IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.14735 OF 2019 (GM-CPC) BETWEEN:
1. SMT.SUMATHI A SHETTY AGED ABOUT 66 YEARS W/O LATE K.ANANDA SHETTY 2. SRI RAJESH SHETTY AGED ABOUT 48 YEARS S/O LATE K.ANANDA SHETTY 3. SMT.REKHA SHETTY AGED ABOUT 46 YEARS D/O LATE K.ANANDA SHETTY W/O SURESH SHETTY 4. SMT.ROOPA SHETTY @ ROOPA BHAT AGED ABOUT 42 YEARS D/O LATE K.ANANDA SHETTY W/O RAMANARAYANA BHAT ALL ARE R/AT ANANDA SHETTY COMPOUND, URWA HOIGE BAIL ASHOKNAGAR POST MANGALURU-575 006 (BY SRI UDAYA PRAKASH M., ADV.) AND:
SRI MANESHA SHETTY AGED ABOUT 43 YEARS S/O LATE K.ANANDA SHETTY ... PETITIONERS R/AT “SRI VINAYAKA” NAGABRAHMA GUNDA BALI ODIKAL, BALOOR VILLAGE MANGALURU-575 006 …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:19.02.2019 PASSED ON PRELIMINARY ISSUE NO.5 BY THE 4TH ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K., IN O.S.NO.559/2016 AS PER ANNEXURE-A AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Defendants Nos.1 to 4 have filed the present writ petition against the order dated 19.2.2019 passed on preliminary issue No.5 made in O.S.No.559/2016 holding that the suit of the plaintiff is properly and correctly valued for the purpose of court fee and jurisdiction and the Court fee paid by the plaintiff is correct.
2. 1st respondent herein who is the plaintiff before the trial Court has filed the suit for declaration, permanent prohibitory injunction and partition and to declare the release deed dated 24.03.2012 registered before the Sub-Registrar, Mangaluru City in respect of the schedule property as null and void and not binding on the plaintiff restraining the defendants, their men, servants etc., or anybody claiming under them from alienating, mortgaging, encumbering or transferring the schedule property in any manner in favour of 3rd parties and for partition into five equal shares and allotment of one such share to the plaintiff.
3. It is contended in the plaint that the suit schedule property originally owned by the father of plaintiff and defendant Nos.2 to 4 and husband of defendant No.1 late K.Ananda Setty. The plaintiff acquired absolute right as per sale deed dated 11.05.1990 registered as Doc.No.185/1991 before the Sub-Registrar of Mangaluru City. After the death of Sri K.Ananda Shetty, the schedule property was inherited by his legal heirs i.e. the parties to the suit and the RTC was also mutated in their joint names. Now the plaintiff and defendants are in possession and enjoyment of their undivided rights without any let claim or hindrance from anyone. It is further submitted that even though the plaintiff had executed GPA in favour of defendant No.1, the last two lines of page No.2 at para No.7 starting from “And to execute and register the release deed in favour of our mother Smt.Sumathi A. Shetty”, was initially not mentioned in the said GPA. Even if the GPA (typing style) is observed by naked eye, it is very much clear that the said lines are added at later point of time after its authentication, for the purpose of executing a release deed. The said addition has changed the entire purpose for which the GPA was initially executed by the plaintiff and hence, the addition/manipulation amounts to material alteration of the terms incorporated in the said GPA. The said addition was made without the consent or knowledge of the plaintiff and hence, any document executed on the basis of said addition is null and void and not binding on the plaintiff. The plaintiff reasonably suspect that all the defendants are colluding with each other to defeat the rights of the plaintiff over the schedule property and being benefits by alienating the same and etc., Therefore, filed the suit for the relief sought for.
4. All the defendants have filed separate written statements and denied the plaint averments. The first defendant contended that the plaintiff and other defendants executed the GPA. Based on the GPA, the plaintiff had executed release deed in favour of his mother and sought for dismissal of the suit. The trial Court has framed eight issues on 17.04.2017 and additional issue on 02.02.2018 and issue No.5 has treated as preliminary issue. The trial Court considering the entire material on record by the impugned order dated 19.02.2019 held issue No.5 in the affirmative holding that the plaintiff has properly and correctly valued for the purpose of court fee and jurisdiction and Court fee paid by the plaintiff is correct. Being aggrieved by the order passed by the trial Court, the present writ petition is filed.
5. I have heard the learned counsel for the petitioners.
6. Learned counsel for the petitioners contended that the impugned order passed by the trial Court holding issue No.5 in the affirmative is erroneous and contrary to the material on record. He would further contend that the trial Court has come to the wrong conclusion that the plaint must be valued only for the purpose of relief of partition to the extent of 1/5th share of the plaintiff, forgetting for the moment that the plaintiffs rights and possession was already lost under a registered release deed. Unless the release deed is set aside, plaintiff cannot have any right over the property in question. He would further contend that suit is for declaration to declare that the alleged release deed executed by the 1st defendant on the release deed, the Court fee has to be paid under the provisions of 24(a) of the Karnataka Court Fee and Suits Valuation Act, 1958 (for short ‘the Act’). But the same has not been considered by the trial Court. He would further contend that the market value of the property pertaining to the 1st relief being `24,04,224.84/- and declaratory relief being for the declaration of the whole document as null and void and not limited to 1/5th right of the plaintiff, the Court below has committed serious error in appreciating the contentions. Hence, he submits that the Court has no jurisdiction to entertain the very suit itself. Hence, sought to allow the writ petition.
7. In support of his contention, learned counsel for the petitioner relied upon the judgment of this Court in the case of Smt. Muniyamma Vs. Chinnaiah and others reported in (2010) 3 AIR Kant R 899 and para No.23 reads as under:
23. Be that as it may, when the issue regarding jurisdiction is raised with reference to Court fee payable and determination thereof would touch upon the jurisdiction of Court to try the suit, would not prevent such Court from examining, scrutinising and adjudicating the same as a preliminary issue since the issue regarding jurisdiction is the foundation of any suit. In this context, it would be necessary to observe that Order 14, Rule 2 empowers the Court to try a issue as preliminary issue if it relates to jurisdiction.
8. He has also relied upon another judgment in the case of M/s. Gurjar Power Engineer Pvt. Ltd., V. Karnataka State Small Industries Development Corporation Ltd., and others reported in AIR 2000 KARNATAKA 68 and he sought to allow the writ petition.
9. Having heard the learned counsel appearing for the petitioner, it is not in dispute that the plaintiff has filed the suit for declaration, permanent prohibitory injunction and partition and to declare the alleged release deed registered before the Sub registrar, Mangalore as null and void and not binding on the plaintiff. It is the case of the plaintiff that the plaint schedule property originally owned by his father late K. Ananda Shetty. After his death, the plaint schedule property was inherited by the plaintiff and defendants as his legal heirs. Accordingly, plaintiff had 1/5th shares in the suit property.
10. It is also not in dispute that on the basis of the pleadings, the trial Court framed issues and issue No.5 treated as preliminary issue with regard to the purpose of Court fee and jurisdiction. The trial Court considering the entire material on record recorded a finding as under:
10. After hearing the arguments canvassed by the counsel for the plaintiff and the counsel for the defendants and on careful consideration of the pleadings of the parties, it has observed that the plaintiff has filed the suit for the relief of declaration and same is valued at `1,000/- and a court fee of `25/- is paid under Section 24(d) of the Karnataka Court Fee and Suit Valuation Act. The relief of permanent prohibitory injunction is valued at `1,000/- and a Court fee of `25/- is paid thereon under Section 26(c) of the Karnataka Court Fee and Suit Valuation Act. The relief of partition is valued at `4,00,000/- and a court fee of `200/- is paid thereon under Section 35(2) of the Karnataka Court Fee and Suit Valuation Act.
11. In order to decide the question regarding the valuation of the suit, plaint averments only be looked into. On clean observing of the plaint allegation it shows that, the plaintiff not sought for any declaration of title. Further, the plaintiff is claiming three separate reliefs. There is no consequential relief claimed by the plaintiff. In such circumstances, declaration does not fall under Section 24(b) of KCF & SV Act, but it falls under Section 24(d) of the KCF & SV Act.
12. For the claim of partition, the plaintiff has valued the suit at `4,00,000/- and paid the Court fee of `200/- as stated early. The defendants have seriously opposed that the Court will exceeds the pecuniary jurisdiction. Hence, enquiry conducted on Preliminary issue. The defendant No.1 examined as DW.1 and got marked guide line valuation of the immovable properties and buildings maintained by the office of the Sub-Registrar, Mangaluru for the period of 01.04.2017 to 31.03.2018 as Ex.D1. According to the defendant, the relevant entry in Ex.D1 is the Ex.D2, that reads as under:
“3. Dgï.¹.¹. ZÁªÀtÂ, PÁAQæÃmï/EnÖUÉ UÉÆÃqÉ, «næ¥ÉÊqï £É®ºÁ¸ÀÄ, ºÉÆ£Éß ªÀÄgÀzÀ QlQ ¨ÁV®ÄUÀ¼ÀÄ: ¥æÀw ZÀ.«ÄÃ. gÀÆ.UÀ¼À°è=14,800”
The plaintiff has cross examined DW.1, wherein DW1 has stated as under:
“¸ÀÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß ¤ªÀiÁðt ªÀiÁqÀĪÁUÀ gÉqïDPÉì Êqï £É® DVvÀÄÛ JAzÀgÉ ¸Àj. FUÀ £É®ªÀ£ÀÄß «n¥æÉ Êqï mÉʯïì¤AzÀ PÀÆrzÉ. ¸ÀzÀj mÉʯïìUÀ¼À£ÀÄß ªÁådåzÀ £ÀAvæÀ ºÁPÀ¯ÁVzÉ JAzÀgÉ ¸Àj”.
The trial Court has also observed as under:
Ex.P1 is the Assessment Register Extract, which goes to show that the building is a RCC footed and cement flooring and the area of the schedule premise is 600 square feet. In Ex.D1 document valuation of the properties per square meters are shown. Hence, the value shown in Sl.No.4 just below Ex.D2 as `13,800/- is properly applicable to value the suit building. Then the area of the schedule property is to be converted into square meter from square feet. In such being the case, it comes to `55.7418 square meters. When it multiplied with `13,800/- then it comes to `7,69,236.84. Further, the suit land is measuring 4 cents. When it converts to square meter it comes to 161.88 square meter. The Government value of the land per square meter is `10,100/-. Therefore, the value of the suit land is `16,34,988/-. In total the suit property value is `24,04,224.84. The plaintiff has claiming 1/5th share. When the total amount is divided by 5, it comes to `4,80,844.97. Thus, the present suit is comes to the pecuniary jurisdiction of this Court. Therefore, this Court opines that the valuation made by the plaintiff for the reliefs claimed in the suit and the court fee paid is correct.
11. Learned counsel for the petitioner contended that it is the suit for declaration. Therefore, Court fee has to be paid under Section 24(a) of the Act but it cannot be accepted for the simple reason that a plain reading of the prayer sought for in the suit is to declare the release deed dated 24.03.2012 said to have been executed by the 1st defendant as null and void and for permanent injunction and grant 1/5th share to the plaintiff in the schedule property. The assertion made in the plaint and denied in the written statements with regard to the manipulation and addition in the GPA executed by the plaintiff and denial thereon can be decided only after full fledged trial between the parties. Therefore, the trial Court was justified in passing the impugned order.
12. The judgment relied upon by the learned counsel for the petitioner in the case of Muniyamma cited supra was the case for declaration and consequential relief and also for delivery of possession of the suit schedule property and consequential relief of permanent injunction. In such circumstances, this Court was of the opinion that the plaintiff has to pay the Court fee on the relief sought for. The said case has no application to the facts and circumstances of the present case.
13. Insofar as the other case i.e. M/s.Gurjar Power Engineer Pvt. Ltd., is concerned, it was filed praying to declare the letter as null and void. Injunction against dispossession also sought and it relates to immovable property and the Court fee payable on half of the market value of property. The said case is also not applicable to the facts and circumstances of the present case.
14. While drafting the plaint, the counsel for the plaintiff has drafted only to declare the release deed and it is only drafting mistake of the counsel. Because of the mistake committed by the counsel, party should not suffer. The Court fee paid by the plaintiff is just and proper.
15. In the identical circumstances, the Hon’ble Supreme Court in the case of Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and Others reported in (2010) 12 SCC 112 has considered at para Nos.5 to 10 as under:
5. The Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab (‘the Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides :
"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought:
Provided that minimum court-fee in each shall be thirteen rupees.
Provided further that in suits coming under sub-clause (c), in cases where the relief sought 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 this section."
6. The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub - clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub clause (e) thereof.
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 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 "coparcenery" 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.
10. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments.
16. In view of the aforesaid reasons, the impugned order dated 19.02.2019 passed on Preliminary Issue No.5 by the trial Court is just and proper. The petitioner has not made out any ground to interfere with the impugned order. Hence, the petition is dismissed.
Sd/-
JUDGE BS