Smt Suguna W/O Madhusudhan Ural vs V Sunil Kumar Holla S/O U Lakshman Holla

3. Smt. Sudarshana U., W/o. T. Nagabhushan Aithal, Aged about 39 years, R/o. Shrungagiri, 6th Cross, III Parallel Road, Ravindranagar, Shimoga City - 577 201. ...PETITIONERS (By Sri R.V. Jayaprakash, Adv.) 2

AND:

1. V. Sunil Kumar Holla, S/o. U. Lakshman Holla, Aged about 42 years, R/o. "Spoorthi", Uppunda, Byndoor Hobli, Kundapur Taluk, Udupi District - 576 232.

2. Smt. Sumana, W/o. Umesh Alse, Aged about 46 years, R/o. Mukunda Nilaya, Alse Compound, Udupi Town, Udupi District - 576 101.

3. U. Bhaskar Holla, S/o. Shankar Holla, Aged about 59 years, R/o. Mathru Nilaya, Near Govt. Junior College, Uppunda, Byndoor Hobli, Kundapur Taluk, Udupi District - 576 232.

4. State of Karnataka, By its Revenue Secretary, Vidhana Soudha, Bangalore - 560 001. R4 amended vide order dated 13.4.2012. ...RESPONDENTS (By Sri S.V. Prakash, Adv. for R1; Sri Sajan Poovayya, AAG for Smt. Geetha J. Kadur, HCGP for R4; R2 & R3 are served but unrepresented)

This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash Annexure-G, the order dated 18.11.2011 in O.S.No.12/2008 on the file of the Sr. Civil Judge at Kundapura. 3

This petition having been reserved, the Court made the following:

ORDER

Material facts of this case are that, petitioners are

the plaintiffs and respondents are the defendants in

O.S.No.12/2008 pending in the Court of Senior Civil Judge

at Kundapura. Suit was filed on 16.09.2008 to pass a

decree for partition and allotment of separate possession

of the plaintiffs' 3/5th share in the plaint schedule

properties by metes and bounds and for awarding of the

future mesne profits. Defendant No.1 filed written

statement on 24.11.2008 denying the plaint averments

and seeking dismissal of the suit. On 06.01.2009, plaintiffs

filed I.A.2 for grant of permission to amend the plaint. The

application having been dismissed on 17.12.2009, Writ

Petition No.4823/2010 filed there-against was allowed on

22.04.2010 and the plaintiffs were permitted to amend the

plaint on certain terms. By incorporating the amendment,

the plaintiffs have sought for passing a decree for

cancellation of a sale deed dated 27.01.1997 in respect of 4

the plaint 'A' schedule properties and to declare a sale

deed dated 10.11.2008 executed by the 1st defendant in

favour of defendant Nos.2 and 3 in respect of the portions

of plaint 'A' schedule properties, as null and void and not

binding on their share. After incorporating the amendment

a fresh valuation slip was filed. The relief of cancellation of

registered sale deed dated 27.01.1997 which was for a

total consideration of `79,000/- was valued at `79,000/-

and Court fee of `5,155/- was paid under S.38 of the

Karnataka Court-Fees and Suits Valuation Act, 1958 ('the

Act' for short). In so far as for the relief of declaration that

the two sale deeds dated 10.11.2008 executed by

defendant No.1 in favour of the defendant Nos.2 and 3

during the pendency of the suit as null and void and not

binding on their share, the plaintiffs have valued the said

relief at `1,000/- under S.24(d) of the Act and Court fee of

`25/- was paid for the said relief. Thus, the plaintiffs have

paid additional Court fee of `5,180/- on the additional

reliefs incorporated in the plaint pursuant to the order

dated 22.04.2010 passed in Writ Petition No.4823/2010. 5

The 1st defendant has filed additional written statement on

13.07.2010 and contended that the valuation made by the

plaintiffs is not proper and that sufficient Court fee has not

been paid. Trial Court has raised an additional issue on

09.08.2010, whether the 1st defendant proves that the suit

has not been properly valued and the Court fee paid is

insufficient? Said issue was treated as preliminary issue.

In the valuation slip dated 16.09.2008 annexed to the

plaint, the total value of the suit properties was shown as

`44 lakhs and the 3/5th share of the plaintiffs as

`26,40,000/-, for the purpose of pecuniary jurisdiction.

The said valuation having been accepted and the plaintiffs

having valued the relief for cancellation of the deeds under

S.38 of the Act, applying the decision rendered in the case

of Smt. Damegunta Rajeshwaramma and another Vs. Smt.

Jayalakshmamma and others, ILR 2010 Kar 2288, the Trial

Judge directed the plaintiffs to pay the Court fee on

`26,40,000/-. Trial Judge held that the Court fee paid is

insufficient and additional issue No.1 was answered in the 6

affirmative on 18.11.2011. Assailing the said order this

writ petition has been filed.

2. Sri R.V. Jayaprakash, learned advocate for the

petitioners contended that the main relief sought for by

the plaintiffs is for cancellation of registered sale deed

dated 27.01.1997 said to have been executed by the

plaintiffs and the 2nd defendant and their mother in favour

of the 1st defendant in respect of plaint 'A' schedule

property as vitiated by fraud, misrepresentation and

mistake and to declare the said document as null and void

and not binding on the share of the plaintiffs and to pass a

decree for partition and separate possession entitling the

plaintiffs to 3/5th share in all the suit properties. He

submitted that the 1st defendant having sold plaint A

schedule property in favour of defendants 2 and 3 during

the pendency of the suit i.e., on 10.11.2008, the same is

null and void and not binding on the shares of the

plaintiffs. He submitted that the cancellation of sale deed

dated 10.11.2008 by the 1st defendant in favour of 7

defendants 2 & 3 being ancillary, the main relief has to be

valued under sub-Section (1) of S.38 of the Act i.e., on the

amount of consideration shown in the registered sale deed

dated 27.01.1997. In support of the contention, he relied

on the decision in the case of Satheedevi Vs. Prasanna

and another, 2010 AIR SCW 3754 and an order passed in

the case of Smt. Anandamma and others Vs. Sharada alias

Munithayamma, 2011(1)KCCR 52 and submitted that the

learned Trial Judge has committed material irregularity and

the impugned order being vitiated is unsustainable.

3. Sri S.V. Prakash, learned advocate appearing

for the respondent Nos.1 to 3 on the other hand placed the

reliance on the decision in the case of Mr. V. Prabhakar V/s

Mr. K. Raja and others, 2013 (1) KCCR 570 and submitted

that the view taken in the matter by the Trial Judge being

justified, no interference with the impugned order is

warranted.

4. Since the matter pertains to payment of Court

fee, by an order dated 13.04.2012, the petitioners were 8

directed to implead the Sate of Karnataka represented by

its Revenue Secretary and learned Additional Advocate

General was directed to accept notice and appear in the

matter. Sri Sajjan Poovaiah, learned Additional Advocate

General appeared and submitted that S.38 of the Act is

pari materia with S.40 of the Kerala Court Fees and Suits

Valuation Act, 1959 (for short 'Kerala Act') and neither

S.38 of the Act nor S.40 of the Kerala Act refer to 'market

value'. A written submission dated 21.03.2013 was filed

and he submitted that wherever the legislature has

intended that market value be applied, it has expressly

stated so. He submitted that since S.38 of the Act relating

to suits for cancellation of decrees etc., does not provide

for payment of court fees on market value, in as much as

it provides for value of the property for which the

document was executed, the value denoted in the

document should govern the process of calculation of court

fee.

9

5. What is the court-fee payable in a suit filed for

cancellation of a document and for passing a decree for

partition and separate possession is the question that

arises for consideration?

6. Petitioners by amending the plaint have sought

for cancellation of a registered sale deed dated 27.01.1997

executed in favour of the 1st defendant in respect of the

plaint 'A' schedule properties and to declare the registered

sale deeds dated 10.11.2008 executed by the 1st

defendant in favour of the defendant Nos. 2 and 3 as null

and void and not binding on their shares and for partition

and separate possession of their 3/5th share in all the

items of the suit properties by metes and bounds. They

have paid the Court fee of `5,155/- on the basis of the

consideration amount shown in the registered sale deed

dated 27.01.1997 i.e., `79,000/-. As far as the relief with

regard to the registered sale deeds dated 10.11.2008, the

plaintiffs have valued the same under S.24(d) of the Act at

`1,000/-, since the said sale deeds were executed during 10

the pendency of the suit and they have paid the Court fee

of `25/-.

7. S.38 of the Act reads thus:

"38. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall 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 other document was executed:

if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.

Explanation 1.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.

Explanation 2.- In a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property."

The provision is very specific. The provision

contemplates that the Court fee shall be computed on the 11

value of the subject matter of the suit and such value shall

be deemed to be the amount or the value of the property

for which the document was executed. The provision

makes it very clear that what is intended is only the value

shown in the document and there is nothing to suggest

that the amount or value of the property should be

construed as one of market value.

8. In the case of R. Rangaiah Vs. Thimma Setty,

1963(1) MLJ 67, this Court interpreted S.4 Clause (iv) of

the Mysore Court Fees Act, 1900, which is substantially

similar to S.38 of the present Act. The said decision was

followed in the case of Smt. Damegunta Rajeshwaramma

(supra), which was decided on 06.04.10. In the case of

Satheedevi (supra), decided by the Apex Court on

07.05.2010, after noticing in para 25 of the judgment the

interpretation which had been placed by the Division Bench

in the case of R. Rangaiah (supra), it has been held that

the decision do not make out the correct law on the

ground that this Court did not appreciate that the 12

legislature has designedly used different language in the

section and the term that the 'market value' has not been

used therein. Apex Court has held that the order directing

the appellant to pay the court fee on the market value of

the property in respect of which the sale deed was

executed by the respondent No.1 in favour of the

respondent No.2 are liable to be set aside and the Trial

Court was directed to proceed and decide the case in

accordance with law.

9. Apex Court, in the case of Satheedevi (supra)

has considered S.40(1) of the Kerala Act, which provision

is substantially similar to one contained in S.38 of the

Karnataka Act. Apex Court having considered the decision

in the case of R. Rangaiah (supra) and the views

expressed by the other Hon'ble High Courts in the matter

of payment of court fees for setting aside the document

with reference to the question, as to whether it was the

value shown in the document or the present market value

that should be taken for determining the Court fee, has

opined that, when there is special Rule in the Act for valuing 13

the property for the purpose of Court fee, that method of

valuation must be adopted in preference to any other method.

It has been further held that the Court Fees Act certainly

contains a special Rule for valuing the property for the

purpose of Court Fee and as such, there is no question of

substituting the expression 'value of the property' with the

expression 'market value of the property' as is clear from

the following statement of law:-

"30. In view of our analysis of the relevant statutory provisions, it must be held that the judgments of the Division Bench of Madras High Court and of the learned Single Judges in Venkata Narasimha Raju v. Chandrayya, (AIR 1927 Mad 825) (supra), Navaraja v. Kaliappa Gounder (supra), Arunachalathammal v. Sudalaimuthu Pillai (supra) and Andalammal v. B. Kanniah, (AIR 1972 Mad 5) (supra) as also the judgment of the learned Single Judge of Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla Venkatanarayana, (AIR 1975 AP 122) (supra) lay down correct law. In the first of these cases, the Division Bench of Madras High Court rightly observed that when there is a special rule in the Act for valuing the property for the purpose of court fee, that method of valuation must be adopted in preference to any other method and, as mentioned above, Section 40 of the Act certainly contains a special rule for valuing the property for the purpose of court fee and we do not see any reason why the expression `value of the property' used in Section 40(1) should be substituted with the expression `market value of the property'.

31. The judgment of the learned Single Judge of Madras High Court in Balireddi v. Khatipulal Sab, (AIR 1935 Mad 863) (supra), which was approved by the Full Bench of 14

that Court in Kutumba Sastri v. Sundaramma, (AIR 1939 Mad 462) (supra) turned primarily on the interpretation of Section 7(iv-A) of the Court Fee Act as amended by Madras Act which refers to the value of the property simpliciter and the Court interpreted the same as market value. Neither the learned Single Judge nor the Full Bench were called upon to interpret a provision like Section 40 of the Act. Therefore, the ratio of those judgments cannot be relied upon for the purpose of interpreting Section 40 of the Act. In Arunachalathammal v. Sudalaimuthu Pillai (supra), the learned Single Judge rightly distinguished the judgment of the Full Bench by making a pointed reference to the language employed in Section 40(1) of the Madras Act No.XIV of 1955, which is identical to Section 40 of the Act. In Sengoda Nadar v. Doraiswami Gounder and others, (AIR 1971 Mad 380) (supra) and S.Krishna Nair and another v. N. Rugmoni Amma, (AIR 1976 Mad 208) (supra), the other learned Single Judges did not correctly appreciate the ratio of the judgment of the coordinate Bench in Arunachalathammal v. Sudalaimuthu Pillai (supra) and distinguished the same without assigning cogent reasons.

We may also observe that if the learned Single Judges felt that the view expressed by the co-ordinate Bench was not correct, they ought to have referred the matter to the larger Bench. The judgments of the Division Benches of Kerala High Court in Krishnan Damodaran v. Padmanabhan Parvathy (supra), P.K. Vasudeva Rao v. Hari Menon, (AIR 1982 Ker 35) (supra) and Pachayammal v. Dwaraswamy Pillai (supra) and of the learned Single Judges in Appikunju Meerasayu v. Meeran Pillai (supra) and Uma Antherjanam v. Govindaru Namboodiripad and others (supra) also do not lay down correct law because the High Court did not appreciate that the legislature has designedly used different language in Section 40 of the Act and the term `market value' has not been used therein. The same is true of the judgments of the learned Single Judges of Mysore and Rajasthan High Courts noticed hereinabove."

(emphasis supplied by me) 15

10. Since the legislature in its wisdom has used

only the expression of 'value' for the purpose of payment

of Court fee under S.38 of the Act, in contradiction to the

assessment of the value for computing the Court fee in the

other provisions of the Act, it is the value which is shown in

the instrument, the cancellation which has been sought, which

is the material for the purpose of levying the Court fee.

11. In the case of Smt. Anandamma (supra), it has

been held that, in a suit for cancellation of a document and

possession of the property, the court fee has to be paid

only under S.38(1) of the Act, on the value of the property

as indicated in the document and not on the market value

of the property on the date of the suit. Such view has

been taken, by following the statement of law in the

decision of the Apex Court in the case of Satheedevi

(supra).

12. Another learned Single Judge who decided on

24.05.2012, the case of Mr. V. Prabhakar (supra), has not

been appraised of the decision of the Apex Court in the 16

case of Satheedevi (supra) decided on 07.05.2010, which

decision was followed and the case of Smt. Anandamma

(supra), decided on 18.10.2010. The learned Single Judge

has followed the decision of Sri R. Rangaiah (supra), which

has been held as not good law by the Apex Court, in the

case of Satheedevi (supra). Since the view taken in the

case of Mr. V. Prabhakar (supra), is not inconsonance with

the said two decisions, the same is not a binding

precedent.

13. In view of the above, the expression 'value' as

found in S.38 of the Act, must be treated as 'value shown

in the document', the cancellation which has been sought

in the suit and not on the market value of the property

covered under the document as on the date of filing of the

suit.

14. The learned Trial Judge having not noticed the

relevant provisions of the Act and also the decisions in the

case of Satheedevi and Smt. Anandamma (supra), has

erroneously directed the plaintiffs to pay the court fee on 17

the market value of the property. The plaintiffs are

expected to pay the Court fee on the amount shown in the

impugned sale deed dated 27.01.1997. Undeniably, the

value shown in the document is `79,000/- and the

plaintiffs have paid the Court fee accordingly. Therefore,

the impugned order being illegal is unsustainable.

In the result, the writ petition is allowed and the

impugned order is quashed.

Parties are directed to bear their respective costs.

Sd/-

JUDGE Ksj/-