Karnataka High Court
Anandamma vs Sharada @ Munithayamma on 18 October, 2010
Equivalent citations: 2011 (1) AIR KAR R 447
Author: Anand Byrareddy
Bench: Anand Byrareddy
'Elan
Bangalpre +_ 43.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 153*' DAY OE OCTOBER,"
THE HON'BLE MR. EUSTICE:ANAND".BYRATR_Ei)D'Y A
WRIT PETITION No. 23457 1O.1?:2(I09 '
BETWEEN:
1. Smt. Anandamma
W/0 Late Rajanna,
Aged 57 years,
2. Sri. Ram.e.SE.
BEFORE:
S/0 Late5'Raj:a'::ITa,' .
Aged 30 years,_ "
Residing at D0Oi<f.N0'I ' '
hi 9 ' -'
4' E Cross,-- A ' -
H.R.B. Lay01It;' III
Ka1yananagar,E_V V
R..sr3.*MaIIesII'I
'S/_Q:L'E_1f€«R:3jflI1vI;I€ia_I
A 3.5' yeazis'»,« ._ "
" " Late Rajanna,
' Aged 25 years,
At Gayathri
~ D/'D Late Rajanna
8
Aged 22 years,
Petitioner Nos. 1, 3, 4 & 5
Are Residing at Door No.13,
Near Ganesha Temple,
Kammanahalli Main Road,
Kaeharakanahalii, _. V _ " _ V
Bangalore -- 84.
(By Shri. T. Sheshagiri Roa and Sri. Sunil S. Rao,. 'A
AND:
Sharada @ Munithayamma
W/o K.N. Srinivasa Gowda,
Aged 52 years,
No.77, K_acharakanaha1ii__,"*2.
St. Thomas Town, ' - *
Bangalore -- 560 084.
(By Shri. * for Caveator[Respondent for
Kumar Kum_ar,_ VA'dvo'c.ate«s"," Shri. R. Omkumar, fiigh Court
Government--.P1eader_) C
Petlition is filed under Artieies 226 and 227 of the
Co'n-stitutionofi'India, praying to quash the order dated 7.9.2009
one.44passed_b5/the 44"' Additional City Civii Judge, Bangalore in
O.S.iit'Jo§"2516/2007 found at Annexuremii' and etc.,
i it This petition having been heard on 06.08.2010 and reserved
_ Coming on for pronouncement of orders this day, the Court
delivered the foliowingzw
5
O R D E R
Heard the learned counsel for the petitioners the respondent and the learned Government Advocatef against the petitioners and seVen'others,"whoare_not'znade parties to the present petition, as. the petitionersfthey are not necessary parties. The of cancellation of two sale deeds} by the respondent and another herein. The suit was as seven others who were said \~,L,a3: "the i tenements in the property. However? thoseAVite'nants are not made parties herein by the petitioners,_as«.._according to the petitioners, they are not necessary parhtiyesi'i1i'V"decidi'n.g this petition. The suit filed by the respondent wasiiivalinediaut Rs.4,40,000/-- for purposes of court fee and a court V' tfeeof Rs.29,'735/-- was paid on the plaint. The petitioners herein i contested the suit and had contended that the court fee paid 6 was insufficient. issue no.7 was framed relating to the sufficiency of the court fee paid, which was treated as a prelirninary and the trial court, by its order dated 7.9.2009 held trrat y paid was sufficient. it is that order"w.hici.h fs'oug:h'tf'rtoi'vbe9j challenged in the present petition.
3. The learned Cpounselifor:'the'wp'etitioners would submit that the suit was filed the sale deeds dated 19.7.1995, --::f:Ijl:1e indicated in the sale deeds was ohljthe date of filing of the suit, as the State Government, for every sduarpe vicinity of the suit property, was at R4sg.5'0Q/~. ii{f"'the'via1ue of land is calculated at that rate, then the the property would be Rs.23,62,000/~ and the would be Rs.l,1l,073/~. It is ooioted out that the learraeditriial Judge however, while evaluating the market value A ofthe suit property has not taken market value of the property as if on the date of the institut_ion of the suit and has proceeded on the value set~forth in the instruments which were of the year 1995. Therefore, there is an illegal finding on issue No.7. It is also pointed out that as on 19.4.2007, the market value ofthe very property has been revised and it was fixed at square foot. if this basis is adopted, the marke_t escalate even further and consequeititlypithe c_ourt* lion if. these contentions, that the learned counsel wot1.ldi5ur§ge. that since the suit was filed in the year 2007i}*it:iwas the'V'a1ue ofjthe property as on that date which vvasi'materia;_1vvfoifcoiriputing the court fees. The learned counsel woule" i.attentio;i"'toi Section 38 of the Karrrata-ka'-Court "Valuation Act, 1958 (hereinafter referred -' il958:_ii~~iiAct' for brevity), particularly, with " _ reference: tofixplanatieii (2) thereto, which reads as follows:--
Suits for cancellation of decrees, etc.: (1) In a 9 cancellation of a decree for money or other property h'aviegi,'ia money value, or other document which purports or .9 operates to create, éeclare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shail 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; _i * If a part of the decree or other docL:ment_.Ai"s*--soiliglitl" it to be cancelled, such part of the amount or property. V l _ pp (2.) if the decree or other docvuriientllis suchithat lhé, liability under it cannot be"s_plit__up and thcyreiiieii relates only to a particular iteizrof proper:-y Ibelongihig to the plaintiff or to the plaintiffs' share Viimny such' 'property, fee shall be comptitedon such property or share or on the amount of the d-€Ci1Ce,'lWhicliefV~€l" is less. llll " eA}fi}ipl.ana'tilon suit 'set aside an award shall be deemed to pal .351 'aside a decree within the meaning of this 'séc:'ma--.--. "
'figiplanation-2:i'li; a suit for cancellation of a decree possessio'nv--.of.any property, the fee shall be computed _asin a suit for possession of such property."
Jiiould. submit that in terms of Section 7 of the 1958 Act, the market value of the land as on the date of the presentation of the plaiat which is material under Sub--section (I ), V. since the prayer is for cancellation of the sale deed and 5 recovery of possession of the property, the same would fall under Section 24, which provides that, when a prayer is for declaration and for possession of the property, the fee shall be computed on the market value of the property and hence, the tria.1..court: was in error in computing the market value _ini'the instruments and not the market v:a_1ue,...asf} on date,_Vo.f,.,t'he '' presentation of the plaint.
Reliance is placed on a Benc'h.,j_udgirnent in the case of R.Rcm.giah vs. My.LJ 67, which has been followed iijfa "iudugVtnent of a learned Single Judge reported" _ the», Sc-uase "DamegLm.Ia Rajeshwaramma vs. Jaypajak.s,hr?1ainrm1_, TLR OJTO K ar. 22 88 . \,7ii$/"l1i_le the learned counsel for the respondent would c_ori.t_end"th~at_ S,ecti_on 38 of the Karnataka Court Fees and Suits Valuation Act, 1958, though appears to be in pari mareria with Section ;i(iv)A of the Mysore Court Fees Act, 1900, (hereinafter referred to as ' the .1900 Act' for brevity), Explanation~(2) to 6 Section would make al_l the difference. Since it is only in respect of suits for cancellation of a decree and possession of any property, that the fee shall be computed as in a suit for po"s.session of such property. It would not bring within its ken "suit for cancellation of a document as in the present__c_ase.' --:.The.reiifr:re,i it is only the value indicated in the docurnentj. is lreieyantfor ' purposes of payment of court fees..__ In thi,s'"regar;.i,' reliance on a decision of the Supreme Court in the case of Sarhee Devi vs. Prasarma, 20iI{}fiA!R and other authorities which may not.biev..releyAant'for_the--.det'ermi.nation of the issue herein. = i 5, Timed point that iiwoiuld arise for consideration is, whether " _'thev.'plaintiff..was req'='---ir-ed to pay the court fees on the market value __o'f "which was the subject matter of the sale deeds, which wasicjhaillenged in the suit and cancellation of the same, ' "being sought for.
The prayer in the plaint, which is annexed to the writ petition, seeks a decree declaring the sale deeds in question as having been obtained by fraud, and consequently for cancellation of the sale and as a further consequential 1"e]_ief,_...t§"
defendants to hand over possession of the the plaintiff. The property is desci7:ibeC:1ii.4Eisj*. if no.55/l of Kachatkanahalli, Ban g_a1oref'N_oith '¥'cet'1'1i3'l<x,pe.ineas_i3ring:S; guntas.
It is the allegation--.ifijthe*i_i_p1ainit"thati"the defendants had, by deceit put up con.structio1'1'v»oyer and had let out tenements to othe1"fde:fendants----Wlio are parties to the suit. But, for all purposeis',-_the chosen to treat the suit property as " _Aagrei':c°t:ltu.rai land vi/'he--n--it' was bought as such. V 3:8:_.of the 1958 Act specifically provides that in a suitfor cancieliiation of a document which operates to create a title Vytheiiitniriovable property and lays down that the fee shall be if 'c_o'mp'uted on the value of the property, as indicated in the % l0 document. And by way of explanation, it is expressed that insofar as a suit for cancellation of a decree and possession of any property is concerned, the fee shall be computed as in asuit for possession of such property, thereby by implication,"-la' cancellation of a document which is conjointly__referte:(ii. to along' with a suit for cancellation of a decree in _sub,--s'ect1ion._:('i), i.ssoug'ht ' to be excluded. This is theapparent."indicationfrom it reading of the Section.
Under Section 24,r~,ah, . .a"suit,'for"'declaration and possession of imm§v.é{b'1es, certainly the market Value of the property,'oyniwhichitlie is required to be paid. Therefore, the agnswter v\iould'ble that in a suit for cancellation of the sale ydeedls, eiv.en.though a consequential relief of possession is also V'it:"'i'_g..pnlylyiiunder Section 38(1), thatthe court fee payable j wouldzfito be computed in View of Explanation-2 to the A »l_"Section, excluding a suit for cancellation of a document, as being asuit for possession of such property, while specifying that a suit 2 11 for canceilation of a decree and possession of any property, the fee shali be computed as in a suit for possession of such property. Insofar as the judgment of a Division Bench of this -"court in the case of Rangiah vs. Thimma Setty, is were as foi_}ows:--
The Division Bench was deaiingp_Wit_;h i'evision-._peti_tic»n. V The respondent was the plaintifi"-._in thet_riai_ courti, hadiiisued. for cancellation of a deed of settle'rne_11t..executed by him and for partition and delivery of"'poss,es.siC{r1.:. Vaiued the relief for cancellationiatian specified in the deed of settiernentr "The defer1dant_s;'«'J(/ho were the petitioners before the Division_Benci1»ofthis court, had raised an objection that the relief iiofxcanciellationv had not been properly valued since the market ivaiue' of thje._pro'perti_es was much more than was reflected and it wasliurged that the suit was beyond the pecuniary jurisdiction of A .f_" theiitriai court. That contention was accepted by the trial court and the plaint was directed to be returned. But, in an appeal preferred 6 by the plaintiff to the appellate court, it was held that the suit had been properly valued. This was under challenge. The scope of Section 4(iv)A of the Mysore Court Fees Act, 1900, was.-relevant. and was considered at length. The relevant portior1-::"oi'v..the Section reads as follows:--
"4.( 1' v ) A. In a suit for c'urzc'e¢'l'ation of "o cifecr_ee-- for" 'V money or other property having nt.o_nie)? vdlue"o_r oti1c?'r*--._li7 A document securing money or other property h.a"~:.a:'ng siuc/tp value, according to the vniiueof the subject _rn.c1vtter°oj9t.lte:
suit, and such value shall be 'deemed to --
if the whole decree__'or_ other _do'cumen~--t,is .s'ougi,>iltt to be cancelled the amount" or I')'?_.€:':'V'C£lL£€'iféffhié'. property for which the decree wn,_sfp.g1.s's'ed;or'"*t'hew.gjther document e.rcecuted:t.
jfpg pnrtof decreexor"o_Iher document is sought to be cartcelled, s';r._4c/'t.Apdrt.__of"the amount or value of the pr()per-ry. "'» opined-by" the Division Bench that Section 4(iv)A fee payable in respect of two categories of suits? VvVhE:iilf_ltiVfi¥St does is to require the payment of court fee in l"*a suit' vvbrought for the cancellation of a decree on the amount l 'spec-ified in the decree if it was for money and on the value of the Z property for which the decree had been passed, if the decree sought to be cancelled is a decree for property. It next provided that if the suit is brought for the cancellation of a document, the court fee is payable on the value of the propertywtol:Vrh'ichv.,the document relates. The Division Bench held that wV'o.rd lval].l_,uel'"
occurring i_n the first paragraph would iha'v.el"to be uri-.rler's'tood"«aS ii. the market value, if Paragraphs: -_2 and_3l'did not-".r;.xistl'in°'SectiorL 4(iv)A. Therefore, if the word"'V.'_lValue' llticciurringr, in the first paragraph means market'*«va'lue,i._ then. itV._sho'ul_d also be understood as such, with rrevferen:;e"'»trl):" the-_"»,words,:."'l'Value' appearing in Paragraphs 2 anld'--r.c_:ourt further reasoned that the Section does not merely pre__videl for cancellation of a document executed "l"«.._'for/:_,a~ specified cotis-i-aeration such as a sale deed, but also r.pa_yment of court fee even in suits brought for can.c__ell.at-ion',j'.of other documents such as a deed of settlement, a ' Vi gift deedior a trust deed. In the latter category of cases, it would 'not be appropriate to regard those documents as executed for a V' "consideration or a specified amount and those cases would not be % 14 cases in which there would be any value for which the document is executed. it was thus concluded that, what is relevant for the purpose of Section 4(iv)A is not the value of the property specified in the document, but its real and actual value' ~s'zh¢:; the suit is brought. It is on that value that the court felfilhitgrtoll "
if the suit is for cancellation ofila idoc.ulm_ent-recording a it. transaction involving such property.
The argument canvassed that the required a person presenting a docuifnen't_ fo_-r.il.re..gi.st:'ation, to indicate the value of the theldocument related, it was also provided' that even 'sir': of settlement, the value of the propertysinvolvedtllwoulld have indicated the market value, was .ne«gatedi footing that the relevant article in the Schedule to the'~Starnpl.".'Act,::.rheant the market value and therefore, there was consis.tel'r:cyl in holding that the expression "value" occurring in K' 4(iv)A could only mean the market value.
% 15 It is on this reasoning and going by the letter of Section 4(iv)A, that the Division Bench had allowed the revision petition. That judgment was followed by a learned Single Judge of this court in Damegimra Rajeshwaramma, supra. Sigriifi$ga'ntly, the learned Singie Judge while relying upon judgment and having extracted Section' 38' Qflzlhfl' the 7. if Explanations to Section 38 aregornittedg This would' make'. all the difference in applying the provistloihgaiid thelli'avvia'sl laid down with reference to Section 4(lVV').A" of the; Hence that section and the interpretation of the-saifne Vbestrictly applicable to Section7,38'-- of theffprese:ntci_:Act "owing to Explanation--2, which certainly elxcludes a_ s;iit'«for cancellation of a document being " _Atrea'teld asia suit for 'recovery of possession of property. S cAccordring'l--y, the writ petition is dismissed. 551/:3 Iud9'5