HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 2795 of 2015 Appellant :- Ashok Kumar Singh Respondent :- Smt. Meera Rathore @ Sitanshu & 6 Others Counsel for Appellant :- Ajay Kumar Srivastava Counsel for Respondent :- Bharat Singh Hon'ble Krishna Murari,J.
Hon'ble Raghvendra Kumar,J.
(Delivered by Raghvendra Kumar, J.)
1. Heard Sri Ram Krishna Kohli holding brief of Sri Ajay Kumar Srivastava for the appellant and Sri Vikash Rana holding brief of Sri Bharat Singh for Caveator- respondent no. 7.
2. Under assail in the present First Appeal From Order is the order dated 9.9.2015 passed by Civil Judge ( Senior Division), District Budaun in Original Suit No. 240 of 2014 (Ashok Kumar Singh Vs.Meera Rathore and others) whereby Issue No.3 relating to payment of Court Fees has been decided against the plaintiff and he has been directed to comply with the order and pay the Court Fees as per Section 7 (IV-A) of the Court Fees Act.
3. The brief facts of the plaint are as follows:
The plaintiff has claimed himself to be the owner in possession of a double storied Kothi, the description of which is contained in paragraph 1 of the plaint which has been assigned the nomenclature of the property in dispute in further part of the plaint. The disputed Kothi belonged to late Mohan Singh who executed a registered will deed dated 22.8.1997 in favour of the plaintiff alleged to be first and the last will with respect to Kothi in dispute. The plaintiff has given the details of successor of deceased Hira Singh in paragraph No.3 of the plaint. Mohan Singh died on 14.12.2003 whereupon registered will deed dated 22.8.1997 came into operation. The plaintiff is owner in possession of the Kothi in dispute and his name has been mutated as owner in Nagar Palika Parishad, Budaun. The deceased Mohan Singh had executed will deed dated 22.8.1997 with respect to agricultural land Khasra No. 82, area 9.347 Hect., Khasra land No. 104 area 0.417 Hect., Khasra land No.278 area 0.202 Hect., Khasra land No.305 Minjumla (part) area 0.190 Hect., Khasra land No. 306 area 0.810 Hect., Khasra land No. 345 area 0.278 Hect. and Khasra land No.80/371 area 0.051 Hect. whereby the half of the said landed property came to the share of the plaintiff and half went to the share of his nephew Virendra Pal Singh which is first and last will with respect to landed property situate Gram Gurai, hamlet Pargana Ujahni, Tehsil and District Budaun. Virendra Pal Singh died on 8.8.2000, during the life time of Mohan Singh who died on 14.12.2003. As such the name of the plaintiff was mutated in revenue record in place of deceased Mohan Singh. Mohan Singh during his life time on 8.3.2003 executed an unregistered will deed of landed property bearing Khasra No. 116 area 0.202 Hect.and land Khasra No. 205 area 0.316 Hect. situate at Gram Badarpur, Pargana Ujahni, Tehsil and district Budaun, which is comprised of a grove yard, one building which is alleged to be the first and last will whereby after death of Mohan Singh the property referred to above was mutated in the name of plaintiff in revenue record. The wife of Mohan Singh died on 6.1.2000 during his life time without having any issue. Mohan Singh, vide registered adoption deed dated 27.4.2000, adopted defendant no. 1, daughter of the plaintiff named as Sitanshu whereafter the name of defendant No. 1 was changed as Meera Rathore in place of Sitanshu. The defendant no.1 developed relation with a muslim youth named as Abrar Kamal and solemnized marriage with him. The plaintiff came to know all above referred will deed through one of the witness Sri Mahendra Pratap Singh whereafter his name was mutated in the records. Defendant No. 1 showing herself to be the owner of the disputed Kothi executed a sale deed in favour of defendant nos. 2 to 7 for which she has no legal authority. The boundaries and description of the property has wrongly been alleged in the sale deed. No consideration amount passed in favour of the defendant no. 1 since sale deed was never given effect to hence defendant no.1 had no right to transfer the possession of the property in dispute in favour of defendant nos. 2 to 7. The sale deed dated 9.6.2014 has been assailed on the ground mentioned in paragraph 18 of the plaint. The defendant nos. 2 to 7 in collusion with defendant no.1 tried to take the possession of the property in dispute ( Kothi) by virtue of sale deed dated 9.6.2014 which could not be materialized due to intervention of mohalla people. The plaintiff asked the defendants to get sale deed cancelled since defendants did not agree, hence cause of action accrued in favour of the plaintiff. After obtaining the copy of sale deed the plaintiff came to know about real facts. The defendants finally refused on 10.6.2014 to get document cancelled. The valuation of the suit has made on the basis of the market value of the property for Rs. One Crore and the Court Fee has been paid by the plaintiff in terms of Art. 17(iii) of Schedule -II of the Court Fees Act on the relief of declaration prayed that registered sale deed dated 6.9.2014 be declared as void and ineffective.
4. The suit has been contested on behalf of the defendants whereupon issue no. 3 relating to valuation of the suit and the payment of the Court Fees was framed.
5. On behalf of the appellant, the validity of the impugned judgment and order has been challenged on the inter alias grounds that the Court below has not rightly appreciated the averments ( pleading) contained in the plaint. The plaintiff is owner in possession of the property in dispute and has rightly paid the court fee in terms of Article 17 (iii) of Schedule II of the Court Fees Act. The impugned judgment and order has been passed in violation of the Article 17(iii) of Schedule II of the Court Fees Act and, thus, is illegal and without jurisdiction.
6. Learned counsel for the appellant has placed reliance upon the law laid down by this Court in Smt. Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC, 1000 (DB) = AIR 1992 All 254 and further placed reliance in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 Law Suit (SC) 104.
7. Refuting to the submission of learned counsel for the appellant, it has been submitted on behalf of defendant-respondents that in view of the pleadings and the relief clause the Court-fee in the instant case is required to be paid in accordance with Section 7 (IV-A) of the Court Fees Act, as amended by U.P.Amendment Act. It has further been submitted that in the relief clause it has been prayed that consequent upon the declaration in favour of the plaintiff a direction be issued to Sub Registrar for making necessary entries in the record.
8. The short question involved herein is whether in a suit for declaration of sale deed dated 9.6.2014 as void and ineffective would fall under Section 7 (IV-A) of Court Fees Act as amended by U.P. Amendment or Art. 17 (iii) of Schedule-II of the Court Fees Act would be attracted.
9. The trial court has taken a view that plaintiff-appellant should have paid the court-fee as per Section 7(IV-A) of the Court Fees Act. Hence this appeal.
10. From the perusal of the relevant clause it is evident that plaintiff has prayed for declaration of sale deed dated 9.6.204 as void and ineffective and has further clubbed a prayer to issue a direction to the Sub Registrar for making the necessary entries in the record consequent upon declaration in his favour. These reliefs have been clubbed together whereas it could have safely been segregated and the subsequent part relating to direction is consequential to the relief of declaration.
11. Learned counsel for the appellant has placed reliance upon the proposition of law laid down by Co-ordinate Bench of this Court in Smt. Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC, 1000 (DB) = AIR 1992 All 254. The relevant paragraphs are being reproduced herein below :
19. Before dealing with this aspect, it is necessary to reproduce the relevant provisions of S.7(iv-A) for brevity of the case:
"In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, according to the value of the subject-matter of the suit and such value shall be deemed to be....."
20. No doubt the aforesaid provision is emphatic dealing with the point in issue. However, words used therein "other document securing money or other property having such value" require interpretation so as to find out pith and substance to this provision, that is what is the intention of legislature in putting the word "securing". This word "securing" is not only related to the money part of the decree but other property as well as used in this provision, and therefore word "securing" relates to recovery or possession of the other property, otherwise putting this word "securing" in this provision becomes meaningless. As such where money part or any other property is claimed by way of securing it, the plaintiff is certainly required to pay ad valorem Court-fee i.e. 1/5th of the value of subject-matter of the property. But where no relief is claimed in terms of the above referred provision, then certainly payment of Court-fee shall be governed under Art. 17, Schedule II of the Court-fees Act.
21. In the instance case no relief is claimed in terms of the above referred provision by the plaitniff, but simply a declaration is sought that the alleged sale deed be declared null and void.
22. The payment of Court-fee depends upon the averments of the plaint and the relief claimed and not on the averments of the written statement. A suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a declaration that the alleged sale deed be declared null and void, does not fall within the ambit of Section 7(iv-A) (State of U.P. Amendment). See State of U.P. v. Ramkrishan Burman, AIR 1971 SC 87 : (1971 All LJ 1), wherein considering this State of U.P. Amendment their Lordships of the Apex Court ruled that in a suit for mere declaration that the plaintiff is owner of certain properties, this U.P. Amendment is not attracted for the purposes of payment of Court-fee. According to their Lordships this U.P. Amendment relates to a decree for recovery of money or other property. It however, does not include a decree concerning title to money or other property, and, hence where mere declaration is involved, the payment of Court-fee is governed under Art. 17, Schedule II of the Court-fees Act. In view of the decision in Ramkrishan Burman's case (supra), we are of the opinion that the plaintiff has paid proper Court-fee.
12. He has further placed reliance upon the guidelines issued by Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 Law Suit (SC) 104. Admittedly the law laid down by the Hon'ble Apex Court in Suhrid Singh @ Sardool Singh ( supra) is in relation to the Court Fees Act as applicable in the State of Punjab and Haryana for the simple reason that the above proposition appears to be of no avail in this case and more so the U.P. Amendment Act of Court Fees Act 1870 was not considered.
13. In view of the observations made by Coordinate bench of this Court in Smt. Shefali Roy Vs. Hero Jaswant Dass and others (Supra), it has been vehemently contended that the case of the appellant is squarely covered by the law propounded by the Court. As such, the appellant has rightly valued the suit and has paid correct amount of court fee payable as per Art. 17 (iii) of the Court Fees Act 1870, as amended by U.P.Amendment Act.
14. The position has now been crystallized that the matter relating to valuation of suit and payment of Court-fee solely rests upon the pleadings and the relief claimed in a particular suit.
15. The similar controversy has been considered by Hon'ble Apex Court. The principle regarding payment of Court-fee has been dealt by Hon'ble Apex Court in case of Shailendra Bhardwaj and others vs. Chandra Pal and another (2013) 1 Supreme Court Cases 579. The relevant paragraphs dealing with the controversy is being reproduced herein below :
"8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
9.The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so.
10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case."
11. Plaintiff, in the instant case, valued the suit at Rs.30 Lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs.200/- under Article 17(iii) of Schedule II of the Court Fees Act. Plaintiff had not noticed the fact that the above mentioned article stood amended by the State, by adding the words "not otherwise provided by this Act". Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable.
16. From the perusal of proposition of law laid down in Shailendra Bhardwaj Vs. Chandra Pal (Supra), it can safely be deciphered that Court fee in declaratory suit with no consequential relief is to be paid in accordance with law under Article 17(iii) of Schedule-II of the Court Fees Act of 1870 where there is no provision elsewhere in the Act for such suits. It clearly indicates that the provisions of Article 17 (iii) of the Schedule-II of Court Fees Act is residuary in nature and is attracted only in respect of category of cases not otherwise provided in the Act. The amending provisions of Court Fees Act has been well appreciated by Hon'ble Apex Court and it categorically lays down payment of Court fee in the cases where suit is for or involving cancellation or adjudging/declaring null and void,decree for money or instrument under Article 17 (iii) of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case despite the fact that no consequential relief has been claimed. The law laid down by the coordinate Bench of this Court in Smt.Shefali Roy Vs. Hero Jaswant Dass (supra) would not be attracted in view of Shailendra Bhardwaj case (supra).
17. In view of the categorical guidelines of the Apex Court propounded in the case referred to above, the learned Court below has rightly directed the plaintiff-appellant to pay the Court fee in terms of Article 7(IV-A) of Court Fee Act 1870 as amended by U.P. Amendment Act.
18. In view of the reasons stated above, we are of the opinion that learned court below has rightly recorded the finding in respect to valuation of suit and for payment of court fee in accordance with Section 7(IV-A) of Court Fees Act, 1870 and has not committed any error of law.
19. We are of the considered view that no interference is required in the findings returned by the court below.
20. The appeal is bereft of merits and is, accordingly, dismissed.
Order Date : 16.11.2015 Su