Andhra Pradesh High Court - Amravati
Palem Goutham Chandrakanth vs Palem Bindu Latha on 3 December, 2021
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.1196 of 2020
ORDER:
The respondent herein filed O.S.No.69 of 2018 against the petitioner herein for partition of the suit schedule property into two equal shares and to allot one such share to her. As certain deeds of gift alienating a part of the suit schedule property were also being challenged, a further relief of declaration that the registered documents, bearing document Nos. 9583/2005 dated 02.09.2005, 9584/2005 dated 02.09.2005; 569/2004 dated 22.01.2004; and 7054/2004 dated 13.10.2004, as null and void and not binding on the respondent was also prayed for. The other reliefs are not relevant for the purpose of the present revision petition.
2. The respondent had paid Court fee in relation to the first prayer of partition under Section 34(2) of the A.P. Court Fees and Suits Valuation Act, 1956 (for short „the Act‟). There is no dispute on the payment of this part of the Court fees. The respondent had paid the Court fee in relation to the declaration against the gift deeds under Section 24(d) of the Act. The respondent also paid Court fee under various other provisions of the Act in relation to the other reliefs sought in the suit.
3. The petitioner being aggrieved by the payment of Court fees in relation to the declaration against the gift deeds, under Section 24(d) of the Act, had moved I.A.No.1563 of 2018, under Section 11 of the Act read with Order VII Rule 11 and Section 151 of C.P.C., praying the trial Court to enquire into the sufficiency and correctness of the Court fee paid by the respondent. This application has been rejected by the trial Court by order dated 03.03.2020.
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4. Aggrieved by the same, the petitioner has approached this Court by way of the present civil revision petition.
5. Heard Sri S.S. Bhatt, learned counsel appearing for the petitioner and Sri Guttapalem Vijaya Kumar, learned counsel appearing for the respondent.
6. Sri S.S. Bhatt, learned counsel appearing for the petitioner submits that amendment to the Hindu Succession Act, 1956 was brought into effect from 9th September, 2005 and the proviso to Section 6(1) mandates that dispossession or alienation of the property which had taken place before 20.12.2004 would not be affected by the rights given to the daughters of the family.
7. He submits that on account of this provision, deeds of gift bearing Nos.569/2004 dated 22.01.2004 and 7054 of 2004 dated 13.10.2004 have to be challenged by way of seeking a decree of cancellation of deeds of gift. In the circumstances, he contends that the relief that should be sought falls within Section 34(3) of the Act, which requires a separate Court fee to be paid, as computed under Section 37 of the Act. He submits that the Court fee payable under Section 37 is to be computed on the value of the subject matter of the suit and as such, the Court fee paid by the respondent is wholly inadequate and consequently the suit requires to be dismissed on that count.
8. Before considering the issue raised by the petitioner, a brief review of the provisions of the A.P. Court Fees and Suits Valuation Act, 1956, is necessary.
9. Section 7 of the Act, requires the fee payable under the Act, save as otherwise provided, to be calculated on the market value of the 3 RRR,J C.R.P.No.1196 of 2020 property in dispute, on the date of presentation of the plaint. Section 11 of the Act empowers the Court to look into the valuation and Court fee submitted by the plaintiff, to ascertain whether it is in accordance with the provisions of the Act, both before the plaint is registered and also after the plaint is registered from time to time as the occasion may require.
10. The provisions relating to valuation and payment of Court fee where documents are involved, for the purpose of the present case, are Sections 23, 34 and 37 of the Act.
11. Section 37 of the Act reads as follows:
"37. 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 -
(a) 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;
(b) if a part of the decree or other document is sought to be cancelled such part of the amount or of the 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:- A suit to set aside an award shall be deemed to be a suit for cancellation of a decree within the meaning of this Section.
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12. Section 34 of the Act sets out the Court fee payable in a partition suit under sub-sections (1), (2) and (3). Sub-section (3), which is relevant for the present case, reads as follows;
"Section 34(3): Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks also cancellation of decree or other document of the nature specified in Section 37, separate fee shall be payable on the relief of cancellation in the manner specified in that section."
13. The remaining provision, Section 24 prescribes the fee payable in suits for declaration, and it reads as follows:
"Section 24:- Suits for declaration:-
In a suit for a declaration with or without consequential relief, not falling under Section 25 -
a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property or on rupees three hundred, whichever is higher.
b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property fee shall be computed on one-half of the market value of the property or on rupees three hundred whichever is higher.
c) Where the prayer relates to the plaintiff‟s exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher.
d) In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint 5 RRR,J C.R.P.No.1196 of 2020 or at which such relief is valued by the court whichever is higher."
14. In view of Section 7 and 11 of the Act, the Court is entitled to look into the question of valuation of the suit as well as the Court fee paid, whenever an issue relating to non-payment of adequate Court fee or improper valuation of the suit is raised before the Court. In the present case, the application filed by the petitioner for review of the suit valuation and Court fee would be maintainable and the trial Court had considered the issue raised by the petitioner.
15. The case of the respondent is that her father late Sri Palem Venkata Rao had obtained certain properties by way of registered deeds of gift dated 24.09.1995 from his father late Palem Narasimhulu. The respondent contends that these gifts by themselves do not take away the character of the joint family property and as such her late father held these properties as the head of the joint family consisting of herself, her father and her brother, who is the petitioner herein. The respondent further contends that her father, during his life time, had executed certain deeds of gift in favour of her brother, who is the petitioner herein, and their mother. The respondent further claims that the petitioner herein, who is said to be an unemployed person, sold away the properties obtained under such deeds of gifts and used the sale proceeds of such sales to purchase other properties which are described in Schedule-B of the plaint schedule. The respondent sought a declaration that the said deeds of gift executed by her father in favour of her brother and mother in 2004 and 2005, are null and void and are not binding on her as they are joint family properties.
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16. On the basis of that claim, the respondent valued the suit and paid the Court fee under Section 24(d) of the Act as she was seeking a relief of declaration and not a relief of cancellation of the documents.
17. A perusal of Section 34(3) of the Act would show that the plaintiffs, who filed the suit seeking cancellation of a decree or any other document, of the nature specified in Section 37, would be required to pay Court fee under Section 34(3). On the other hand, where a plaintiff seeks a declaration and not a relief of cancellation the Court fee that would have to be paid by such a plaintiff would be, under Section 24(d) of the Act.
18. In the present case, the contention of Sri S.S. Bhatt is that the respondent ought to have sought a decree of cancellation of the documents and consequently paid the Court fee under Section 34(3) of the Act. As the respondent did not do so, and paid Court fee under Section 24(d) of the Act, the same is not in accordance with the provisions of the Act.
19. The above contention of Sri S.S. Bhatt, learned counsel for the petitioner, cannot be accepted for two reasons. Firstly, it is the prerogative of the plaintiff to frame the suit in the manner he/she chooses. It is a different matter that the relief sought by the plaintiff may not be permissible or not capable of being granted by the Court. In such a situation, the plaintiff would suffer the consequences of a relief which is wrongly framed. However, the defendant cannot insist upon the plaintiff to frame the reliefs in a suit in a particular way and pay the Court fee on the said reliefs. Sri S.S. Bhatt contends that if the plaintiffs are permitted to frame their reliefs in any manner they chose, there is always a possibility of the plaintiffs framing their reliefs in such a manner that they do not pay adequate Court fee and still pass of their prayer as a relief 7 RRR,J C.R.P.No.1196 of 2020 sought for some other purpose. It is possible that such a situation may arise. However, that is a matter for the trial Court and the defendants to take care. A vigilant defendant can always point out this discrepancy in the language of the relief that is sought at the end of the trial and the trial Court is not powerless to deal with such a situation. In any event, the Hon‟ble Supreme Court had held in Kamaleshwar Kishore Singh Vs. Paras Nath Singh and Ors.,1 that a court fee has to be fixed on the basis of the plaint as it is framed and not on how it ought to have been framed.
20. The second reason why the contention of Sri S.S. Bhatt cannot be accepted is the question - whether the relief framed by the respondent seeking a declaration that the deeds of gift are not binding on her, rather than a relief of cancellation, is an appropriate relief. A learned single judge of the Hon‟ble High Court for the States of Telangana and Andhra Pradesh at Hyderabad had dealt with a similar issue in Nade Ali Mirza and Ors., Vs. Khalida Mohammed Salim Dawawala and Ors.,2. The learned Judge following the ratio laid down by the Hon‟ble Supreme Court in Suhrid Singh vs. Randhir Singh3 had held that a person, who is not a party to a document can only seek a declaration that the said document does not bind him or her. The Learned Single Judge had also held that in such a situation the plaintiffs in that case were not bound to pay court fee as computed under section 37 of the Act. In the circumstances, the decision of the trial Court rejecting the application filed by the petitioner does not require any interference. 1 AIR 2002 SC 233 2 2016 (1) ALD 318 3 AIR 2010 SC 2807 8 RRR,J C.R.P.No.1196 of 2020
21. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ R. RAGHUNANDAN RAO, J.
3rd December, 2021 Js.
9 RRR,J C.R.P.No.1196 of 2020 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO C.R.P.No.1196 of 2020 3rd December, 2021 Js.