Karnataka High Court
Sri K L Venugopal vs Smt Vimala K Venugopal on 23 February, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 23RD DAY OF FEBRUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.16065/2014(GM-CPC)
BETWEEN:
1. SRI K. L. VENUGOPAL,
AGED ABOUT 66 YEARS
S/O LATE K.C. LAKSHMAIAH
RESIDING AT NO.460,
"SUMITHRA NILAYA"
OPPOSITE TO DR.KONNAPPA'S HOUSE,
PRASHANTHA NAGAR,
CHICKBALLAPUR-562 101.
2. SRI. K.L. MADHUSHANKAR,
AGED ABOUT 61 YEARS,
S/O LATE K.C. LAKSHMAIAH,
RESIDING AT NO.19/4,
4TH MAIN, S.K. NAGAR,
NANDINI LAYOUT POST,
BANGALORE-560 096.
... PETITIONERS
(BY SRI RAMESH CHANDRA, ADVOCATE)
AND:
1. SMT. VIMALA K. VENUGOPAL,
W/O LATE K.L, VENUGOPAL
AGED ABOUT 80 YEARS,
2. SMT. JANAKI KODIGI,
D/O LATE K.L. VENUGOPAL,
AGED ABOUT 54 YEARS,
3. SRI. VENKATARAYA K.V.
S/O LATE K.L. VENUGOPAL
AGED ABOUT 49 YEARS,
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4. SRI. CHANNARAYA K.V.,
S/O LATE K.L. VENUGOPAL,
AGED ABOUT 51 YEARS,
5. DR. (MRS.) SAMYUTHA KOPPULA,
D/O LATE K.L. VENUGOPAL
AGED ABOUT 55 YEARS,
6. SMT. JAYASHREE SIVAKUMAR,
D/O LATE K.L. VENUGOPAL
AGED ABOUT 53 YEARS,
7. SMT. VYJAYANATHI KODIGI MANKANI
D/O K.L. VENUGOPAL,
AGED ABOUT 48 YEARS,
RESPONDENTS NO.1,2,3,4,5,6,& 7 ARE ALL
RESIDING AT 203/E,
6TH "B" MAIN, 27TH CROSS,
3RD BLOCK, JAYANAGAR,
BANGALORE-560 011.
8. SMT. SUMITRA VENUGOPAL,
W/O K.L. VENUGOPAL,
AGED ABOUT 58 YEARS,
9. SRI. K.V. GURURAJ,
W/O K.L. VENUGOPAL,
AGED ABOUT 34 YEARS,
RESPONDENT NO.8 AND 9 ARE ALL
RESIDING AT NO.460,
"SUMITHRA NILAYA"
OPPOSITE TO DR.KONNAPPA'S HOUSE,
PRASHANTHA NAGAR,
CHICKBALLAPUR-562 101.
10. SMT. K.L. BHARATHI,
AGED ABOUT 63 YEARS,
W/O K.L. LAKSHMAN,
11. SMT. L. HEMAPRABHA,
D/O LAKSHMAN AND K.L. BHARATHI,
AGED ABOUT 39 YEARS
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RESPONDENTS 10 AND 11
ALL RESIDING AT NO.579,
AGRAHARA EXTENSION,
RAGHAVENDRASWAMY MUTT ROAD,
RAMANAGARA,
RAMANAGARA DISTRICT 562 159.
12. SMT. LAKSHMI MADHUSHANKAR,
W/O MADHUSHANKAR,
AGED ABOUT 46 YEARS,
13. SMT. RASHMI,
D/O MADHUSHANKAR,
AGED ABOUT 33 YEARS,
14. SRI. K.M. SUPRTITH,
S/O MADHUSHANKAR
AGED ABOUT 30 YEARS,
15. SRI. K.M. MANIKANTA,
S/O K.L. SHANKAR,
AGED ABOUT 22 YEARS,
RESPONDENTS 12,13,14 AND 15
ARE ALL RESIDING NO.19/4,
4TH MAIN, S.K. NAGAR,
NANDINI LAYOUT POST,
BANGALORE-560 096.
16. SMT.N.LEELAVATHI PRABHAKAR,
AGED ABOUT 53 YEARS,
W/O LATE K.L. PRABHAKAR,
17. SRI. K.P. HARSHA,
AGED ABOUT 37 YEARS,
S/O LATE K.L. PRABHAKAR,
18. SMT. K.P. NIRMALA,
AGED ABOUT 39 YEARS,
D/O LATE K.L. PRABHAKAR
RESPONDENTS NO.16,17 AND 18 ARE
RESIDING AT NO U-2,
LEELAVATHI NILAYA,
GANESHA BLOCK, I MAIN ROAD,
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SHESHADRIPURAM,
BANGALORE-560 020.
19. SMT.K.V. MEENA LOKESH,
W/O LOKESH
AGED ABOUT 38 YEARS,
RESIDING AT "PRAGATHI"
BENSON TOWN,
BANGALORE 560 046.
20. SMT. H.L. HEMAVATHI,
W/O K.C. BHARATH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.547
ANNAIAH REDDY LAYOUT,
DODDABANASVADI,
BANGALORE-560 043.
21. SMT. H.L. HEMALATHA,
D/O LAKSHMAN AND K.L. BHARATHI,
AGED ABOUT 43 YEARS,
22. SRI. B.V. NARASIMHA MURTHY,
S/O VENKATANARASAIAH,
AGED ABOUT 51 YEARS,
RESPONDENTS NO.21 AND 22
ARE ALL RESIDING AT NO.1125,
NINAADA 5TH MAIN, 2ND CROSS,
PADMANABHA NAGAR,
BANGALORE 560 070.
23. SMT.K. SARASWATHI,
W/O P.R. RAMESH,
AGED ABOUT 41 YEARS,
24. SRI. P.R. RAMESH,
S/O LATE RUDRA MURTHY,
AGED ABOUT 53 YEARS,
RESPONDENTS 23 AND 24 ARE
RESIDING AT NO.144,
PARVATHIPURAM, LALBAGH,
FORT ROAD, BANGALORE-560 004.
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25. BRUHAT BANGALORE MAHANAGARA PALIKE,
BANGALORE-560002,
REPRESENTING BY ITS COMMISSIONER,
26. STATE OF KARNATAKA
VIDHANA SOUDHA,
BANGALORE-560001.
REPRESENTED BY
ITS SECRETARY.
... RESPONDENTS
(BY SRI K. SHANMUKHAPPA, ADVOCATE FOR R1 TO R7;
SRI B.H. SURESH BABU, ADVOCATE FOR R23 TO R24;
SMT. R. ANITHA HCGP FOR R26;
VIDE ORDER DATED 05/09/2014 NOTICE ON R8 TO R22 AND
R25 IS DISPENSED WITH)
...
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ANNEXURE-A ORDER DATED 5.12.2013, PASSED BY THE
LEARNED ADDITIONAL CITY CIVIL & SESSIONS JUDGE AT
BANGALORE IN O.S.1942/2009 & DIRECT THE R-1 TO 7 TO PAY
PROPER COURT FEE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Defendant Nos.1 and 7 have filed the present writ petition against the order dated 5th December, 2013 made in O.S.No.1942/2009 on Preliminary Issue No.9 holding that the defendants have failed to prove that the suit of the plaintiffs is not properly valued for the purpose of payment of Court fee as the value of the 6 property is more than Rs.4 Crores as stated in the written statement.
2. Respondent Nos. 1 to 7, who are the plaintiffs before the trial Court filed suit for declaration of Sale Deed dated 26.8.2005 executed in favour of defendant Nos. 19 and 20 in respect of the suit schedule property registered on 26.8.2005 in the office of the Sub- Registrar, Basavanagudi, Bangalore as null and void and not binding on them; to cancel the Khata effected in favour of defendant Nos. 19 and 20 vide order dated 4.11.2006 by the 21st defendant and also subsequent Khatas issued in different numbers in respect of the schedule property; consequently to grant permanent injunction restraining defendant Nos. 19 and 20 from alienating, encumbering or creating any changes on the suit schedule property contending that they are the owners in possession and enjoyment of the suit schedule property right from 1957; they have paid the 7 taxes to the concerned authority and they still are continuing to pay the bills of water, electricity and telephone standing in the name of K.L. Venugopal , late Sri K.C. Lakshmaiah and some of the past tenants of late Sri K.L. Venugopal which clearly establish the fact that defendant Nos. 1 to 17 have no legal right whatsoever in respect of the schedule property. They further contended that RFA No.526/1998 is pending before this Court and the schedule is the subject matter of suit - O.S.No.415/1980 and the said appeal is pending consideration wherein defendant Nos. 1 to 17 colluded and conspired with defendant Nos. 19 and 20 and have executed the Sale Deed dated 26.8.2005 conveying the schedule property in favour of defendant Nos. 19 and 20. The said Sale Deed is void and the same is not binding on them, who are the wife and children of late Sri K.L. Venugopal, etc., and sought for the relief as prayed for.
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3. Defendant Nos. 1 to 3 filed written statement denying the plaint averments and contended that the court fee paid is highly insufficieint and the plaintiffs cannot value the property for a paltry sum. The suit being not properly valued and the court fee paid being insufficient, the question of court fee has to be decided as a preliminary issue under Section 11 of the Karnataka Court Fees and Suits Valuation Act. They have further contended that the defendant Nos. 19 and 20 have purchased the schedule property for a sum of Rs.2,15,00,000/- and the market value of the property as on the date of filing of the written statement was more than Rupees Four Crores, the suit being for cancellation of Sale Deed, the suit cannot be proceeded unless proper court fee is collected. They further contended that the declaration sought by the plaintiffs that the Sale Deed dated 26.8.2005 is not binding and barred by limitation under Article 58 of the Limitation Act, etc., and sought for dismissal of the suit. 9
4. In view of the rival contentions urged, the trial Court framed as many as 17 issues on 3.3.2011 and issue No.9 was heard as a preliminary issue i.e., "Whether defendant Nos. 1 to 3 prove that the suit of the plaintiffs is not properly valued for the purpose of payment of court fee as the value of the property is more than Rupees Four Crores as contended in the written statement"?
5. The plaintiffs have not examined any of the witness but defendant Nos. 19 and 20 have examined one witness as D.W.1 and reiterated the averments made in the written statement.
6. The trial Court considering the application and the entire material on record, recorded a finding that defendant Nos. 1 to 3 have failed to prove issue No.9 and accordingly, held that issue in negative. It also held that the Court fee paid by the plaintiffs is sufficient. 10 Hence, the present writ petition is filed by the defendant Nos.1 and 7.
7. I have heard the learned Counsel for the parties to the lis.
8. Sri Ramesh Chandra, learned Counsel for the petitioners vehemently contended that the impugned order passed by the trial Court negating issue No.9 and holding that the Court fee paid by the plaintiffs is sufficient is erroneous and contrary to the material on record. He further contended that the suit is not one for declaration simplicitor as they are seeking declaration to themselves and to declare that the Sale Deed dated 26.8.2005 is executed in favour of defendant Nos. 19 and 20. Therefore, the trial Court ought to have directed the plaintiffs to pay sufficient court fee holding issue-9 in the affirmative. He would further contend that the trial Court unnecessarily without any basis has come to the conclusion that the court fee paid is 11 sufficient by relying upon the judgment which is not applicable to the facts and circumstances of the present case. He would further contend that the prayer in the suit is to declare that the Sale Deed as null and void and not binding on the plaintiffs, amounts to cancellation. Therefore, the plaintiffs ought to have paid the Court fee under the provisions of Section 38 of the Karnataka Court Fees and Suits Valuation Act . In support of his contentions, he relied upon the latest judgment of the Hon'ble Supreme Court in the case of J. Vasanthi -vs- N. Ramani Kanthammal reported in AIR 2017 SC 3813 to contend that since the document sought as null and void and for declaration of injunction has to pay court fee as held by the Hon'ble Supreme under the provisions of Sections 25(d) and 40 of the Tamilnadu Court Fees and Suit Valuation Act which is para-materia with Section 24(d) and 38 of the Karnataka Court Fees and Suits Valuation Act. Therefore he sought to quash the impugned order 12 passed by the trial Court by allowing the present writ petition.
9. Per contra, Sri Sangamesh, learned Counsel for the plaintiffs sought to justify the impugned order and contended that the plaintiffs are not signatories to the Sale Deed dated 26.8.2005 said to have been executed by defendant Nos. 1 to 17 in favour of defendant Nos. 19 and 20, who have no right in respect of the suit schedule property. Therefore, the same is null and void and not binding on the plaintiffs. Hence, it does not amount to cancellation. The court fee paid by the plaintiffs under the provisions of Section 24(d) of the Karnataka Court Fees and Suits Valuation Act is perfectly just and proper. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court in the case of Suhrid Singh -vs- Randhir Singh reported in AIR 2010 SC 2807 to the effect that where an executant sought declaration of particular Deed as null 13 and void, it amounts to cancellation. Where a non executant seeks annulment of a deed, he has to seek for a declaration that the Deed is invalid, or nonest, or illegal or it is not binding on him and it does not amount to cancellation. Therefore, he sought to dismiss the writ petition.
10. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record carefully.
11. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for declaration contending that they are the owners in possession of the suit schedule property and the Sale Deed dated 26.8.2005 executed in favour of defendant Nos. 19 and 20 by defendant Nos. 1 to 17 is null and void and not binding on the plaintiffs. The same is disputed by the defendants by filing the written statement denying the entire plaint averments and 14 contended that they were the owners of the property in question and hence, sought for dismissal of the suit.
12. Based on the pleadings, the trial Court framed 17 issues and issue No.9 has been treated as preliminary issue since the court fee was involved.
13. By reading of the entire plaint averments, it clearly depicts that the plaintiffs have specifically pleaded that they are the owners and in possession and enjoyment of the suit schedule property. The Sale Deed executed in favour of defendant Nos. 19 and 20 during the pendency of appeal - RFA No. 526/1998 was hit by the provisions of Section 52 of the Transfer of Property Act - Lis pendense and not binding on the plaintiffs, who are owners of the suit schedule property. The contentions urged by the plaintiffs in the plaint and the defendants in the written statement with regard to merits of the suit has to be adjudicated by the trial Court after the conclusion of both oral and 15 documentary evidence on record. While determining the court fee, the Court has to look into the plaint averments as contemplated under the provisions of Section 10 of the Karnataka Court Fees and Suits Valuation Act.
"10. Statement of particulars of subject matter of suit and plaintiff's valuation thereof.- In every suit in which the fee payable under this Act on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint, a statement in the prescribed form, of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint."
14. It is an undisputed fact that the plaintiffs are not the executants of the Sale Deed dated 26.8.2005 and according to them, they are the owners of the suit schedule property and there are in possession. The 16 person, who has no right has executed the Sale Deed in favour of defendant Nos. 19 and 20. Therefore they sought for declaration of the Sale Deed dated 26.8.2005 as null and void and not binding on the plaintiffs which does not amount to cancellation. Therefore the contention of the learned Counsel for the petitioners that they have to pay court fee under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act cannot be accepted.
15. It is also an undisputed fact that in the present case, the plaintiffs are not seeking any declaration of title. They have specifically contended that they are the owners in possession and hence sought for declaration of Sale Deed dated 26.8.2005 as null and void and not binding on them. Therefore, Section 24(b) of the Karnataka Court Fees and Suits Valuation as contended by the learned Counsel for the petitioners is also not applicable to the present case. 17
16. The Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors 2010(12) SCC 112 at page 7, 8 and 9 has held as under:
"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 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 18 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 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 19 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.
9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery"
and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the 20 sale consideration mentioned in the sale deeds."
17. The trial Court considering the rival contentions urged, has recorded a specific finding that in the present suit, it is an admitted fact that the plaintiffs are in possession of the suit schedule property and they have not claimed any relief for declaration of title. They have claimed for a declaration that the Sale Deed dated 26.8.2005 is null and void and as such, not binding on them. It is the substantive relief claimed by the plaintiffs. Admittedly, the plaintiffs are not parties to the sale deed and it was alleged in the plaint that the sale deed executed between defendants is interese when RFA 526/1998 was pending before the High Court of Karnataka. The suit was also one of the subjects in the proceedings pending before the High Court. As such, it was contended that the sale deed executed during the pendency of the suit is hit by lis pendense. Therefore, 21 the plaintiffs need not claim relief for cancellation of said sale transaction when it is alleged that the document itself is a void document. However, they can claim the relief for declaration that the sale deed is not binding on them. The defendants have failed to prove that the suit schedule property is valued for the purpose of court fee under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act is incorrect, when the plaintiffs are not parties to the sale transaction or sale deed and when it is alleged that the sale deed is hit by lis pendense. The plaintiffs need not pay the court fee on the actual market value of the sale consideration. As such, the plaintiffs have rightly valued the suit for the purpose of payment of court fee under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act. Accordingly, it was held that the court fee paid by them is sufficient and defendant Nos.1 to 3 have failed to prove issue No.9 i.e., that the suit is not properly valued for the purpose of payment of court fee as the value of 22 the property is more than Rs.4 Crores as stated in written statement.
18. Very strangely all the defendants, who raised the issue in written statement, are not before this Court. Only defendant Nos. 1 & 7 are before this Court questioning the validity of the impugned order. In view of the pleadings in the plaint and the specific prayer is only to declare that the Sale Deed dated 26.8.2005 executed by defendant Nos. 1 to 17 in favour of defendant Nos.19 and 20 is null and void and not binding on the plaintiffs, the court fee paid by the plaintiffs on the plaint as on the date of the suit was in accordance with law. The trial Court rightly negated the issue framed at the instance of defendant Nos. 1 to 3. The petitioners have not made out any ground to interfere with the impugned order passed by the trial Court in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 23
19. In so far as the judgment relied upon by the learned Counsel for the petitioners in the case of Vasanthi's case, it was a case where the executant of Sale Deeds filed a suit for declaration that the sale deeds executed as null and void and for permanent injunction. Under those circumstances, the Hon'ble Supreme Court held that once the executant sought declaration as null and void, it amounts to cancellation of Sale Deeds. Therefore, they were liable to pay court fee under the provisions of Section 25(d) and 40 of the Tamilnadu Court fees and Suit Valuation Act, 1955.
20. Admittedly in the present case, the plaintiffs are not executants of the document sought as null and void. They are only seeking declaration of the said Sale Deed as null and void and not binding on them, not amounts to cancellation. Therefore, the said judgment relied upon by the learned Counsel for the petitioner has no application to the facts and circumstances of the 24 present case. In fact in the very judgment at para-18 while discussing the difference between executant, who executes the Sale Deed and stranger, who has not executed, the Hon'ble Supreme Court has held that:
"18. The High Court posed two questions, namely, (i) whether in the Suit filed for Declaration that the Sale Deeds are invalid, Court Fee paid under Section 25(d) of the Act is incorrect and
(ii) whether the impugned order directing the Plaintiff to pay the Court Fee under Section 40 of the Act suffers from any infirmity warranting interference. Dealing with the factual matrix, the High Court observed:
"Thus, the Plaintiff himself is a party to the Sale Deed; when the Party himself seeks to get rid of the Sale Deeds in substance it amounts to Cancellation of Decree. The Plaintiff might seek to avoid the Sale Deeds if he is not a party to the Sale Deeds. But, 25 since the Plaintiff himself is a party to the Sale Deeds before he is suing for any relief, the Plaintiff must first obtain the cancellation of the Sale Deeds."
And again:
"The word "Cancellation" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suit is one for cancellation. in the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and misrepresentation the Plaintiff cannot seek for any further relief without setting aside the Sale Deeds.
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xxxxx
The allegation on the Plaint in
substance mounts to cancellation of the document. Though the prayer is couched in the form of seeking declaration that the document is not valid and not binding, the relief in substance indirectly amounts to seeking for cancel- lation of the Sale Deed. Learned District Munsif was right in ordering payment of Court Fee under Section 40 of the Act. This Revision Petition has no merits and is bound to fail."
Being of this view, the High Court dismissed the civil revision and directed the plaintiff to pay court fee with further stipulation that unless paid, plaint would stand rejected."
21. In view of the aforesaid reasons, the impugned order passed by the trial Court and conclusion arrived at by the trial Court is just and 27 proper and no interference is called for in exercise of supervisory powers of this Court under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
22. The learned Counsel for both parties submit that the matter is posted for the evidence of the defendants and the suit is of the year 2009. Since we are in the year 2018, if both the parties to the lis and their respective Counsel exhibit institutional responsibility, there is no impediment for the learned trial Judge to expedite the suit itself subject to co- operation by the learned Counsel for the parties to the lis.
Sd/-
Judge Nsu/-