Learned counsel for the petitioner has been heard at length and the present petition is being disposed of finally at the admission stage itself.
This is the defendant's petition. The matter pertains to the suit valuation and ascertainment of court fees by the trial court.
By means of the present petition, the petitioner is seeking to challenge the order dated 14.10.2011 passed by the Additional Civil Judge (S.D.), IIIrd Agra in Original Suit No.1039 of 2007 (Smt. Shashi Parashar & another Vs. Shri Dhruv Parashar & others), whereby while deciding issue no.3 & 4, the court below has reached at the conclusion that the suit is under valued and sufficient court fee has not been paid by the plaintiffs.
The said suit has been filed with the relief of declaration against the defendants for declaring the Will dated 02.04.2002, allegedly of the husband of the plaintiff no.1 and the power of attorney dated 03.05.2007 and the consequent sale deed dated 05.05.2007, in respect of the suit property, being null and void and the consequent cancellation of Will, Power of Attorney and the sale deed as aforesaid.
A perusal of the averments in paragraph no.32 of the plaint indicates that suit was valued on the sale consideration, on which, the sale deed dated 05.05.2007 was executed and it is stated therein that the court fee was being paid on 30 times of the land revenue i.e. Rs.13.89 of the 1/4th share of the plaintiff i.e. Rs.416.70/-. In the plaint, the plaintiff herself has asserted that the valuation of the suit property was much more than what has been indicated in the sale deed dated 05.05.2007. The grounds taken by the plaintiffs to challenge the sale deed in paragraph no.29(c) itself indicates that there was an admission of the plaintiffs that the market value of the suit property as applicable on 05.05.2007 was more than Rs.1 crore and the Circle rate as mentioned in paragraph no.2 of the sale deed being Rs.40 lakh per hectare, was false. The Circle rate as fixed by the District Magistrate, Agra Circle applicable in the area was Rs.2000/- per square meter + 10%, being corner plot rate i.e. Rs.2200/- per square meter.
The court below has reached at the conclusion that the suit was under valued and the ad valorem court fee was required to be paid by the plaintiff in view of the Section 7 (iv-A) of the Court Fees Act' 1870 (hereinafter referred as Act' 1870).
Challenging this order, learned counsel for the petitioner placed reliance upon the judgement of this Court in Rajendra Prasad Yadav Vs. Ravindra Nath Singh & others reported in 2014 (1) ADJ 304, and the Explanation to sub section (iv-A) of Section 7 of the Act' 1870 to contend that as per the said Explanation, the valuation of the suit property being an immovable property, has to be computed in accordance with sub Section (v) of Section 7. Submission is that Section 7 of sub section (v) provides that where the subject matter of the instrument is land, the value of the subject matter i.e. land would be assessed to 30 times of the revenue payable on the same. It is, thus, submitted that the court fee as paid by the plaintiffs on the value of the suit land to 30 time of the revenue payable with respect to the same cannot be said to be insufficient. The court fee paid by the plaintiff is in-conformity with the Explanation to section 7 (iv-A) of the Act' 1870.
Submission is that the court below has erred in ascertaining the suit valuation on the basis of the sale consideration and asking the plaintiffs to pay ad valorem court fee by treating the market value of the suit land same as the amount indicated in the sale deed.
The position of law with regard to the determination of suit valuation and the consequent court fee with regard to an immovable property, in a suit for declaration of sale deed as null and void, has been considered by a coordinate Bench of this Court in Rajendra Prasad Yadav (supra).
Testing this submission, it is relevant to note in the Division Bench judgement in Ram Kumar & others Vs. Damodar Das & others reported in AIR 1949 All 535 and another Single Judge judgment in Rameshwar Dayal Vs. Harish Chandra & others reported in 1972 AWR (42) 808, it was held that where the instrument executed refers to a property having a market value, the value of the subject matter for the purpose of court fee is the value of the property in respect of which, the instrument was executed, as per Section 7(iv-A) of the Act' 1870. The relevant observations of Division Bench of this Court as noted by the learned Single Judge in the Rajendra Prasad Yadav (supra) are reproduced as under:-
"It is clear that the determination of such value has been divided into two parts, firstly according to the amount for which the decree has been passed or the instrument executed and secondly with respect to the value of the property in respect of which the decree was passed or instrument executed. It seems to us, on a reading of the entire section, that amount refers to those decrees which are for money or to those instruments which secure money, while the value of the property in respect of which the decree was passed or instrument executed, refers to those cases where the decree was for the other property having such value. This seems to us to be the proper interpretation to be put on this section. Learned counsel for the plaintiffs appellants argues that the section really gives an alternative to the plaintiffs either to value this suit on the amount of the sale consideration or on the value of the property. We do not think that such an alternative is contemplated by the framers of the Act. We may add that wherever an alternative is contemplated, it is always mentioned whether the amount is greater or less out of the two possible amounts. For example, in Section 7(iv-B), it has been mentioned, while dealing with suit for injunction etc., the value is mentioned as half the amount for which attachment was made or half of the value of the property or interest attached, whichever is less. We are, therefore, of opinion that where the decree is for money or the instrument secures money, the value of the subject-matter is the amount of the decree or the amount of the money secured by the instrument. Where, on the other hand, the decree is for other property having a market value or the instrument secures other property having such value, the value of the subject-matter for the purposes of court-fee is the value of the property in respect of which the decree was passed or in respect of which the instrument was executed."
It was, thus, concluded by the Division Bench in Ram Kumar (supra) as under:-
"We are, therefore, of opinion that where the decree is for money or the instrument secures money, the value of the subject-matter is the amount of the decree or the amount of the money secured by the instrument. Where, on the other hand, the decree is for other property having a market value or the instrument secures other property having such value, the value of the subject-matter for the purposes of court fee is the value of the property in respect of which the decree was passed or in respect of which the instrument was executed."
The Division Bench has, thus, held that in a case where the relief involves cancellation of the sale deed, the court has to look to the value of the property in respect of which the sale was effected. In that case value of the suit properties as given in the plaint was Rs.1,50,000/- although the consideration in the sale deed was Rs.82,000/-. It was held by the Division Bench that the court fee should be paid on the value of the property admitted in the plaint. The conclusion drawn by the lower court to demand the court fees on the valuation of the suit property shown in the plaint, therefore, was upheld.
The coordinate Bench of this Court in Rajendra Prasad Yadav (supra) has also held that the valuation of the suit for cancellation of sale deed is to be arrived on the market value of the subject matter of sale, and the sale consideration as indicated in the sale deed, cancellation of which has been sought in the suit, cannot be the sole determinant of the market value. Taking note of the Explanation to Section 7 (v-A) of the Act' 1870, it was held therein that for determination of market value of an immovable property, provisions as contained therein can be taken as a guiding factor. It has been held therein that the court below fell in error by taking the sale consideration setforth in the instrument ignoring the provisions of the Explanation to Section 7 (iv-A) of the Act' 1870 as applicable in the State of U.P.
However, in paragraph no.20 of the said judgment, it was observed by this Court that there may be a case where the sale consideration may reflect the market value for the purpose of valuing the suit. But where the plaintiff has assigned a valuation, by determining the market value on the basis of the Explanation, the same cannot be discarded merely because it is different from the sale consideration setforth in the instrument. The reasons given therein is that it is the market value of the subject matter on which the suit referable to Section 7(iv-A) of the Court Fees Act is to be valued and not on the sale consideration setforth in the instrument.
Thus, from a careful reading of the judgment of the Division Bench in Ram Kumar (supra) and the decision of the coordinate Bench of this Court in Rajendra Prasad Yadav (supra), on Explanation to section 7 (iv-A) of the Act, this Court finds that there cannot be a doubt about the fact that the sale consideration setforth in the instrument, subject matter of a suit for cancellation of the said instrument, cannot be made the sole determinative factor for valuation of the suit and payment of court fee under Section 7 sub section (iv-A) of the Act. It has to be on the market value of the property, which is subject matter of instrument i.e. in respect of which, the instrument has been executed. Explanation to sub section (iv-A) of Section 7 also substantiates the view taken by the court in as much as, it is provided therein that the value of the property "for the purpose of sub section (iv-A) shall be the market value".
The learned counsel for the petitioner also admits this legal position. He however, referring to the second part of Explanation to sub Section (iv-A) submits that the market value of an immovable property can be computed only by the method given in Sub section (v), (v-A) & (v-B) & ad valorem court fee cannot be demanded by adopting any other method of find out the market value.
The expression "market value" in the Explanation to sub section (iv-A) of Section 7 has been sought to be explained by creating a deeming fiction for computation of valuation, in case of the suit property being immovable property and it was provided that the computation as provided in sub section (v), (v-A) or (v-B) shall be made to find out the market value of an immovable property.
Thus, sub section (iv-A) provides that the value of the property, "in respect of which" the instrument is executed, shall be the market value and in a suit for or involving cancellation of such an instrument, it has to be valued on the market value of such property. The Explanation to sub section (v-A) further clarifies the said position. It is in two parts;(i) the first part of the explanation says that the value of the property "for the purpose of sub section (v-A), shall be the "market value"; (ii) by second part, a deeming fiction is created for computation of the market value of the immovable property, to import the method for such computation as provided with respect to the lands, categorized under sub section (v), (v-A) or (v-B).
In the opinion of the Court, the legal fiction created by the words "which in the case of immovable property shall be deemed to be the value" "as computed in accordance with sub section (v), (v-A) and (v-B)" "as the case may be" is limited to such land or lands which fall(s) under any of the categories provided in sub section (v), (v-A) and (v-B) and cannot be extended to include all such immovable properties, which do not qualify the categories provided in the aforesaid sub sections. It would not be correct to contend that the legal fiction contained in the second part of the explanation is independent of the first part rather it should be regarded as a provision by way of clarification of the first part i.e. of an existing legal situation in relation to such immovable properties which are covered under the sub sections (v), (v-A) and (v-B) i.e. are subjected to land revenue on the date of institution of the suit.
The legal fiction in the second part of the explanation cannot be said to cover all categories of immovable properties, irrespective of the provisions of sub section (v), (v-A) and (v-B).This fiction has been introduced in addition to what has been provided in the first part i.e. to provide a method as to how market value of the subject matter will be computed.
It is a rule of interpretation well settled that in construing scope of a legal fiction, it would be proper and even necessary to assume all those facts on which alone the legal fiction can operate. A legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. The court will not overstretch the language of the statute in order to improve on the efforts of the legislature and to fill gaps which are left open for the statute. Reference be made to the judgment in Bengal Immunity Co. Ltd. Vs. State of Bihar & others reported in AIR 1955 SC 661 followed in Magan Lal Vs. M/s Jaiswal Industries, Neemach & others reported in 1989 4 SCC 344.
Reference may also be made to State of Bombay Vs. Pandurang Vinayak & others reported in 1953 AIR SC 244 wherein it was observed by Mahajan, J. that when statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The following observation of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 (B) have been quoted with approval and are reproduced as under:-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it........ The statute says that you must imagine a certain state of affairs."
Further the observations of the Apex Court in the case of Premier Breweries Vs. State of Kerala reported in 1998 (1) SCC 641 as to the interpretation of a deeming clause, with the aid of observation by Lord Radcliffe in St.Aubyn (L.M.) vs. A.G. (No.2) (1952) AC 15, are also relevant to be quoted herein as under:-
"The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."
It has further been held in paragraph no.12 in Premier Breweries (supra) as under:-
"Pathak, C.J. was of the view that in Section 6-C the deeming clause should be given a restricted meaning and at best, should be regarded as a provision by way of clarification of an existing legal situation. In other words, the deeming clause merely restated what was otherwise obvious."
See also AIR 1963 SC 1448; Vadilal Lallubhai, etc. etc. Vs. Commissioner of Income Tax, Gurarat reported in 1973 (3) SCC 17; Hira H. Advani etc Vs. State of Maharashtra reported in AIR 1971 SC 44 and Dr. Baliram Waman Hiray Vs. Mr. Justice B.Lentin & others reported in AIR 1988 SC 2267.
The Explanation to sub section (iv-A) thus, creates a legal fiction for a definite purpose to compute the market value where the subject matter of the suit is immovable property. The true effects of that fiction is that it imports the provisions of section (v), (v-A) & (v-B) and apply to such lands which are covered under the said provisions.
Learned counsel for the petitioner also could not dispute the legal position as aforesaid.
However, he seeks to submit that the clause 1(a) of sub section (v) is attracted to the subject matter of the instant suit, in as much as, the suit property in the instant case is an agricultural land for which, annual land revenue is payable. The said assertion is based on the details of the suit property given in the foot of the plaint and the assertions in paragraph no.32 of the plaint. But, it is admitted to the learned counsel for the petitioner that it has not been disclosed in the plaint that the land, subject matter of the suit, forms an estate or part of an estate paying annual revenue to government and that it is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled.
In absence of any such clear assertions only from the averments in paragraph no.32 of the plaint and the description of the suit property at the foot of the plaint, it cannot be assumed that the suit land has been assessed with the land revenue and is entered in the Collector's register for the purpose. The court fee paid by the plaintiff on the assertion in paragraph no.32 of the plaint, therefore, cannot be held to be sufficient.
Further, it is noteworthy that the plaintiff in paragraph no.29(c)(v) and (xiv) has stated that the Collector, Agra has fixed circle rate for the land in question to the tune of Rs.2000/- per square meter at the time of execution of the sale deed dated 05.05.2007 and the plot in question being corner plot, 10% addition shall be made in the circle rate and the market value of the suit property would be Rs.2200/- per square meter on the date of execution of the sale deed. The circle rate as mentioned in the sale deed being Rs.40 lac per hectare is false. It is averred that the endorsement made by the Sub Registrar on the back side of page no.2 of the alleged sale deed dated 05.05.2007 having been executed on the market value of the property sold, is false. There is an admission of the plaintiff of the suit property worth being more than Rs.1 crore on the date of execution of the sale deed. The valuation on the date of institution of suit, therefore, would be much more.
For the above discussions, though it is found that the trial court has rightly appreciated the legal position that ad valorem court fees has to be paid by the plaintiff but has erred in computation of the market value on the basis of the sale consideration of the sale deed dated 05.05.2005. The appropriate course for the trial court was to find out the market value of the suit property after considering the assertions in the plaint and objections of the defendants. The trial court while doing such an exercise could not have treated the valuation disclosed in the sale deed as correct indication of the market value. Moreover, the claim of the plaintiffs/petitioners herein that the land is assessed to land revenue and, therefore, the market value has to be determined as per sub-section (v)(1)(a) was also required to be examined after considering the evidences on record. Simultaneously, due consideration should have been given to the plaint averments in paragraph no. 29(c)(v) and (xiv) of the plaint (as noted above) alongwith the objections of the defendants.
In any case the suit could not have been valued on the sale consideration of the sale deed in question, as observed by the trial court.
The issue nos.3 and 4, thus, has to be decided afresh by the trial court by returning a finding in the light of the observations made herein above. An endeavor shall be made to decide the said issues, preferably, within a period of one month from the date of submission of certified copy of this order without granting any unnecessary adjournment to any of the parties.
In case the trial finds that the suit is under valued and the court fees paid therein is insufficient, it shall grant a reasonable time to the plaintiff to make good the deficiency.
Subject to the above observations and directions, the present petition is disposed of.
Order date 28.01.2019 Himanshu