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2010 Supreme(Cal) 1331
High Court of Judicature at Calcutta
SYAMAL KANTI CHAKRABARTI
Ajit Kumar Shil
Versus
Subrata Narayan Chowdhury & Others
C.O. No. 956 of 2009
Decided On : 19-11-2010
For the Petitioner:P. B. Sahu, Murari Mohan Das, Advocates.
For the Respondents:Hiranmoy Bhattacharyya, Tanmoy Mukherjee, Advocates.
In a suit for declaration that a deed is void, the plaintiff is not liable to pay ad valorem court fees on the valuation of the deed.
Headnote:
COURT FEES - VALUATION - SUIT FOR DECLARATION THAT DEED IS VOID - AD VALOREM COURT FEES NOT PAYABLE - WEST BENGAL COURT FEES ACT, 1970, SECTION 7(IV)(C).
Fact of the Case:
The plaintiff filed a suit for declaration that three deeds were void and not binding on him, without seeking their cancellation or recovery of possession of the suit property. The trial court, on its own accord, ordered the plaintiff to pay ad valorem court fees on the valuation of the impugned deeds.
Finding of the Court:
The court held that the plaintiff was not liable to pay ad valorem court fees on the valuation of the impugned deeds as the suit was only for a declaration that the deeds were void and not for their cancellation or recovery of possession.
Issues: Whether the plaintiff was liable to pay ad valorem court fees on the valuation of the impugned deeds in a suit for declaration that the deeds were void.
Ratio Decidendi: The court relied on the principles laid down in Kapil Charan Nayak v. Gitanjali & Ors., AIR 1951 Calcutta 509, Sm. Gita Debi Bajoria v. Harish Chandra Saw Mill & Ors., AIR 1971 Calcutta 202, Naba Kumar Das v. Damodar Das, 1992(II) CHN 482, and Sri Kartick Mondal & Ors. v. Sri Biman Sen & Ors., 2008(2) CLJ (Cal), to hold that in a suit for declaration that a deed is void, the plaintiff is not liable to pay ad valorem court fees on the valuation of the deed.
Final Decision: The court set aside the trial court's orders directing the plaintiff to pay ad valorem court fees and directed the trial court to proceed with the case in accordance with law.
Syamal Kanti Chakrabarti, J
1. In the instant application under Article 227 of the Constitution of India order no 29 dated 18.03.2008 and order no. 39 dated 12.02.2009 passed by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas in T. S. No. 12 of 2005 have been assailed.
2. The plaintiff petitioner contends that he filed the Title Suit No. 12 of 2005 against the defendant respondents with the following averment which is only relevant for my adjudication:
(a) That one Amiruddi Halder @ Amiruddin Halder was the owner of the property measuring an area of 0.13 decimals of land in C. S. Khatian No. 67, R. S. Khatian No. 265, C. S. Dag No. 447 of Mouja Teghori, J L No. 52, Ward No. 7 holding No. 1967, L R Dag No. 479 P. S. Sonarpur, District South 24-Parganas within Rajpur-Sonarpur Municipality;
(b) That the said Amiruddin Halder died on 17.8.1960 leaving behind his widow Hayatan Bibi and one daughter Anefa Bibi as his legal heirs and representatives who have inherited the said property. The said widow Hayatan Bibi died on 17.9.1999 and after her death the only daughter Anefa Bibi became the absolute owner of the said property in question. The said Anifa Bibi all along possessed and held the said land as the exclusive legal heir and successor of her deceased father Amiruddin Halder and deceased mother Hayatan Bibi. The said Anefa Bibi all along used to pay the relevant rent and taxes in respect of the said property although the name of her father still remains in the record of rights; etc. The prayer of the plaintiff/ petitioner in the said T. S. No. 12 of 2005 was as follows:
“(a) That the plaintiff is the owner of the suit property;
(b) For a declaration that the defendant Nos. 1, 2, 6 and 7 as well as 8 have no legal right interest or title in respect of the schedule property and the impugned forged deed being No. 1-3109 dated 17.4.1961 as if executed by Amiruddin Halder who died on 17.08.1960 in favour of defendant No. 3 to 5’s firm has no force or hold any legality over the suit land the said Deeds to be declared as void deed, and the subsequent deed as deed (a) being No. 3800 dated 4.10.2001 in favour of defendant No. 6 and 7; (b) the deed of gift dated 19.11.2001 in favour of defendant no. 8’s office being no. 3383 made on the said forged deed dated 1-3109 are not binding upon the plaintiff’s purchased property i.e. the suit property.
(c) A decree for permanent injunction restraining the defendants and their men and agents from changing the nature and character of the suit property and from carrying any construction or boundary fence in any part of the schedule property until and unless the validity of the illegal forged deed is tried by the Court of law.
(d) All costs of unit.
(e) For such other relief and reliefs the plaintiff is entitled to under law and equity. ”
3. While admitting the said plaint on 25.01.2005 the Learned Court below was pleased to hold that court fees paid is sufficient, requisites put in and so directed to issue summons upon the defendants through Court as well as by registered post with acknowledgement due. Thereafter due notice was served upon all the defendants and while considering an application for further hearing of temporary injunction petition the Learned Trial Court on his own accord passed order no. 22 dated 17.04.2007 in the following terms:
“At this stage on perusal of the plaint it appears to me that this is a suit for declaration of a deed as void and for permanent injunction. It reveals that the instant suit is being filed valued at Rs. 100/- and court fees paid accordingly. However, I think for determination of proper court fees and valuation of the suit a hearing is necessary. Accordingly, temporary injunction petition hearing is adjourned today. Fix 28.5.07 for hearing in respect of valuation & court fees.”
4. On 03.12.2007 the plaintiff filed a verified petition stating that no further court fees is required in this case which was fixe
