Badri Prasad And Another vs Gyan Prakash And Others
2015 Latest Caselaw 175 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											AFR										          RESERVED
 

 
Court No. - 3
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1282 of 2010
 

 
Appellant :- Badri Prasad And Another
 
Respondent :- Gyan Prakash And Others
 
Counsel for Appellant :- Vishnu Gupta,Anjani Kumar Mishra,Manoj Misra,Sudeep Kumar Singh
 
Counsel for Respondent :- Amit Saxena,S.C.
 

 
Connected with 
 

 
Case :- FIRST APPEAL No. - 279 of 2010
 

 
Appellant :- Badri Prasad
 
Respondent :- Gyan Prakash And Others
 
Counsel for Appellant :- Manoj Misra,A.K.Mishra,Sudeep Kumar Singh
 
Counsel for Respondent :- Amit Saxena
 

 
Hon'ble Krishna Murari, J.

Hon'ble Pratyush Kumar, J.

(Delivered by Hon'ble Pratyush Kumar, J.)

There are two appeals arising out of the proceedings of Original Suit No.323 of 2006 (Badri Prasad and another Vs. Gyan Prakash and others). FAFO No.1282 of 2010, filed under section 6 A of the Court Fees Act, 1870 read with section 104 C.P.C., is directed against the order dated 17th April, 2010 passed by Additional District Judge (Court No.2), Allahabad, whereby issue no.1 in respect of valuation and payment of court fees has been decided against the appellants/plaintiffs (hereinafter referred as appellants). The other i.e. First Appeal No.279 of 2010 (Badri Prasad Vs. Gyan Prakash and others), filed under section 96 of the Civil Procedure Code, is directed against the judgment and decree dated 31stMay,2010 passed by the Additional District Judge (Court No.2), Allahabad. Since both the matters are inter-connected, these appeals are decided by a common judgment.

Before noticing the arguments of the parties, we would like to have a glimpse of the facts, relevant for the present purpose, as gleaned from the pleadings of the parties.

Briefly stated the appellants-plaintiffs, filed a suit against respondent nos. 1 to 3 with prayer to declare the registered gift deed dated 26th September 2005, executed in respect of property in dispute, details whereof have been given at the foot of the plaint as null and void. The appellants and respondent nos. 1 and 3 are real brothers. Respondent No.2 is their nephew (Bhanja). Property in dispute was acquired by late Hazari Lal, father of appellants and respondent nos. 1 and 3. In his life time late Hazari Lal had constructed a residential house on the land purchased by him. In respect of the land, late Hazari Lal executed a will dated 11th May, 1989 in favour of his all four sons. After his death, all the four brothers became owner in possession of their share in the suit property. In the will it was provided that respondent No.1 would not have a right of alienation. Respondent No.1 in contravention of that condition had executed a registered gift deed dated 26th September, 2005 in favour of respondent no.2. On this account, registered gift deed was void and liable to be declared so. The suit was valued on twenty times of the house tax payable by the owners along with thirty times of the land revenue, payable on the rest of the open land, thus, the suit was valued Rs.1,08,083/-. Respondent nos. 1 and 2 filed a common written statement whereby relationship of the parties was admitted. Execution of gift deed was also admitted. Other averments of the plaint were denied. In the additional written statement filed subsequent to the amendment in the plaint, in para 6 specific ground was raised that suit was under valued and paid court fees was in-sufficient. Court fees should have been paid ad valorem.

On the basis of the pleadings of the parties, preliminary issue no.1 was framed and decided by the impugned order. According to the learned Additional District Judge, in the present suit, relief of cancellation of gift deed has been claimed. For such suit section 7 (iv-A) of the Court fees Act, 1870 (hereinafter referred as the 1870 Act) prescribes that suit should be valued on the market value of the property, in the present suit which comes to Rs.37,36,124/- and court fees should be paid accordingly, therefore, appellants were directed to amend the plaint.

Aggrieved with this order, FAFO No.1282 of 2010 (Badri Prasad and others Vs. Gyan Prakash and others) was filed on 28th April, 2010.

On 31st May, 2010, on behalf of the respondent no.2, an application was moved that in compliance with the order dated 5th January, 2010, passed in FAFO No.3770 of 2009, this suit should have been decided within four months. The time limit so prescribed had expired on 11th May, 2010. Preliminary issue was decided on 17th April, 2010 and the appellants were directed to make necessary amendments in the plaint, which they did not comply. Request was made that plaint should be rejected under Order 7 Rule-11 (b) of the C.P.C.

On behalf of the appellant no.1, objection was filed and it was stated that the appellants had preferred FAFO No.1282 of 2010 before this Court which could not be heard and hearing had been adjourned for July. After hearing the parties, the learned Additional District Judge, has observed that in FAFO filed by the appellants, proceedings of the said suit have not been stayed, in spite of several directions to remove the defects the plaintiffs failed to comply with court's order, therefore, court has no option except to reject the plaint under Order 7, Rule 11 of Civil Procedure Code, thereafter, plaint was rejected accordingly.

In the First Appeal No.279 of 2010, it has been contended on behalf of the appellants that under section 6 A (2) of the 1870 Act, if an appeal is filed against the order asking the plaintiffs to pay additional court fees, if they fail to do so, proceedings of the suit would be automatically stayed. Learned counsel for the appellants submits that in view of this statutory bar, the court below had no jurisdiction to pass the impugned order dated 31st May, 2010.

On behalf of the respondents, it has been contended that the plaint has been rejected for the reason that the appellants did not comply the order dated 17th April, 2010 which also involves disobedience of the court's order and the impugned order is legal and justified.

Applicability of section 6 A of 1870 Act added by U.P. Act No.1938 is not in dispute. FAFO No. 1282 of 2010 has been filed under this section. In view of the provisions contained in sub-section 1 and nature of the controversy, decided by the impugned order dated 17th April, 2010 we are of the opinion that the said FAFO was filed under the correct statutory provisions. The above view receives supports from the observation made by this Court in the case of Smt.Shail Agarwal Vs. State of U.P., 2007 (102) RD, 9.

Before proceeding further, we would like to extract sub-sections 1 and 2 of section 6 A of the 1870 Act, which read as under:-

"(1) Any person called upon to make good a deficiency in court-fee may appeal against such order as if it were an order appealable under Section 104 of the Code of Civil Procedure.

The party appealing shall file with the memorandum of appeal, a certified copy of the plaint together with that of the order appealed against.

(2) In case an appeal is filed under sub-section (1), and the plaintiff does not make good the deficiency, all proceedings in the suit shall be stayed and all interim orders made, including an order granting an injunction or appointing a receiver, shall be discharged."

It has been indicated earlier that FAFO No.1282 of 2010 was filed on 28th April, 2010. The effect of filing the said FAFO has been described in sub-section 2 quoted above. Resultantly, when the impugned order dated 31st May, 2010 was passed by virtue of this sub-section, proceedings of the aforementioned suit stood stayed. This legal prescription is mandatory in nature and the learned Additional District Judge when informed about the filing of appeal under section 6 A of the1870 Act, should have kept the proceedings in abeyance. He had no jurisdiction to proceed further in the suit. Therefore, the impugned order dated 31st May, 2010 is against the provision of law and it has been passed in exercise of the jurisdiction not vested in the court below, hence, liable to be set aside, in the result, first appeal succeeds.

In FAFO No.1282 of 2010, learned counsel for the appellants has contended that the plaint is correctly valued on the basis of house tax payable in respect of the residential property and on the basis of land revenue in respect of the open land. According to the learned counsel, market value of the revenue paying property is computed on the basis of revenue payable by the owner and not on the market value of the suit property which it would fetch if it is sold in open market. In support of this argument, learned counsel for the appellants has referred explanation of sub-section (iv-a) of section 7 read with sub-section (v) of the said section of the 1870 Act.

Learned counsel for the appellants has further argued that the appellants have sought only declaration in respect of the purported gift deed executed by respondent no.1. The appellants are entitled to pay fixed court fees in accordance with the provisions at serial no.(iii) of item no.17 enumerated in Schedule II of the 1870 Act. In the last, learned counsel for the appellants has referred provisions contained in sub-section (iv-A) of section 7 and stated that in the registered gift deed neither the appellants nor their predecessor-in-interest were party, therefore, they are required to pay court fees on the one fifth of the value of the suit property.

On behalf of the appellants, the following case law in support of his arguments has been referred:-

(1) Ashok Kumar Sharma Vs. Yogendra Kumar Sharma, decided on 22ndMay, 2013.- Observation of this Court in this case is that the market value of the suit property would have to be decided on the date of the institution of the suit. These observations do not help the case of the appellants because the suit property has been valued by the court below on the basis of value disclosed in the registered gift deed executed by respondent no.1 on 26th September, 2005.

(2) Lakshmi Ammal Vs. K.M.Madhavakrishnan, A.I.R. 1978, S.C.,1607. This case has been referred on the point that provisions regulating payment of court fees should be strictly construed and wherever there is reasonable doubt, benefit to the payer should be given.

Though the legal proposition stated above is undisputed, however, this case does not advance the case of the appellants for the reason in the present case there is absolutely no ambiguity in the taxing provisions relevant here.

(3) S. RM. AR.S.SP.Stahappa Chettiar Vs. S.RM. AR. RM. Ramanathan, A.I.R.1958, SC 245: (1958) SCR 1024, para-4 of the judgment has been referred on behalf of the appellants, in support of the argument that under section 7 of the 1870 Act, in sub-section (iv), plaintiff has been given liberty to value his claim for the purposes of court fees. In the State of U.P. in 1938, amendments have been made which specifically prescribes how the suit should be valued for the purpose of court fees. In view of the statutory provisions, the observation made in this case is to no avail to the appellants.

(4) Danish and others Vs. Syed Shahenshah Husain @ Syed Silas, C.Spear, decided on 22nd April, 2013. In this case, this Court has held that defendants of the suit had no legal right to challenge the decision of the trial court on court fees. Before us, it is the appellants being plaintiffs, who are challenging the validity of the impugned order dated 17th April, 2010, the ratio laid down in this case is clearly distinguishable and has no application here.

(5) A.Nawab John Vs. V.N.Subramaniyam, A.I.R. 2012 SC(Civil)2355, para 26 of this judgment has been referred to show that Court may permit payment of appropriate court fee in its discretion and if the deficit is made good every proceeding relating thereto shall be as valid as if it had been properly stamped in first instance. It bears no relevance to the present controversy.

(6) C.R. Basra Vs. Pearey Lal Basra and another, A.I.R. 1960 Allahabad, 590 (DB). In this case, this Court has held that under section 7 (v) (II) of the 1870 Act, 'market value' has not been defined. In para 19 of the judgment, this Court has discussed the various methodologies for determining the market value of the buildings situated in different geographical areas. This judgment has been rendered in a reference on two questions, which are quoted as below:-

"(1) Where there is an appeal under Section 6 A and the appellate court decides it, is its decision a case decided or not, and will a revision lie against that decision or not?

(2) In a case where deficiency is objected to by the appellant, but the court holds that there is no deficiency; has the defendant any right of revision to this Court? "

Evidently computation of market value of the suit property was not among on the controversies before the court, therefore, this case does not support the argument advanced on behalf of the appellants.

(7) Rajendra Prasad Yadav Vs. Ravindra Nath Singh and three others, decided on 20.12.2013. In this case after referring the case of Smt.Savita Agarwal Vs. 2006(100) RD 568 of Uttaranchal High Court remanded the matter for fresh determination of market value of the suit property and while setting aside the order whereby the suit property was valued on the basis of consideration mentioned in the sale deed.

The observation made in this case is also of no help to the appellants because in this case subject matter is a residential house and land appurtenant thereto. It is liable to be valued in accordance with the sub-section (v) (II) of section 7 of the 1870 Act. The relevant provision is quoted hereinafter.

(8) Rama Kant Malviya Vs. District Judge, Allahabad, 2002 (3)A.W.C. 2116 and Mitthoo Lal Vs. Gopal Chand 1979 A.I.R.(Alld), 226. These judgments have been delivered by Hon'ble Single Judges, in the first case, annual rent payable to Nagar Mahapalika has been taken to be a legal basis for determining valuation of the plaint. In the second case, similarly on the basis of annual rent, market value was fixed. In both the judgments, explanation attached to section 7(v) has been applied irrespective of the fact that the explanation only provides for valuation of the plaint on the basis of revenue of the estate which comprises land, subject to payment of revenue. In the provision quoted hereinabove, nowhere word 'estate' has been used. The views expressed by this Court in various cases lead to the conclusion that these two cases have been decided while overlooking the legal provisions without construing them strictly. Some of these cases are referred as under:-

(1) Kailash Chand Vs. Vth Additional Civil Judge Meerut 1999 (90) R.D. 100 (Alld). In this case, this Court has held in a case of declaration is sought regarding the will, as null and void provisions of section 7 (iv-A) of the Court Fees Act will be applicable.

(2) Smt.Veena Bhal Vs. Vishnu Kumar 2005 (2) R.D. 496, in this case, the similar observation has been made.

(3) Indra Mohini Vs. District Judge, R.D. 741 (Utt). In this case, the plaintiffs had filed a suit for permanent injunction on the basis of gift deed being null and void. It has been held that a document or an instrument which creates title is certainly a document securing property having money value. A suit involving cancellation or adjudication as void or voidable of such a document it certainly covered by Section 7 (iv-A) of the Court Fees Act.

(4) Shailendra Bhardwaj & Ors.Vs.Chandra Pal & Anr., 2013 (1) JCLR 541(SC). In this case, plaintiff had sought relief of declaration to the effect that will dated 21st March, 2003 and sale deed dated 12th January, 2005 were null and void and declaration be issued to this effect. The Hon'ble Apex Court in para 11 of the judgment has observed the following:-

"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(ii) of Schedule II of the Court Fees Act shall not be applicable."

Now we will leave the ratio of these cases and find out which are the provisions here to regulate the valuation of the plaint for the purpose of payment of court fees.

From the averments contained in the plaint, it is evident that though only declaratory decree has been prayed for but read as whole the plaint reveals that the true substantial and main relief in the present case amounts to adjudging the registered gift deed as null and void. Without doing so, declaratory decree sought for cannot be granted, therefore, in the present matter, section 7 sub-section (iv) would not be applicable but section (7), sub-section (iv A) would be applicable. This view is fortified by the observation of the Full Bench of this Court made in the case of Bibbi vs.Shugan Chand, A.I.R. 1968 Alld, 216 (Full Bench). Therefore, court fees has to be paid according to the value of the subject matter.

Explanation to sub-section (iv A) of section 7 prescribes a method for computing the market value of the immovable property, in respect of which relief is claimed to wit, it shall be computed in accordance with sub-sections v, v-A or v-B of Section 7, as the case may be. Here admittedly, computation of valuation is required to be made in accordance with the provisions contained in sub-section (v), which is quoted hereunder:-

"For possession of lands, building or gardens-(v) In suits for the possession of land, buildings or gardens- according to the value of the subject-matter; and such value shall be deemed to be

(1) where the subject-matter is land, and-

(a) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such an estate, and is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled-

thirty times the revenue so payable;

(b) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid and such revenue is settled by not permanently-

ten times the revenue so payable;

(c ) where the land pays no such revenue or has been partially; exempted for such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the three years immediately preceding the date of presenting the plaint-

twenty times the annual average of such net profits; but when no such net profits have arisen therefrom the market value which shall be determined by multiplying by twenty the annual average net profits of similar land for the three years immediately preceding the date of presenting the plaint;

(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clause (a), (b) or (C) above-

the market value of the land which shall be determined by multiplying by fifteen the rental value of the land, including assumed rent on proprietary cultivation, if any;

(II) Where the subject-matter is a building or garden-

according to the market-value of the building or garden, as the case may by.

Explanation- The word 'estate' as used in this sub-section, means any land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government or which, in the absence of such engagement, shall have been separately assessed with revenue. "

The above sub-section classifies the subject matter in two categories. First is the land, other is a building or garden. In the last, explanation has been appended to define word 'estate'. In reference to computation of market value of the property for valuation of building or garden, it has been simply provided that value thereof shall be deemed to be the market value of the building or garden as per the case may be. Since, in the explanation in reference to 'estate', computation of the value of the land the basis of revenue has been provided and further in reference to building or garden, the word 'estate' has not been used, therefore, the only reference can be drawn is that in this regard the value of such property will be deemed to be the market value of the building or garden as the case may be. There is no statutory provision for computation of the value of the building or garden on the basis of rent or revenue in sub-section (v) of section 7 of the 1870 Act (as applicable in U.P.).

Though in plaint, the plaintiffs have divided the property in two parts; a residential house and open land. In substance, residential house has been constructed on the land purchased by late Hazarilal, therefore, the obvious inference may be drawn that this land is land appurtenant to the residential house and according to description of the property in dispute, the whole property is surrounded by lanes and residential houses meaning thereby the property is a single unit, therefore, under sub-section (v) of the section 7 of the 1870 Act, the property has to be treated as a building and liable to be valued on the value of the property which has to be computed on the basis of its market value.

The learned Additional District Judge has assessed the market value of the property as mentioned in the gift deed executed prior to institution of the suit, therefore, we are of the opinion that the case law referred by the learned counsel for the appellants does not support the arguments advanced by him and while computing the value of the subject matter in suit, the learned Additional District Judge has committed no mistake and we see no reason to interfere in the finding recorded by him in this regard.

The other ground of attack is that the appellants are required to pay court fees on the one fifth of the market value of the suit property under clause 2 of sub-section (iv A) of section 7 of the 1870 Act. According to the learned counsel, the appellants or his predecessor-in-interest were not a party to the gift deed.

Here the question arises whether respondent no.1, who had executed the registered deed can be treated to be predecessor-in-interest of the appellants. It is not disputed that respondent no.1 was unmarried and he died during pendency of the suit. According to the plaint averments being brothers, the appellants and respondent no.3 being class 2 heirs would have succeeded the property of deceased respondent.

Here we would like to clarify that according to plaint averments, respondent no.1 was not given power to alienate the suit property but vesting of ownership right in him is not disputed. Section 104 of the Indian Succession Act, 1925 makes this explicitly clear. The said section reads as under:-

"104. Time of vesting legacy in general terms.- If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee had a vested interest in it from the day of the death of the testator, and, if he dies without having received it, it shall pass to his representatives."

Immovable property is heritable, though the respondent no.1, was not given right of alienation but his was not a life estate also. After his death the suit property would devolve on his heirs. This proposition shows that the appellants are not derving any title of the suit property from the will but as heirs to respondent no.1. Since they claiming through him, their status is of successors-in-interest.

Since whatever rights have accrued to the appellants, are on account of their being successors-in- interest of late respondent no.1 (since deceased), the law would not permit them to deny this status for the purpose of payment of court fees and claiming the benefit of its non-existence at the same time. This view is duly supported by the opinion expressed in the case of Dr. Chandra Dhar Dube Vs. Sri Ram Janki, AIR 1957, Alld, 90. Thus, in our opinion, the learned Additional District Judge was right in asking them to value the suit on the basis of the market value of the suit property i.e. Rs.37,36,124/- and asking them to pay the court fees accordingly.

In view of the discussion made hereinabove, we find no substance in the arguments put forth by the learned counsel for the appellants in support of the FAFO No.1282 of 2010. The appeal is devoid of merits. Resultantly fails, and, accordingly dismissed.

First Appeal No.279 of 2010 is allowed and the impugned judgment and decree dated 31st May, 2010, are set aside and the plaint is restored to its original number.

FAFO No.1282 of 2010 (Badri Prasad and another Vs. Gyan Prakash and others) is dismissed. Both the parties to the appeals will bear their costs.

Dated : April 28, 2015

SKD