IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 33979 OF 2018(GM-CPC) BETWEEN:
1. SMT DEEPTHI, D/O LATE A S NAGARAJ, AGED ABOUT 38 YEARS, R/AT SUGGIKAL KOTE, CHIKKAMAGALURU - 577 101.
2. SMT. TRUPTI, D/O LATE A.S.NAGARAJ, AGED ABOUT 38 YEARS, R/AT NO. 401, VAISHNAVI NAKSHATHRA, YASHWANTHPURA RAILWAY STATION, YASHWANTHPURA, BENGALURU - 560 022.
3. KUMARI SHRUTHI, D/O LATE A.S.NAGARAJ, AGED ABOUT 28 YEARS, R/AT ANJUR ESTATE, JANNAPURA POST, MUDIGERE TALUK, CHIKKAMAGALUR - 577 132.
4. SMT. KRUTHI, D/O LATE A.S.NAGARAJ, AGED ABOUT 28 YEARS, R/AT SREE VEERABHDRASWARA ESTATE, HALASULIG POST, SAKLESHPURA TALUK, HASSAN DISTRICT - 573 134.
5. KUMARI ADITHI, D/O LATE A.S.NAGARAJ, AGED ABOUT 24 YEARS, R/AT ANJUR ESTATE, JANNAPURA POST, MUDIGERE TALUK, CHIKKAMAGALURU - 577 132.
(BY SRI. G CHANDRASHEKHARAIAH, ADV.) AND:
1. SMT. DEVAMMA W/O A P SHIVALINGAPPA GOWDA AGED ABOUT 88 YEARS, R/AT MEGALAYA ESTATE, BALLUPETE, BELAGUDU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT - 573 134.
2. SMT. A N JAYANTHI NAGARAJ W/O LATE A.S.NAGARAJ AGED ABOUT 58 YEARS, COFFEE PLANTER R/AT ANAJOOR VILLAGE AND POST MUDIGERE TALUK CHIKKAMAGALURU - 577 132 3. SMT. B N BHARATHI NIRANJAN W/O NIRANJAN AGED ABOUT 62 YEARS, R/O NO. 268, 1ST MAIN ROAD, ROYAL SHELTERS, IIMB POST BANNERUGHATTA ROAD, BENGALURU - 560 026.
4. SMT. JAYA NEELAKANTA W/O B S NEELAKANTA AGED ABOUT 60 YEARS, AGRICULTURIST … PETITIONERS R/AT MEGALAYA ESTATE, BALLUPET BELAGOD POST SAKLAESHPURA TALUK HASSAN DISTRICT - 573 134.
5. SMT. KOKILA ASHOK W/O B M ASHOK AGED ABOUT 51 YEARS, COFFEE PLANTER R/AT BILAGARAVALLI, VENKATIPETE POST BELUR TALUK HASSAN - 573 215.
6. SMT. KATYAYINI MADHUKAR W/O B N MADHUKAR R/AT NO. 159, 48TH CROSS, 3RD BLOCK, RAJAJINAGAR BENGALURU - 560 010.
7. SMT. DEVIKA SHEKAR JETTI W/O SHEKAR JETTI AGED ABOUT 44 YEARS, R/AT FLAT NO. 501, VAISHNAVI SAPHIRE 13TH CROSS 6TH MAIN, MALLESHWARAM BENGALURU - 560 055.
8. SRI C U HAROON, S/O LATE USMAN, AGED ABOUT 41 YEARS, R/AT NO. 1886, CHRISTIAN COLONY, CHIKKAMAGALURU - 577 101.
9. SRI P S ABDUL KHADER, S/O LATE ABDUL HAJEE, AGED ABOUT 59 YEARS, R/AT ARSHIA VILLA, 1ST CROSS, VASLANE, MANGALORE, DAKSHINA KANNADA - 575 001.
… RESPONDENTS (BY SRI. M RAVINDRANATH, ADVOCATE FOR SRI. DAYANAND S PATIL, ADVOCATE FOR R8 & 9; SRI. D R ANANDEESWAR, HCGP FOR STATE;
V/O DATED 29.08.2018 R1 TO 7 ARE DELETED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 16.7.2018 PASSED ON THE PRELIMINARY ISSUE IN O.S.NO. 135/2014 ON THE FILE OF THE SR. CIVIL JUDGE AND JMFC MUDIGERE VIDE ANNEX-A.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed the present writ petition against the order dated 16.07.2018 on a preliminary issue in O.S. No.135/2014 on the file of the learned Senior Civil Judge and JMFC, Mudigere, answering the same in the affirmative and directed the plaintiffs to value the suit under Section 38 of the Karnataka Court Fee and Suit Valuation Act, 1958 (‘Act’ for short) on A and B Schedule Property on market value as on the date of the suit and pay the court fee for their share and pay the court fee within one month from the date of the said order.
2. The plaintiffs filed a suit for partition, separate possession in respect of the suit schedule properties and for declaration to declare that the sale deed dated 30.04.2014 executed by the defendant No.1 alone in favour of defendant Nos. 8 and 9 alienating A and B schedule properties as document No.221/2014-15 at volume No.1, book No.2, registered in the office of the Sub-Registrar, Mudigere is not binding on the share of the plaintiffs and to grant such other reliefs mainly contending that the suit schedule properties are the properties of all the defendant Nos. 1 to 7 and the plaintiffs and they are entitled for a share. The defendant Nos. 1 to 7 have not filed any Written Statement objecting the same. But defendant Nos. 8 and 9 have filed their Written Statement denying the plaint averments contending that they are the bona fide purchasers of the suit schedule properties from the first defendant and the suit filed by the plaintiffs is not maintainable.
3. Thereafter, defendant Nos. 8 and 9 filed an application under Section 11(2) of the Act read with Section 126 of Code of Civil Procedure, 1908 to decide issue No.3 as preliminary issue i.e., “Whether the defendants prove that the valuation made is improper and court fee paid is insufficient?”
4. Reiterating the averments made in the application, it was opposed by the plaintiffs. The trial Court considering the application and the objections, by the impugned order dated 16.07.2018 allowed the preliminary issue in the affirmative and directed the plaintiffs to pay the court fee under the provisions of Section 38 of the Act, within one month. Hence the present writ petition.
5. I have heard the learned counsel for the parties to the lis and perused the material on record.
6. Shri Chandrashekaraiah, learned counsel appearing for the petitioner – plaintiffs contends that the impugned order passed by the trial court directing the plaintiffs to value suit on the market value under Section 38 of the Act in a partition suit is erroneous and contrary to the material placed on record. He would further contend that in a suit for partition, plaintiffs sought for a declaration that the alienation made by the first defendant in favour of the defendant Nos. 8 and 9 in respect of A and B schedule properties is not binding on the share of the plaintiffs does not amount to cancellation. Therefore the learned judge is not justified in answering the preliminary issue in the affirmative. He would further contend that the impugned order passed by the trial court is contrary to law and cannot be sustained. Therefore, he sought to allow the writ petition.
7. Learned High Court Government Pleader who assisted the Court in this case also sought to justify the impugned order.
8. Shri Ravindranath, learned counsel appearing for Sri Dayanand S Patil, advocate on record would contend that in a suit for partition and declaration, the sale deed executed by the first defendant in favour of defendant Nos.
8 and 9 is not binding on the plaintiffs is nothing but cancellation of the same. Therefore, the plaintiffs have to pay the court fee under Section 38 of the Act. Therefore, he prays for dismissal of the writ petition.
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 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.
“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 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 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 pen dense. Therefore, 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 pen dense. 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 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.
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.”
For the reasons stated above the impugned order passed by the trial court cannot be sustained.
10. Accordingly, writ petition is allowed. The impugned order dated 16.7.2018 passed by the learned Senior Civil Judge and JMFC, Mudigere in O.S. No. 135/2014 on the preliminary issue directing the defendants to pay the court fee under Section 38 of the Act is hereby quashed.
Consequently, the application filed by the defendant Nos. 8 and 9 in I.A.No.9 under Section 11(2) of the Karnataka Court Fee and Suit Valuation Act, 1958 is also dismissed.
No costs.
Sd/- JUDGE Bsv