Karnataka High Court
Mrs Sharmila vs Mr Subramanya Jois on 9 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:40276
WP No. 15698 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 15698 OF 2019 (GM-CPC)
BETWEEN:
MRS SHARMILA
W/O MR.SUBRAMANYA R.JOIS,
AGED ABOUT 49 YEARS
R/AT NO.19, SINGAPORE GARDENS,
GUBALALA CROSS,
KANAKAPURA ROAD,
BENGLAURU-560 0062.
...PETITIONER
(BY SRI. VINAY SWAMY C.,ADVOCATE)
AND:
1. MR SUBRAMANYA JOIS
S/O LATE H.S.RAGHUNATH
Digitally AGED ABOUT 25 YEARS
signed by
NARASIMHA NO.19, SINGAPORE GARDENS
MURTHY GUBALALA CROSS,
VANAMALA
Location: KANAKAPURA ROAD,
HIGH BENGLAURU-560 062.
COURT OF
KARNATAKA
2. MR.SHARADH JOIS
S/O SUBRAMANYA JOIS
AGED ABOUT 25 YEARS
NO.19, SINGAPORE GARDENS,
GUBALALA CROSS,
KANAKAPURA ROAD,
BENGALURU-560 062
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NC: 2023:KHC:40276
WP No. 15698 of 2019
PRESENTLY AT
802, WASHINGTON AVE,
FLOOR-I, ALBANY
NEW YORK-12203, USA.
...RESPONDENTS
(BY SRI.PRAVEEN PRABHAKAR., ADVOCATE FOR R1
AND R2)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 12.2.2019 PASSED BY THE VII
ADDITIONAL CITY CIVIL JUDGE [CCH-19] BENGALURU
OA IA NO.3 IN O..SNO.4779/2016 [ANNEXURE-A] AND
CONSEQUENTLY DISMISS THE APPLICATION I.A.NO.3
FILED UNDER ORDER VII RULE 11[c] READ WITH
SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
1908 [ANENXURE-J].
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is by the plaintiff in O.S.No.4779/2016 on the file of the VII Additional City Civil and Sessions Judge, Bengaluru [for short, -3- NC: 2023:KHC:40276 WP No. 15698 of 2019 'the civil Court']. The petitioner is aggrieved by the civil Court's order dated 12.02.2019, and the civil Court by this order has disposed of the application [IA.3] filed by one of the respondents- defendants under Order VII Rule 11(c) read with Section 151 of the Code of Civil Procedure, 1908 [CPC], opining that the petitioner should have valued the suit under Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 [for short, the 'Court Fees and Suits Valuation Act'] and consequentially paid the court fee on the value of the gifted property as of the date of the execution of the gift deed.
Sri Vinay Swamy C, the learned counsel for the petitioner, submits that the question is no longer res integra with a decision of this Court in Sri Jaware Gowda and another vs. Sri Basavraju N J and Others, reported in ILR 2015 KAR 4900 inasmuch as this Court considering the provisions of Section 38 and 24(d) of the Court Fees and Suits Valuation Act and -4- NC: 2023:KHC:40276 WP No. 15698 of 2019 holding that the gifts are executed for love and affection, has opined that when a suit is filed for cancellation of the gift deed, the valuation must be under Section 38 of the Court Fees and Suits Valuation Act and if no value is mentioned in the deed, the valuation cannot be under Section 38, but must be under Section 24(d).
In this regard attention, Sri Vinay Swamy C invites this Court's attention to Paragraphs 16, 17 and 21 which reads as under:
"16. Therefore, if the suit is to be valued under Section 24(a) and (b) of the Act, it is on the basis of the market value of the property. If the suit is to be valued under Section 38 of the Act, the fee shall be computed on the value of the subject matter of the suit or the 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, what is the consideration for which that instrument is executed. If the instrument is a sale deed or a mortgage deed or a lease deed, the -5- NC: 2023:KHC:40276 WP No. 15698 of 2019 consideration would be mentioned therein. But in the case of a deed of settlement and deed of gift or a deed of trust, the consideration would be love and affection and the blood relationship, which cannot be valued in terms of money. That is the reason why the Apex Court in the aforesaid judgment has categorically held that the value of the subject matter of the instrument does not mean the market value of the subject matter of the instrument. That is the reason why 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. If the word 'market value' is read into Section 38 of the Act, then it amounts the Court rewriting the Section or recasting or reframing the provisions of law, which is not permissible.
17. It is well settled proposition of law that the Court cannot add words to a statute or read words which are not therein. Even if there is a defect or omission in the statute, the Court cannot correct the defect or supply the omission. Therefore, Section 38 of the Act when it uses the words 'value of the subject matter of the suit' it is the subject matter of the instrument i.e., the consideration mentioned in the instrument which is to be taken into consideration while valuing the suit for the purpose of the Court fee under Section -6- NC: 2023:KHC:40276 WP No. 15698 of 2019 38 of the Act and not the market value of the property.
. xxx
21. As set out above, though the suit is styled as a 'declaration', Section 24(a) and (b) of the Act is not attracted. In substance, the relief sought being cancellation, it is Section 38 which is attracted but since no value is mentioned in the instrument, it cannot be valued under Section 38 of the Act. Therefore, Section 24(d) of the Act is attracted. Therefore, the plaintiff in the absence of the value of the subject matter being mentioned in the instrument and as the case does not fall under Section 24(a) and (b), they have no obligation to value the suit on the basis of the market value. The plaintiffs have rightly valued the suit under Section 24(d) of the Act and have given their valuation as rupees one thousand. In the facts and circumstances of this case, the said valuation cannot be found fault with."
In the light of the afore, the impugned order cannot be sustained and hence the petition is allowed quashing the impugned order dated 12.02.2019 [Annexure-A]. In the peculiarities of this case, the -7- NC: 2023:KHC:40276 WP No. 15698 of 2019 petitioner is reserved with liberty to seek expeditious disposal of the suit.
Sd/-
JUDGE NV