe issue
No.5 as a separate point of limitation and also jurisdiction
and decide the same in accordance with law.
10. Being aggrieved by the order passed by the
First Appellate Court, the present writ petition is filed.
11. The main contention in this writ petition is that
the First Appellate Court passed the impugned order
contrary to the provisions of law and the Trial Court has
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rightly held that the Court has no pecuniary jurisdiction
considering the prayer made by the plaintiff. It is also
contended that the Trial Court in para 11 of its order has
rightly held that the suit to be valued based on the market
value of the property as the suit property is non-
agricultural land and it is affordable to calculate the
market value under Section 38 of the Act. It is also
contended that the First Appellate Court has wrongly held
that the value of the property mentioned in the gift deed
i.e. Rs.1 lakh is to be taken for the purpose of valuation
and the same is wrong and contrary to the provisions of
Sections 7, 24 and 38 of the Act.
12. Learned counsel for the petitioner also during
his argument vehemently contends that even the suit is
filed for the relief of possession and suit is not valued and
it ought to have valued as separate court fee for
possession also. Counsel in support of his argument,
would vehemently contend that the Trial Court has passed
a detailed order and even an elaborate discussion was
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made while passing such an order and the First Appellate
Court has committed an error in reversing the same.
13. In support of his argument, he has relied upon
the judgment of this Court in the case of
Smt.Damegunta Rajeshwaramma and Another vs.
Smt.Jayalakshmamma and Others reported in 2010
(2) KCCR 1429 wherein this Court held that as per
Section 38 of Act, when the suit is filed for cancellation,
court fee is payable on the market value or the value as
indicated in the document and held that the court fee has
to be determined on the basis of the market value of the
property as on the date of the suit and not the
consideration shown in the document.
14. He has also relied upon the judgment in the
case of Mr.V.Prabhakar vs. Mr.K.Raja and Others
reported in 2013 (1) KCCR 570 and brought to notice of
this Court regarding Section 38 of the Act, wherein it has
been held that the expression 'value of the subject matter'
connotes not value of the property specified in document
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but it is real and actual value at the time of filing the suit.
In the said judgment, it is held that the court fee has to be
computed on the basis of the market value of the
property, which is the subject matter of the sale deed in
question as on the date of the presentation of the plaint
and the market value has to be determined in accordance
with Section 7 of the Act.
15. Per contra, learned counsel for the respondent
No.1/plaintiff would vehemently contend that the First
Appellate Court has taken note of the judgment of the
Hon'ble Apex Court in the case of Satheedevi vs.
Prasanna and Another reported in (2010) 5 SCC 622
and has also elaborately discussed the judgment in the
case of R.Rangaiah and Another vs. Thimma Setty
and Others reported in 1963 (1) MLJ 671 of this Court
and distinguished the judgment which have been relied
upon by the other side and rightly comes to the conclusion
based on the judgment of the Hon'ble Apex Court and
judgment of this Court that valuation of the property used
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in Section 38(1) of the Act refers the valuation mentioned
in the document but not actual or real market value. He
further submits that the Trial Court has not properly
appreciated the facts and has wrongly concluded that the
plaintiff has to pay the court fee on the actual market
value.
16. It is also contended that the provisions of
Section 7 of the Act stipulates that 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 and insofar as it forms part of
the estate paying annual revenue to Government the
market value of the land for the purpose of different suits
mentioned therein shall be 25 times the revenue payable.
The proviso of Section 7 of the Act is applicable not only to
the relief that will have to be valued under Section 24 and
other provisions of the Act but to also under Section 38 of
the Act. The First Appellate Court having considered the
judgment in Satheedevi's case laid down the law that the
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value of the property used in Section 38(1) of the Act
refers the valuation mentioned in the instrument but not
the actual and real market value. When such judgment
was distinguished, the question of interfering does not
arise.
17. Having heard the petitioner's counsel and the
counsel for the respondent/plaintiff, the following point
would arise for consideration of this Court:
"Whether the First Appellate Court has
committed an error in reversing the finding of
the Trial Court and whether it requires issuance
of writ of certiorari to quash the impugned order
dated 28.07.2022?"
18. Having taken note of the material on record, it
is not in dispute that the suit is filed for the relief of
cancellation of both the registered gift deeds executed by
the plaintiff in favour of defendant No.4 and defendant
No.4 in turn executing the gift deed in favour of defendant
No.3 in respect of the very same suit land. It is also not in
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dispute that the transactions are taken place in respect of
same suit schedule property. It is also not in dispute that
the contention of the plaintiff that in terms of gift deed
dated 01.09.1993 the defendant No.4 did not acted upon
and he violated the conditions of the gift deed. It is also
important to note that the defendant No.4 took a specific
defence in the written statement that the suit is barred by
limitation as well as the Court has no pecuniary jurisdiction
and accordingly mixing up both the limitation as well as
pecuniary jurisdiction of the suit, a common issue has
been framed. The same has been answered by the Trial
Court and the based on the document at Ex.D.1 issued by
the competent authority and having taken note of the suit
land is converted and total extent of suit property is 14
guntas and it costs 1416.38 x 800 sq.mtrs., which comes
to Rs.11,33,104/-, comes to the conclusion that the Court
has no pecuniary jurisdiction and there is patent error of
jurisdiction and that the suit has to be presented before
the proper forum. The same is reversed by the First
Appellate Court distinguishing the material facts and
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considering Section 7 of the Act as also Section 38 of the
Act.
19. Before considering the issue involved between
the parties, it is appropriate to extract Sections 7 and 38
of the Act:
"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
section 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 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
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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 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."
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"Section 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
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 to her
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.
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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.""
20. Having read Section 7 of the Act, the same is
an exception of the determination of market value and
proviso is very clear that fee payable under this Act
depends on the market value of any property, such value
has to be determined as on the date of the presentation of
the suit and Sub-clause (2) also refers the instances (a) to
(d) and also explanation to the word 'estate'.
21. Having considered Section 38 of the Act, when
the relief is sought for cancellation of gift deeds 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 be
computed on the value of the subject matter of the suit,
and such value shall be deemed to be, if the whole decree
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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 and Sub-clause (2) also
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 and 2 also very clear regarding cancellation
of a decree and possession of any property, the fee shall
be computed as in a suit for possession of such property.
22. Having read both the provisions, this Court has
to take note of the determination of the market value as
well as payment of court fee. The main ground urged in
the suit also is that pecuniary jurisdiction and the main
contention is that the suit exceeds the limit of pecuniary
jurisdiction of Rs.5 lakhs and hence the suit is not
maintainable.
23. No doubt, the gift is valued at Rs.30,000/- in
respect of first gift deed and in respect of second gift deed
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it is valued for Rs.1 lakh. It is also important to note that
no doubt the judgment which have been referred by the
petitioner's counsel in the cases of Damegunta and
V.Prabhakar, the Single Bench of this Court held that
court fee has to be determined on the basis of the market
value of the property as on the date of the suit and not the
consideration shown in the document.
24. It is also settled law that the plaintiff has to pay
court fee on the market value of the property as on the
date of presentation of the suit in terms of Section 7 of the
Act. It is also important to note that the suit is filed
seeking the relief of cancellation of document and hence
the Court has to take note of Section 38 of the Act. In a
suit for cancellation of document i.e. settlement deed, it is
held that court fee has to be paid not on the value of the
property specified in the document but on the actual
value. The same is decided in a Division Bench judgment
in the case of R.Rangaiah. No doubt, it is also held in the
judgment reported in 1974 (2) KLJ 225 that if it is a case
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for cancellation of sale deed, the court fee has to be paid
on the market value of the property and not considering
the value mentioned in the same.
25. The judgment of the Apex Court in the case of
Satheedevi which has been referred by the First Appellate
Court while considering Kerala Court Fees and Suits
Valuation Act, 1959 Section 40 where a suit is filed for the
relief of cancellation of power of attorney and sale deed,
the First Appellate Court has made discussion with regard
to valuation of the property for expression value of the
property for which the document was executed and held
that in such suit court fee is required to be paid on the
value of the property for which the document was
executed and not the market value and also discussion
was made with regard to Section 7(1) and held that it
becomes clear that the rule enshrined therein is a clear
departure from the one contained in Section 7 read with
Sections 25, 27, 29, 30, 37, 38, 45 and 48 which provide
for payment of court fee on the market value of the
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property. Section 40(1) of Kerala court fees act, 1959 is
para materia in respect of Section 38 of the Karnataka
Stamp Act.
26. The First Appellate Court also while considering
the issue involved between the parties in detail discussed
the same and the judgment of Division Bench of this Court
in R.Rangaiah and the judgment of the Hon'ble Apex
Court in the case of Satheedevi were also taken note of.
In Satheedevi's case at para 12, it is held that the first
and primary rule of construction is that the intention of the
legislature must be found in the words used by the
legislature itself. If the words used are capable of one
construction, only then it would not be open to the courts
to adopt any other hypothetical construction on the ground
that such hypothetical construction is more consistent with
the alleged object and policy of the Act. In para 20 also, it
is held that if the legislature intended that fee should be
payable on the market value of the subject matter of the
suit filed for cancellation of a document which purports or
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operates to create, declare, assign, limit or extinguish any
present or future right, title and interest, then it would
have, instead of incorporating the requirement of payment
of fees on value of subject matter, specifically provided for
payment of court fee on the market value of the subject
matter of the suit as has been done in respect of other
types of suits mentioned in Sections 25, 27, 29, 30, 37,
38, 45 and 48. It is also held that the legislature may have
also, instead of using the expression "value of the property
for which the document was executed", used the
expression "value of the property in respect of which the
document was executed". However, the fact of the matter
is that in Section 40(1) the legislature has designedly not
used the expression 'market value of the property'.
Further, in para 21, it is held that if the interpretation
placed by the Trial Court and the High Court on the
expression "value of the property for which the document
was executed" is accepted as correct, then the word
'value' used in Section 40(1) of the Act will have to be
read as 'market value' and we do not see any compelling
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reason to add the word 'market' before the word 'value'
in Section 40(1) of the Act.
27. The Hon'ble Apex Court also discussed the
judgment of Division Bench of this Court in R.Rangaiah's
case and particularly in para 33, an elaborate discussion
was made and held that when the suit is filed for the relief
of cancellation of a document which provides for payment
of court fee, in suits brought for cancellation of other
documents such as a deed of settlement, gift deed or trust
deed, it would not be appropriate to regard those
documents as executed for a consideration or a specified
amount and those cases would not be cases in which there
would be any value for which the document is executed. In
a case of gift deed, it is clear that same is not for
consideration and the same is conveying the property for
love and affection.
28. The Hon'ble Apex court in Satheedevi's case
considering these different issues of different High Courts
in para 30 held that in view of our analysis of the relevant
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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 vs.
Chandrayya, Navaraja vs. Kaliappa Gounder,
Arunachalathammal vs. Sudalaimuthu Pillai and
Andalammal v. B. Kanniah as also the judgment of the
learned Single Judge of Andhra Pradesh High Court
in Allam Venkateswara Reddy vs. Golla Venkatanarayana
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 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'.
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29. I have already pointed out that Section 40(1) of
Kerala Court Fees and Suits Valuation Act which is in para
materia with Section 38(1) of the Karnataka Stamp Act
refers the valuation mentioned in the document but not
the actual or real market value. Having taken note of the
principles laid down in the case of Satheedevi and
R.Rangaiah, it has been discussed by the Hon'ble Apex
Court that if the suit is valued under Section 38 of the Act,
the fee shall be computed on the value of the subject
matter of the suit or instrument. In order to find out the
value of the subject matter of the instrument, we have to
find out what is the value mentioned in the instrument, in
other words the consideration for which that instrument is
executed. If that instrument is a sale deed or a mortgage
deed or lease deed, the consideration would be mentioned
therein but in the case of deed of settlement and deed of
gift or deed of trust, the consideration would be love and
affection and the relationship cannot be valued in terms of
money. That is the reason why the First Appellate court in
the aforementioned judgment has categorically held that
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the value of the subject matter of the instrument does not
mean the market value of the subject matter of the
instrument. The reason that the Legislature consciously
has not used the word 'market value' in Section 38 of the
Act, whereas the said word is explicitly used in Section 24
of the Act. Then it amounts to rewriting the Section or
recasting or reframing the provision of law which is not
permissible. The same is also discussed by this Court in
the case of R.Rangaiah.
30. Both the Hon'ble Apex Court as well as Division
Bench of this Court have held that as per Section 35(8) of
the Act, when used a word 'value of the subject matter of
the instrument' i.e. consideration mentioned in the
instrument is to be taken into consideration while valuing
suit for the purpose of court fee under Section 38 of the
Act and not the market value of the property.
31. When such a detailed discussion was made
interpreting Section 7 as well as Section 38 of the Act and
also the First Appellate Court in para Nos.16, 17, 18, 22
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has discussed the same and even considering the
authoritative pronouncement of Hon'ble Apex Court with
regard to invoking Section 38 of the Act, comes to the
conclusion that the valuation of the property used in
Section 38(1) of the Act refers the valuation mentioned in
the document and not the actual and real market value. In
para No.23 also, it has taken note of Section 7 as well as
Section 38 and rightly comes to the conclusion that in view
of judgment in Satheedevi and R.Rangaiah, the suit
ought to have been valued under Section 38 and not
under Section 7 as contended and hence, the First
Appellate court has not committed any error in reversing
the finding of the Trial Court. When such being the case, I
do not find any force in the contention of the petitioner's
counsel relying on the judgment of Single Bench of this
Court in the case of V.Prabhakar in respect of the sale
deed is concerned.
32. The other contention of the petitioner's counsel
that the suit is not valued for possession and court fee
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ought to have been paid the separately, the said
contention cannot be accepted since the relief sought for is
cancellation of very document of conveying the rights
under the gift deed and when the very declaration of the
documents is violation of condition of gift deed, if Court
comes to the conclusion that the relief of possession is
ancillary as held by the First Appellate Court, and need not
pay the separate court fee with regard to the possession
also and the First Appellate Court also made discussion
with regard to Section 6 of the Act and hence, I do not
find any error committed by the First Appellate Court and
hence there is no merit in the writ petition.
33. It is also important to note that the First
Appellate Court has also observed that the Trial Court
ought not to have framed the same issue including
question of limitation as well as pecuniary jurisdiction
when both are distinct and hence, it has rightly directed
the Trial Court to consider the same independently.
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34. In view of the discussion made, I pass the
following:
ORDER
The writ petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE Sh List No.: 1 Sl No.: 3