Karnataka High Court
Mr. Rakesh Rai vs Mr. Shivarama on 1 July, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.12185/2020 (GM-CPC)
BETWEEN:
1. MR. RAKESH RAI
S/O RAGHUNATH RAI
AGED ABOUT 30 YEARS
R/AT. D.N.1/30/17/D
BOLLAGIDDE BAJAL VILLAGE
MANGALURU TALUK
Digitally signed DAKSHINA KANNADA 575007.
by RUPA V
2. MRS. SUSHMA
Location: High W/O RAKESH RAI
Court of AGED ABOUT 29 YEARS
karnataka R/AT D N 1/30/17/D
BOLLAGIDDE BAJAL VILLAGE
MANGALURU TALUK
DAKSHINA KANNADA 575007.
...PETITIONERS
(BY SRI. K. RAVISHANKAR, ADV.,)
AND:
1. MR. SHIVARAMA
S/O VISHWANATH
AGED ABOUT 46 YEARS
R/AT 8-142, DEVI KRUPA HOUSE
KAJILA ARBI, MALALI POST
GANJIMATA GRAMA PANCHAYATH
THENKA ULLEPADY, MANGALURU TALUK
DAKSHINA KANNADA 587113.
2. SMT. VARIJA
AGED ABOUT 71 YEARS
D/O LATE JINNAPPA POOJARY
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
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MANGALORE TALUK
D K DISTRICT 574151.
3. SMT. NAGAVENI
D/O LATE JINNAPPA POOJARY
AGED ABOUT 65 YEARS
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
MANGALORE TALUK
D K DISTRICT 574151.
4. SMT. CHENNAMMA
D/O LATE JINNAPPA POOJARY
AGED ABOUT 61 YEARS
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
MANGALORE TALUK
D K DISTRICT 574151.
5. SMT. DEVAKI
D/O LATE JINNAPPA POOJARY
AGED ABOUT 57 YEARS
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
MANGALORE TALUK
D K DISTRICT 574151.
6. SMT. REVATHI
D/O LATE JINNAPPA POOJARY
AGED ABOUT 54 YEARS
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
MANGALORE TALUK
D K DISTRICT 574151.
7. SMT. SHOBHA
D/O LATE JINNAPPA POOJARY
AGED ABOUT 50 YEARS
R/AT VORKUBAGILU HOUSE
KANDAVARA VILLAGE AND POST
MANGALORE TALUK
D K DISTRICT 574151.
8. MR. GANGADHAR
S/O VISHWANATH POOJARY
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AGED ABOUT 47 YEARS
R/AT MOODUPERARA IGARJI PADAVU
MOODUPERARA POST AND VILLAGE
MANGALORE TALUK
D K DISTRICT 574144.
9. SMT. NALINAKSHI
D/O VISHWANATH POOJARY
AGED ABOUT 38 YEARS
R/AT MOODUPERARA IGARJI PADAVU
MOODUPERARA POST AND VILLAGE
MANGALORE TALUK
D K DISTRICT 574144.
10. SMT. B. GAYATHRI SHENOY
W/O B. GURUDATH SHENOY
AGED 50 YEARS
POOJA GOVINDA RESIDENCY
OPP: GOKARNANATHESHWARA COLLEGE
GANDHINAGAR, MANGALORE TALUK
D K DISTRICT 575003.
11. SRI. PURUSHOTHAM SHETTY
S/O LATE THIMMAYYA SHETTY
AGED 64 YEARS
R/AT NO 2-97, THOTA HOUSE
GANDHINAGAR GOVT. COLLEGE ROAD
KAVOOR, MANGALORE
D K DISTRICT 575015
...RESPONDENTS
(BY SRI. RAJASHEKAR S, ADV., FOR R1
R9, R10, R11 ARE SERVED AND UNREPRESENTED
V/O/DTD:25.11.2022 SERVICE OF NOTICE TO R2 TO R8 D/W)
---
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI AND QUASH THE ORDER DATED 14.09.2020 PASSED IN
O.S.NO.1038/2017 PENDING ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE MANGALURU D.K. (PRODUCED VIDE ANNEXURE-A) TO THE
WRIT PETITION & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
27.06.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the order dated
14.09.2020 passed in O.S.No.1038/2017 by the Principal Civil
Judge, Mangaluru, D.K.
2. Heard.
3. Sri.K.Ravishankar, learned counsel for the
petitioners submits that the respondent No.1 filed a suit for
partition and declaration that the sale deeds dated 16.11.2015
and 19.06.2017 are not binding on the plaintiff and does not
affect the right, title and interest of the plaintiff in the suit
schedule property. It is submitted that the respondent No.1
valued the suit for relief of partition at Rs.23/- for the purpose
of Court fee and Rs.64,558/- for the purpose of jurisdiction and
paid the Court fee of Rs.200/- as per Section 35(2) of the
Karnataka Court Fees and Suits Valuation Act, 1958
(hereinafter referred to as 'the Act') and valued the suit for the
relief of declaration at Rs.1,000/- and paid the Court fee of
Rs.25/- as per Section 24(d) of the Act, which are incorrect.
The respondent No.1 is required to value the relief No.2 as per
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Section 38 of the Act and for the purpose of jurisdiction, it
should be valued as per Section 50 of the Act.
4. It is further submitted that the Trial Court
considered the additional issue of Court fee and jurisdiction as
the preliminary issue and incorrectly came to the conclusion
that the suit is valued correctly and it has the jurisdiction. It is
also submitted that the petitioners are seeking declaration that
two sale deeds executed by their mother do not bind them. In
other words, they are seeking for cancellation of the sale
deeds. Hence, Section 38 of the Act is applicable and the Court
fee is required to be paid as per the market value and the suit
cannot be valued as per Section 24(d) of the Act. It is
contended that the Trial Court has not considered the effect of
Section 50 of the Act with regard to the jurisdiction as the
respondent No.1 failed to value the suit as per Section 50 of
the Act for the purpose of jurisdiction. It is further contended
that if the Court fee is valued as per Section 38 of the Act, the
respondent No.1 is liable to pay the Court fee as per the
market value and the Court which is now trying the suit, would
not have jurisdiction and the suit is required to be tried by the
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Senior Civil Judge. In support of his contentions, he placed
reliance on the following decisions:
(1) SUHRID SINGH ALIAS SARDOOL SINGH Vs.
RANDHIR SINGH AND ORS.1
(2) SHIVARAM BAPUCHAND SHAHA AND CO Vs.
2
HIRACHAND SAKHARAM MEHATA AND CO.
(3) THIBBAIAH Vs. DESIGOWDA3
(4) GURUPRASAD AND ORS. Vs. S.A.RUDRARADHYA AND
ORS.4
5. He seeks to allow the petition by setting aside the
impugned order and by directing the respondent No.1-plaintiff
to value the Court fee as per Section 38 of the Act and pay the
Court fee on the market value and value the Court fee as per
Section 50 of the Act and hold that the Court of Principal Civil
Judge, Mangaluru, has no jurisdiction to try the suit.
6. Per contra, Sri.S.Rajashekar, learned counsel
appearing for the respondent No.1 supports the impugned
order and submits that the Trial Court, has considered the fact
that the respondent No.1 is a non-executant to the sale deeds
against which declaration is sought in the plaint and held that
1
(2010) 12 SCC 112
2
(1987) 3 KAR.L.J. 571
3
(1992) 3 KAR.L.J. 745
4
(2010) 4 KAR.L.J. 102
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the suit is rightly valued as well as that the Court has
jurisdiction. It is submitted that the mother of respondent
No.1 executed a General Power of Attorney (GPA) on
11.04.1996 and on the strength of the said GPA, sale deed
dated 16.11.2015 was executed. However, the mother of the
respondent No.1 died on 01.04.2015. It is further submitted
that the respondent No.1 is not a party to the sale deeds.
Hence, he is seeking relief that the alleged sale deeds being
null and void are not binding on him. Accordingly, he has
computed the Court fee under Section 24(d) of the Act and
considering his share in the suit schedule property to be 1/21 in
respect of two items of the suit schedule property for the
purpose of jurisdiction has assessed the property value at
Rs.64,558/-, which is as per Section 35 of the Act. In support
of his contentions, he has placed reliance on the following
decisions:
(1) SUHRID SINGH ALIAS SARDOOL SINGH Vs.
RANDHIR SINGH AND ORS., referred supra
(2) SRI.VENKATESH S Vs. STATE OF KARNATAKA5
(3) SMT.DEEPTHI AND ORS. Vs. SMT.DEVAMMA AND
ORS.6
5
W.P.No.10782/18 decided on 29.05.18
6
W.P.No.33979/18 decided on 02.04.19
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(4) K.P.PONNAPPA Vs. K.P.POOVAIAH7
He seeks to dismiss the petition.
7. I have heard the arguments of the learned counsel
for the petitioners, learned counsel for the respondent No.1 and
perused the material available on record. I have given my
anxious consideration to the submissions advanced by both the
sides.
8. The respondent No.1 filed a suit in
O.S.No.1038/2017 seeking the following reliefs:
"a) For the partition of suit Schedule Property
into ½ shares with in metes and bounds with reference
to good and bad soil and to deliver 1 such share to the
Plaintiff.
b) To declare that the Sale Deed dated
16.11.2015 registered as Doct.No.MGT-1-07151/2015-
16 and preserved in C.D.No.MGTD411 and Sale Deed
dated 19.06.2017, registered as Doct.No.MGT-1-
03000/2017-18 and preserved in C.D.No.MGTD554 on
the file of Sub-Registrar, Mangalore Taluk is a void
document and the same is not binding on the Plaintiff
and does not affect the right title and interest of the
plaintiff in the suit schedule property.
c) For payment of full costs of the suit."
7
2000 ILR KAR 3382
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9. There is no dispute with regard to the relief No.1 by
the petitioner. The relief No.2 is for declaration that the sale
deeds dated 16.11.2015 and 19.06.2017 are void documents
and the same are not binding on the respondent No.1 and does
not affect the right, title and interest of the respondent No.1 in
the suit schedule property. The valuation slip annexed with the
plaint indicates that for the purpose of jurisdiction for the relief
No.1 of partition, the respondent No.1 totally valued item Nos.1
to 3 at Rs.13,55,718/- and out of that, his claim is for 1/21
share and valued the suit for the purpose of jurisdiction at
Rs.64,558/-. For the purpose of Court fee, for the relief of
partition, the respondent No.2 assessed the land revenue of 3
items totaling to Rs.109.50p. For the purpose of Court fee, the
share of the respondent No.1 of 1/21 is Rs.23/- and for the
valuation for the relief of declaration is Rs.1,000/- under
Section 24(d) of the Act and accordingly, he paid the Court fee
of Rs.25/-. The respondent No.1, at the end of paragraph 5 of
the plaint, has specifically asserted that the alleged sale deeds
have been fraudulently executed based on the alleged GPA
executed by his mother in favour of the defendant No.12 and
on the date of the execution of the sale deeds, she was not
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alive. The respondent No.1 is not a party to the sale deeds
against which declaration is sought. Hence, he is a non-
executant to the instrument in question.
10. It would be useful to extract the relevant
paragraphs of the decision of the Hon'ble Supreme Court in
SUHRID SINGH, referred supra, which are as under:
"6. The second proviso to Section 7(iv) of the Act
will apply in this case and the valuation shall not be less
than the value of the property calculated in the manner
provided for by clause (v) of the said section. Clause (v)
provides that where the relief is in regard to agricultural
lands, court fee should be reckoned with reference to
the revenue payable under sub-clauses (a) to (d)
thereof; and where the relief is in regard to the houses,
court fee shall be on the market value of the houses,
under sub-clause (e) thereof.
7. Where the executant 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
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sale. A has to sue for cancellation of the deed. On the
other hand, if B, who is not the executant 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 to have the deed set aside or declared as
non-binding. But the form is different and court fee is
also different. If A, the executant of the deed, seeks
cancellation of the deed, he has to pay ad valorem court
fee on the consideration stated in the sale deed. 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.
8. Section 7(iv)(c) provides that in suits for a
declaratory decree with consequential relief, the court
fee shall be computed according to the amount at which
the relief sought is valued in the plaint. The proviso
thereto makes it clear that where the suit for
declaratory decree with consequential relief is with
reference to any property, such valuation shall not be
less than the value of the property calculated in the
manner provided for by clause (v) of Section 7.
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10. We accordingly allow these appeals, set aside
the orders of the trial court and the High Court directing
payment of court fee on the sale consideration under
the sale deeds dated 20-4-2001, 24-4-2001, 6-7-2001
and 27-9-2003 and direct the trial court to calculate the
court fee in accordance with Section 7(iv)(c) read with
Section 7(v) of the Act, as indicated above, with
reference to the plaint averments."
[Emphasis supplied]
11. This Court, in the case of SRI. VENKATESH S,
referred supra, at paragraph 15 has held as under:
"15. It is settled position of law that where a person
who is not a party to the instrument seeks for a
declaratory relief to the effect that the said instrument
is not binding on the plaintiff, the valuation under
Section 24(d) of the Act can be resorted to, whereas a
party to a document, who seeks for relief regarding the
said document would be required to value the plaint in
terms of Section 38 of the Act, which provides for
cancellation of instruments. It appears that where a
person is a party to an instrument, any relief howsoever
crafted would amount to a relief relating to cancellation
of the said instrument and hence, appropriate valuation
under Section 38 of the Act is required to be made. In
the present case, there is no reason to exempt valuation
under Section 38 of the Act. The mere allegations of
fraud which, even if accepted, relates to partial failure
of consideration and does not permit the plaintiff to
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value the suit under Section 24(d) of the Act thereby
getting over the valuation under Section 38 of the
Karnataka Court Fees and Suits Valuation Act, which the
plaintiff considers as onerous."
12. In the case of SMT.DEEPTHI, referred supra, it is
held at paragraphs 9 and 10 as under:
"9. Having heard the learned counsel for the parties, it is an
undisputed fact that the plaintiffs filed a suit for partition,
possession in respect of the suit schedule properties and
consequentially the relief of declaration to declare the sale
deed dated 30.04.2014 executed by defendant No.1 in respect
of defendant Nos. 8 and 9 is not binding on the share of the
plaintiffs. On the application filed by the defendant Nos. 8 and
9, the trial court proceeded to frame the preliminary issue and
treated issue No.3 as the preliminary issue and directed the
plaintiff to pay the court fee under Section 38 of the Act mainly
on the ground that the plaintiff filed the suit for declaration to
set aside the order dated 30.04.2014 in favour of the
defendant Nos. 8 and 9 and the said sale is not binding upon
them for partition. It amounts to cancellation of the sale deed.
The trial court failed to notice that admittedly, the case of the
plaintiffs is that suit is for partition and separate possession
and they are entitled to their share in all the suit schedule
properties. They are only seeking for a declaration of the sale
deed dated 30.04.2014 as null and void and not binding upon
them and it does not amount to cancellation since they are not
the executants. Admittedly, it is not the case of the defendant
Nos. 1 to 7 that the plaintiffs have no share. The defendant
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Nos. 8 and 9 who are the bonafide purchasers and ultimately
suit has to be decided on merits.
10. In a partition suit, mere arguing that a particular sale deed
is not binding on the share of the plaintiffs does not amounts
to cancellation of the sale deed. Therefore, the learned judge is
not justified in directing the plaintiffs to pay the court fee
under Section 38 of the Act. My view is fortified by the
judgment rendered by this Court in the case of Sri. K.L.
Venugopal and Another Vs. Smt. Vimala K. Venugopal and
Others reported in 2018 (1) KLR 857 in an identical
circumstances this court as held at paras 16, 17 and 18.
xxxx"
13. This Court, in the case of K.P.PONNAPPA, referred
supra at paragraph 8 has held as under:
"8. Sub-clause (d) of Section 24 is the clause which
is relevant for our purpose. This provision makes it
manifestly clear that the Court fee payable in respect of
the relief of declaration by which neither possession of
the property is prayed not any consequential relief of
injunction with respect thereto is sought, it shall be
computed on the amount at which the relief sought is
valued in the plaint or rupees one thousand whichever is
higher. Therefore, the additional relief of declaration
added in the plaint by amending it squarely falls within
the purview of Section 24(c). This relief of declaration is
valued in the plaint at rupees one thousand and
accordingly, the Court fee thereon was computed and
paid as required by Section 24(d) the relief thus valued
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and Court fee computed thereon is therefore correct and
proper. The Court below is clearly in error in holding the
same as incorrect and improper and it is order
impugned herein is liable to be set aside."
14. Keeping in mind the enunciation of law laid down by
the Hon'ble Supreme Court, this Court and the relevant
provisions of law, I am of the considered view that the
respondent No.1 who is a non-executant to the sale deeds is
seeking annulment of the sale deeds in question. Seeking
annulment, not binding, is not amounting to seeking prayer for
cancellation by the executant as held by the Hon'ble Supreme
Court in the SUHRID SINGH, referred supra. Hence, the
contention that the respondent No.1-plaintiff is liable to pay the
Court fee as per Section 38 of the Act has no merit.
Admittedly, the sale deeds alleged to have been executed at
the strength of GPA dated 11.04.1996 is alleged to have been
executed by Smt.Kamalamma, the mother of the respondent
No.1 after the death of the said Smt.Kamalamma. The
respondent No.1-plaintiff is contending that the execution of
the sale deeds are fraudulent and not binding on him and is not
seeking cancellation of those instruments as provided under
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Section 38 of the Act, as an executant. Hence, he cannot be
compelled to pay the Court fee under Section 38 of the Act.
15. Insofar as jurisdiction is concerned, the petitioners
contended that the respondent No.1 has to value the suit under
Section 50 of the Act. The Trial Court, considering the effect of
the said Section, observed that no doubt there is no specific
provision under the Act for the purpose of determination of
pecuniary jurisdiction, but Section 50 of the Act has come into
play while determining the pecuniary jurisdiction and therefore,
as per Section 50(1) of the Act, the valuation for the purpose
of Court fee as well as jurisdiction are one and the same. The
said finding is based on the decision of this Court in the case of
THIBBAIAH, referred supra. I do not find any error in the
finding recorded by the Trial Court.
16. The Trial Court considered the additional issue as
the preliminary issue and after considering the pleading and
law on the subject, has recorded a clear finding that the
respondent No.1 is a non-executant to the documents to which
declaration is sought and rightly paid the Court fee as per
Section 24(d) of the Act and the assessment of Court fee for
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the purpose of jurisdiction. The judgments relied on by the
learned counsel for the petitioners have no application to the
facts and circumstances of the case. The law laid down by the
Hon'ble Supreme Court in the case of SUHRID SINGH,
referred supra covers the field. I do not find any error or
perversity in the finding recorded by the Trial Court calling for
interference in this petition.
17. For the aforementioned reasons, I proceed to pass
the following:
ORDER
The writ petition is devoid of merits and the same is accordingly rejected.
18. In view of the disposal of the writ petition, the pending interlocutory application does not survive for consideration and is accordingly disposed of.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 1