Madras High Court
Subramaniam vs Pappammal on 28 August, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2017
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
CRP(NPD).No.3132 of 2012
and
M.P.No.1 of 2012
Subramaniam .. Petitioner
Vs.
1.Pappammal
2.Rajagopal
3.Krishnan
4.Chandra
5.Chinnammal
6.Nila
7.Ramachandran
8.Sarasu
9.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai 600 009. .. Respondents
(R9 Impleaded as party respondent vide
order of Court dated 03.09.2012 Memo
in CRP(NPD)No.3132 of 2012. (Memo
dated 30.08.2012 VSSR.No.8866/12)
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the Official Memorandum of the Subordinate Judges Court, Gobichettipalayam Court Fee Check Slip order dated 08.06.2012 in O.S.No.3 of 2011.
For Petitioner : Mr.R.T.Doraisamy
For Respondents : No Appearance (for R9)
R1 to R8 Notice D/W
ORDER
The plaintiff is the civil revision petitioner before this Court, challenging the official memorandum, dated 08.06.2012, on the file of the learned Subordinate Judge, Gobichettipalayam.
2.The case of the plaintiff is that he has filed the suit in O.S.No.3 of 2011 against the defendants for the prayer for declaration, partition, separate possession and for permanent injunction.
3.At the time of filing the suit was valued at Rs.1000/- and paid the Court fee at Rs.75.50/- as per Section 25(d) of the Court Fee Act. It is the case of the plaintiff is that the suit was filed for partition and he challenged two settlement deeds and one sale deed declared as null and void, since he was not a party to the sale deed as well as the settlement deed, he valued the suit property at the rate of Rs.1000/- and paid the Court fee at Rs.75.50/- as per Section 25(d) of the Court Fee Act.
4.While pendency of the suit, the learned Sub Judge, Gobichettipalayam has issued an official memorandum in Court Fee, cheque slips in O.S.No.3 of 2011 dated 08.06.2012 directing the plaintiffs by stating that though the plaintiffs have filed the suit for declaration, partition, separate possession and for permanent injunction, the valuation of suit property at the rate of Rs.1000/- is not proper. Since, the two settlement deeds valued of Rs.6,00,000/- and one sale deed is at Rs.5,05,000/- and the total value of the property is Rs.65,05,000/- and the plaintiff should pay the Court Fee of Rs.48,750.50/- to be paid as per Section 40 of the Court Fee Act.
5.Pursuant to the issuance of the cheque slips, the learned Judge by his order dated 01.08.2012 issued an Official memorandum to the plaintiff to pay the Deficit Court Fee within a period of 7 days i.e. 07.08.2012, failing which necessary proceedings will be initiated against the plaintiff for recovery of the Deficit Court Fees.
6.For the issuance of the official memorandum, the plaintiff has filed a detailed reply, but without accepting the objections filed by the plaintiff, the learned Judge is directed the plaintiff to pay the stamp duty within a period of 7 days. Challenging the said official memorandum, the plaintiff has filed the present Civil Revision Petition before this Court.
7.I heard Mr.R.T.Doraisamy, learned counsel appearing for the petitioner and there is no representation on behalf of the 9th respondent and perused the entire records.
8.It is admitted fact that the plaintiff has filed the suit for declaration, partition, separate possession and permanent injunction. The prayer sought for in the plaint is as follows:
14.Mifahy; rK:fk; nfhh;l;lhh; mth;fs; fpUig bra;J fPH;f;fz;lgo jPh;g;g[k;. jPh;g;ghida[k; gpwg;gpf;f ntz;oaJ;
m/jhth V brl;a{y; brhj;J bghUj;J 3k; gpujpthjp vGjpg; bgw;w jhd brl;oy;bkz;l; gj;jpuk; 24/9/2010k; njjpaJ rl;lg;go bry;yj;jf;fjy;y vd;Wk;. thjpiaf; fl;Lg;gLj;jf; Toajy;y vd;Wk;. tpsk;g[ifg; ghpfhuj;jpw;F jPh;g;g[r; bra;a ntz;Lkha[k;;
M)/jhth gp brl;a{y; brhj;J bghUj;J 2k; gpujpthjp vGjpg; bgw;w jhd brl;oy;bkz;l; gj;jpuk; 24/9/2010k; njjpaJ rl;lg;go bry;yj;jf;fjy;y vd;Wk;. thjpiaf; fl;Lg;gLj;jf; Toajy;y vd;Wk; tpsk;g[ifg; ghpfhuj;jpw;F jPh;g;g[r; bra;a ntz;Lkha[k;;;
,)/jhth o brl;a{y; brhj;J bghUj;J 7. 8 gpujpthjpfs; bgw;w fpuag;gj;jpuk; 30/11/2010k; njjpaJ rl;lg;go bry;yj;jf;fjy;y vd;Wk;. thjpiaf; fl;Lg;gLj;jf; Toajy;y vd;Wk; tpsk;g[ifg; ghpfhuj;jpw;F jPh;g;g[r; bra;a ntz;Lkha[k;;;
<)/jhthr; brhj;ij eyk; jpfL fye;J 49 rk ghf';fshfg; gphpj;J mjpy; 8 g';if thjpf;F xJf;fp ghfg;gphptpid ghpfhuj;jpw;Fj; jPh;g;g[r; bra;a ntz;Lkha[k;;;
c)/nkny fz;lgo xnu ,dkhf thjpf;F xJf;fg;gl;l 8 rk g';Ffis thjpf;F jdpj;J RthjPdk; MFk;gof;Fj; jPh;g;g[ gpwg;gpf;f ntz;Lkha[k;;;
C)/,Wjpepiy jPh;g;ghiz bgw jdpj;J kD jhf;fy; bra;a mDkjpaspj;J jPh;g;g[ gpwg;gpf;f ntz;Lkha[k;;;
v)/gpujpthjpfs;. thjp g';Fr; brhj;ija[k; nrh;j;J 3k; kdpjh;fSf;F tpw;fhky; ,Uf;Fk;gof;F xU epue;ju cWj;Jf;fl;lisg; ghpfhuj;jpw;Fj; jPh;g;g[r; bra;a ntz;Lkha[k;;;
V)/jhth bryt[ bjhiff;Fk;;
I)/kw;Wk; rK:fk; nfhh;l;lhh; mth;fSf;F a[j;jkha;j; njhd;Wk; ,ju ghpfhu';fSf;F jPh;g;g[ gpwg;gpf;f ntz;Lkha[k; thjp tzf;fkha;g; gpuhh;j;jpf;fpwhh/
9.Admittedly, the plaintiff has challenged the two settlement deeds and one sale deed with further prayer of partition, separate possession and for permanent injunction. He valued the suit at Rs.1,000/- under Section 25(d) of the Court Fees Act and paid the Court fee at Rs.75.50/-.
10.When the plaintiff, if not the party to the settlement deed as well as the sale deed, this plaintiff has valued the schedule of property only under Section 25(d) of the Court Fee Act at the rate of Rs.1000/- and paid the Court fee at Rs.75.50/-. Therefore, the plaintiff has come forward by saying that when the plaintiff has not the party in the proceedings the settlement deed as well as the sale deed, he need not to pay the Court fee for the valuation of the settlement deed and the sale deed. Therefore, the petitioner to support his case they produced two judgments passed by this Court as well as the Honble Supreme Court. The judgment passed by this Court in a case of (1) Siddha Construction (P) Ltd., rep. by its Power Agent Anjay Sharma, Chennai v. M.Shanmugam and Others reported in (2006) 4 MLJ 924 stated as follows:
11.For deciding the value of the Court-fee payable by the plaintiff, the averments in the plaint alone are to be considered. In O.S.No.13 of 2002, the prayer sought for is to declare the sale deed executed by the 1st defendant (the 5th respondent herein) in favour of the 3rd defendant (revision petitioner) as null and void and not binding on them. It is averred at para 10 of the plaint that since they are not party to the sale deed dated 31.10.2001, which is to be declared as null and void, the plaintiff valued the suit for the purpose of the Court-fee under Section 25(d) of the Tamil Nadu Court-fees and Suits Valuation Act. Itt is also further averred in para 7 of the plaint that the plaintiffs did not execute the sale deed and they did not receive any sale consideration. It is the further case of the revision petitioner that they did not make any alienation to and in favour of any one till today in respect of the suit schedule property. (2) Suhrid Singh Alias Sardool Singh v. Randhir Singh and Others reported in (2010) 12 Supreme Court Cases 112 stated as follows:
7.Where the executants of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executants of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing too have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. (3)In Gnanambal Ammal v. Kannappa Pillai reported in (1959) 1 MLJ 353 it is held as follows:
Where a plaintiffs case is that a document is sham and nominal, it need not be set aside, and the suit for relief on that footing is not one for cancellation, so as to attract the application of Section 40 of the Madras Court-fees and Suits Valuation Act, 1955. But even in such a case, if the plaintiff sues for cancellation he would have to pay Court-fee on that relief, whether it is necessary to have the deed cancelled or not. (4)In Andalammal v. B.Kanniah reported in (1971) 2 MLJ 205 it is held as follows:
Section 40 of the Act refers to the amount or value of the property for which the documents was executed. The legislative intent is clear that the basis for the purpose of valuation shall be the amount or value mentioned in the document sought to be cancelled. There is no warrant for ignoring the plain language of the Section and holding that the value shall be the market value of the property.
11.On fair reading of the above judgments, it made clear that when the plaintiff is not the party to the sale deed and settlement deeds, the plaintiff need not to pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1959 and they are right to value and to pay the Court fee under Section 25(d) of the Act only. Therefore, the official memo dated 08.06.2012 issued by the learned Sub-Judge, Gobichettipalayam, is totally against the Act and they cannot direct the plaintiff to pay the stamp duty as per Section 40 of the said Act.
12.Apart from this, when the plaintiff has filed his objection it is the duty bound of the learned Sub-Judge, Gobichettipalayam to consider the objection made by the plaintiff. It is also the case of the plaintiff is that the suit was already settled between the parties out of the Court and as on date, there is no adjudication to be conducted in the suit. Therefore, the issuance of the official memorandum dated 08.06.2012 is not proper and it was issued against the orders of the Honble Supreme Court as well as this Court passed in the above judgments. Therefore, it is just and necessary for the interference in the orders passed in the official memorandum dated 08.06.2012 by the trial Court and accordingly, the same is liable to be set aside.
13.In the result, this Civil Revision Petition is allowed by setting aside the official memorandum dated 08.06.2012, on the file of the Subordinate Court, Gobichettipalayam. No costs. Consequently, connected miscellaneous petition is closed.
28.08.2017 vs Index:Yes Speaking order To The Subordinate Judges Court, Gobichettipalayam.
M.V.MURALIDARAN,J.
vs CRP(NPD)No.3132 of 2012 and M.P.No.1 of 2012 28.08.2017