1. Challenge in this petition is to the order passed by the learned Principal Civil Judge, Patdi below Exh. 22 in Civil Suit No. 55 of 2010 passed on 29th June 2011.
1.1 A controversy arises in the following factual background :
1.2 The petitioner is the son of respondent No. 1 and brother of respondent No. 2 and 3. Agricultural land bearing survey No. 562/1 situated in village Savda, Taluka Dasada, District Surendranagar which belonged to father of respondent No. 1 herein. The petitioner and respondents No. 1 and 3 herein cultivate and reside at the suit land, which is an ancestral property.
2. It is alleged that the petitioner having come to know illegal sale deed executed by the respondent Nos 1 to 3 in favour of respondent No. 4 on 30th October 2007 filed Civil Suit No. 55 of 2010 before the Principal Civil Judge, against respondents seeking inter alia for cancellation of the said sale deed dated 30th October 2007 executed for consideration of Rs 1,10,000/ and for the partition of the suit land and injunction.
3. The dispute with regard to the Court fees paid on the said suit is Rs 5725/ which includes a sum of Rs 3,075/ in respect of the relief for cancellation of the sale deed dated 30th October 2007 and Rs 2,050/ in respect of the 1/4th share of the petitioner in the suit land. The suit was valued at Rs 1,15,600/ by the petitioner as stated in the plaint including value of the property as Rs 1,10,000/ as per the sale deed under challenge.
4. The respondent filed an application Exh. 22 requesting the Court to pass an appropriate order with respect to deficit payment of Court fees and improper valuation of the same.
5. After hearing both the sides the Court passed the impugned order which is challenged in the present petition raising various grounds in this petition.
6. Mr Vimal Patel learned advocate appearing for the petitioner has pointed out the provisions of section 6(9) as well as 6(15), 6(13). The entire emphasis of the learned advocate was that wherever the legislature has deemed it appropriate, the term 'market value' has been incorporated whereas in the provisions of section 6(9), there is no such reference of 'market value' and it only mentions value of the property. He has heavily relied on the decision of the Apex Court in the case of Satheedevi V. Prasanna and Anr reported in AIR 2010 Supreme Court 2777 where the Apex Court has interpreted the provisions of Kerala Court fees and Suits Valuation Act where also similar question arose before the Court.
7. On the other side learned advocate Mr. Ravindra Shah has contended that Court shall also need to keep in mind Gujarat Court Fees Act, 2004 which has been interpreted by this Court in the case of Rajnikant Babubhai Modi Vs Maheshbhai Babubhai Modi in Special Civil Application No. 11657 of 2009 dated 10th February 2010 and the Court had permitted the Court fees on the basis of 'Jantri' prices which are based on the market value of the suit property and therefore, deficiency in the court fees was directed to be paid to the petitioner of that case on the basis of market price prevalent of the suit property. In the instant case also however, he fairly submitted that he has no answer to the decision of the Apex Court where identical provisions of Kerala Court fees and suit valuation Act have been interpreted.
8. Having thus heard learned advocates for the parties and having examined the controversy alongwith material on record it would not be necessary to interfere with the order passed by the learned trial judge for the reasons to be followed hereinafter.
9. It is an undisputed fact that the suit preferred by the petitioner is in respect of the cancellation of the sale deed dated 30th October 2010 executed for consideration of Rs 1,10,000/ as well as for the partition of the suit land and the injunction. To narrow down the controversy in respect of the court fees paid by the petitioner in the Civil Suit No. 55/10, at the outset it needs to be made a mention that as far as the partition of the suit is concerned there is no challenge to the amount paid and the only challenge before this Court is with regard to the Court fees paid in respect of cancellation of the sale deed where admittedly the sale consideration is a sum of Rs 1,10,000/.
10. As can be noted from the order of the learned Civil Judge it interpreted the value of the property as the 'market value' of the property. Although this judgment of Apex Court rendered in case of Satheedevi Vs. Prasanna (supra) was pressed into service before this Court, however, the Court in its order emphasised that the words “ for which the document was executed as they appear in section 40 of Kerala Court fees and Suits Valuation Act in section 6(9) of the Gujarat Court Fees Act and thereby did not apply the ratio of the Apex Court to the case of the present petition.
9. It would be worthwhile to make note of provisions of sub clause (9) Section 6 of the Gujarat Court Fees Act which speaks of the computation of fees payable in certain suits.
“6(9) In suit for declaration that any sale or contract for sale or termination of the contract for sale of any moveable or immoveable property is void, onehalf of the ad valorem fee leviable on the value of the property.”
6(13) In suits for the possession of land, houses and gardens according to the value of the subject matter, and such value shall be deemed to be, where the subject matter is a house or garden according to the market value of the house or garden and where the subject matter is land,”
6(15) In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not, the plaintiff is in actual or constructive possession of the property of which he claims to be a coparcener or co owner according to the value of the share in respect of which the suit is instituted”
10. Here also in the instant case it is a suit for declaration and for cancellation of contract for the sale of immoveable property and therefore the act requires ½ of the ad valorem fees on the value of the property. There is no dispute with regard to the interpretation made nor any amount of Court fees paid for the share in the joint property and therefore, there is no requirement to either discuss or interpret these provisions.
11. Restricting to the interpretation of provisions of sub clause 9 of Section 6 admittedly the words used in this section 6(9) are “value of the property”. Learned advocate for the petitioner has rightly pointed out that in many provisions of this Act like sub clause (9) of Section 6, admittedly the words used are “value of the property” .
12. Learned advocate for the petitioner has also submitted appropriately that in some of the other provisions like sub clause (3) of Section 6 the words used are “market value of the property” and therefore, there is a reason to believe that wherever the legislature has deemed it fit to use the words “market value” the same has been provided for explicitly. In such circumstances the ratio laid down by the Apex Court in Satheedevi's case (supra) respect of Kerala Court Fees Act would have a direct bearing on the subject. It can be noted from the said decision that this dispute before the Apex Court was concerning the document which was in respect of cancellation of the sale deed executed by one respondent in favour of the other respondent wherein value of property in plaint was shown at Rs 7 lakhs. However, the trial court had directed the payment of the Court fees on the market value of the plaint which was confirmed by the High Court. When challenged before the Apex Court the entire thrust of the argument was of the expression “value of the property document to be executed” and Apex Court compared various provisions of this Act and particularly Section 40 and Sections 7 shall be relevant for our purpose which are under :
“ 40 Suits for cancellation of decrees.
(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 subjectmatter of the suit, and such value shall be deemed to be if the whole decree or other documents 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 documents is such that the liability under it cannot be”
Section 7 Determination of market value
(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of agricultural land in suits falling under sections 25(a), 25(b), 27(a), 29, 30, 27(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.
(3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.
(3A) The market value of any property other than agricultural land and building falling under subsections (2) and (3) shall be the value it will fetch on the date of institution of the suit.
(4) Where the subjectmatter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the the total net income from the property.”
13. The Apex Court reiterated the recognised rules of the interpretation of the statute by stating that the primary and vital rule of construction is that the intention of the legislature must be found from the words used by the legislature. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. After detailed analysis it held as under :
Clause (a) of subsection (3) lays down that market value of any property other than agricultural land and building shall be the value it will fetch on the date of institution of the suit. Subsection (4) lays down that where subject matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest . Section 40 deals with suits for cancellation of decrees etc. which are not covered by other sections. If this section is interpreted in the light of the expression 'save as otherwise provided' used in section7(1), it becomes clear that the rule enshrined therein is a clear departure from the one contained in section 7 read with sections 25,27, 29, 30, 37, 38, 45 and 48 which provide for payment of court fee on the market value of the property. In that sense, Section 40 contains a special rule. Section 40(1) lays down that in a suit for cancellation of a decree for money or other property having a money value, or other document sought to be canceled, 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 constitute the basis for fixation of court fee, Subsection (2) lays down that 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 the property belonging to the plaintiff or the plaintiff's share in such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less. The deeming clause contained in the substantive part of Section 40(1) makes it clear that in a suit filed for cancellation of a document which creates any right , title or interest in immovable property, the court fees is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of court fee. If the expression 'value of the subject matter of the suit' was not followed by the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words “for which' appearing between the words “property” and “other documents” clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document ,which is subject matter of challenge.
12. If the legislature intended that fee should be payable on the market value of the subject matter of the suit filed for cancellation of a document which purports or operates to create, declare, assign, limit or extinguish any present or future right, title and interest, then it would have, instead of incorporating the requirement of payment of fees on value of subject matter specifically provided for payment of court fee on the market value of the subject matter of the suit as has been done in respect of other types of suits mentioned in Sections 25, 27, 29, 30, 37, 38, 45 and 48. The legislature may have also, instead of using the expression “value of the property for which the document was executed”, used the expression “value of the property in respect fo which the document was executed”. However, the fact of the matter is that in Section 40(1) the legislature has designedly not used the expression 'market value' of the property”.
10. As the ratio would be directly applicable to the case of the present case as interpretation of the provisions of Gujarat Court Fees Act shall have to be done on the line of the said ratio and as the words used are the value of the property it was not correct for the Court to interfere with the disputed property and therefore, the order passed is erroneous and requires to be quashed and set aside. Resultantly, this petition is allowed. The order passed by the learned Principal Civil Judge below Exh. 22 passed in Civil Suit No.55/10 dated 29th June 2011 is hereby quashed and set aside.
11. The petitions stand disposed of in above terms with no order as to costs.
(Ms. Sonia Gokani,J.) mary//