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2019 Supreme(Kar) 2078
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. Veerappa, J.
Smt.Sumathi A Shetty And Ors. - Petitioners
Versus
Sri Manesha Shetty - Respondent
Writ Petition No.14735 of 2019 (GMCPC)
Decided On : 22-04-2019
Advocate Appeared:
For the Petitioner: Sri Udaya Prakash M., Adv.
Headnote:
Karnataka Court Fee and Suits Valuation Act, 1958 - Section 24(d) - Court Fees Act, 1870 - Purpose of court fee and jurisdiction - Permanent prohibitory injunction - Possession and enjoyment of their undivided rights - 1st respondent herein who is plaintiff before trial Court has filed suit for declaration permanent prohibitory injunction and partition and to declare release deed registered before Sub-Registrar City in respect of schedule property as null and void and not binding on plaintiff restraining defendants their men servants etc or anybody claiming under them from alienating mortgaging encumbering or transferring schedule property in any manner in favor of 3rd parties and for partition into five equal shares and allotment of one such share to plaintiff - It is contended in plaint that suit schedule property originally owned by father of plaintiff and defendant Nos.2 to 4 and husband of defendant No.1 - Plaintiff acquired absolute right as per sale deed registered as Doc before Sub-Registrar of City - After death schedule property was inherited by his legal heirs parties to suit and RTC was also mutated in their joint names – Held, Learned counsel for petitioner contended that it is suit for declaration – Therefore Court fee has to be paid under Section 24(a) of Act but it cannot be accepted for simple reason that a plain reading of prayer sought for in suit is to declare release deed said to have been executed by 1st defendant as null and void and for permanent injunction and grant 1/5th share to plaintiff in schedule property - Assertion made in plaint and denied in written statements with regard to manipulation and addition in GPA executed by plaintiff and denial thereon can be decided only after fully fledged trial between parties – Therefore trial Court was justified in passing impugned order - Judgment relied upon by learned counsel for petitioner in case of cited supra was case for declaration and consequential relief and also for delivery of possession of suit schedule property and consequential relief of permanent injunction - In such circumstances this Court was of opinion that plaintiff has to pay Court fee on relief sought - Said case has no application to facts and circumstances of present case - Difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance can be brought out by following illustration relating to A and B two brothers - A executes a sale deed in favor of C. Subsequently A wants to avoid sale - A has to sue for cancellation of deed - On other hand if B who is not executants of deed wants to avoid it he has to sue for a declaration that deed executed by A is invalid/void and no nest/illegal and he is not bound by it - In essence both may be suing to have deed set aside or declared as nonbinding - But form is different and court fee is also different - If A executants of deed seeks cancellation of deed he has to pay ad valorem court fee on consideration stated in sale deed - If B who is a non-executants is in possession and sues for a declaration that deed is null or void and does not bind him or his share he has to merely pay a fixed court fee under Article 17(iii) of Second Schedule of Act - But if B a non-executants is not in possession and he seeks not only a declaration that sale deed is invalid but also consequential relief of possession he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of Act - Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief court fee shall be computed according to amount at which relief sought is valued in plaint - Proviso thereto makes it clear that where suit for declaratory decree with consequential relief is with reference to any property such valuation shall not be less than value of property calculated in manner provided for by clause (v) of Section 7 - In this case there is no prayer for cancellation of sale deeds - Prayer is for a declaration that deeds do not bind coparcener and for joint possession - Plaintiff in the suit was not executants of sale deeds – Therefore court fee was computable under section 7(iv)(c) of Act - Trial court and High Court were therefore not justified in holding that effect of prayer was to seek cancellation of sale deeds or that therefore court fee had to be paid on sale consideration mentioned in sale deeds - Petition is dismissed
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 exten
