Shri Abdulsattar Gulabbhai ... vs R/At : Prarthana
2011 Latest Caselaw 152 Bom

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    lgc
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION




                                                                                    
                               WRIT PETITION NO.401 OF 2011




                                                            
          Shri Abdulsattar Gulabbhai Bagwan                ]
          Age : 73 years, Occ : Agri. & Business           ]... Petitioner
          R/at : 145, Budhwar Peth, Satara.                ] (Org.Plaintiff)




                                                           
                            versus

          1     Shri Vaibhav Lxmangiri Gosawi,         ]
                Age 45 yrs., Occ : Agriculture,        ]




                                                  
                                                       ]
          2     Shri Manilal Laxmangiri Gosawi
                                   ig                  ]
                Age 42 yrs. Occ : Agriculture          ]
                Both R/at : 338/2B, Karanje, Satara    ]
                                                       ]
                                 
          3     Shri Radheshyam Bhairulal Bhandari     ]
                Age 54 yrs, Occ : Business             ]
                R/at : Ratnaprabha, Sadarbazar, Satara ]
                                                       ]
                

          4     Shri Prabhakar Devaba Gharge           ]
                Age : 49 yrs. Occ : Business           ]
             



                R/at : Prarthana, Sadarbazar, Satara   ]
                                                       ]
          5     Shri Sunil Laxminarayan Zanwar         ].... Respondents
                Age : 39 yrs. Occ : Business,          ]    (Org.Defendants)





                R/at : Sadarbazar, Satara              ]


          Mr.Madhav Jamdar for the Petitioner.
          Mr.M M Sathaye for the Respondent Nos.1 to 5.





                                        CORAM : R M SAVANT, J.
                                        Reserved on : 9th November 2011
                                        Pronounced on : 01st December 2011

          JUDGMENT :

1 Rule, with the consent of the parties made returnable forthwith and heard.

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    2                     The writ jurisdiction of this Court under Article 227 of the 

Constitution of India is invoked against the Order dated 17/09/2010 passed by

the learned 6th Joint Civil Judge, Junior Division, Satara on the Application-

Exhibit-40 filed by the Respondents herein in Regular Civil Suit No.19 of 2009

filed by the Petitioner.

3 The facts to be cited for adjudication of the above Petition are

stated thus :-

The Petitioner is the original Plaintiff and the Respondents herein

are the original Defendants. The subject matter of the said suit is Gat No.850

bearing Old No.831 situated at Mauje Degaon, Taluka and District Satara

which land totally admeasuring 5 Hectares 74 Are. The said suit as original

filed was for a declaration that the sale deed dated 31/10/2008 was got

executed from the Plaintiff by playing fraud on him. It was the case of the

Plaintiff in the said suit that he along with the parents of the Defendants i.e.

Laxmangiri Ramgiri Gosawi and Kusum Laxmangiri Gosawi collectively

purchased the suit property by two registered sale deeds dated 2/8/1994 from

one Smt.Sarubai Bapurao Ghadge and Jijabai Sakharam Ghadge. It was further

his case that each of the said purchasers had 5 Anna and 4 Paisa share in the

suit property. It is further the case of the Petitioner that the said Laxmangiri

Ramgiri Gosawi died in August 2008. The present Defendants who are the

sons of the said Laxmangiri and Kusum Gosawi approached the Petitioner some

time in August 2008 and stated to him that for the development of the

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property it is necessary that the property be sub-divided according to the share

of respective parties. It is further the case of the Petitioner that the Defendants

further stated that since the Petitioner has difficulty on account of his advance

age, partition deed would be kept ready and that as and when they called him,

he should come only for affixing his signature before the Sub-Registrar.

According to the Plaintiff, the Defendant Nos.1 and 2 called the Plaintiff on

31.10.2008 at 5.45 pm in the office of the Sub-Registrar and on the pretext

that office is going to be closed soon within few minutes took his signature in

the late evening at about 6.20 pm on the purported partition deeds. It is the

case of the Plaintiff that he came to know that the said documents are in fact

two separate sale deeds respectively of his 1/2 share each executed in favour of

the Respondent Nos.1 and 2 respectively and the consideration of each alleged

sale deed is shown as Rs.32,500/- . It is in the said circumstances that the

Petitioner was constrained to file the said Regular Civil Suit No.19 of 2009 for

a declaration that the sale deeds dated 31/10/2008 were got executed from

the Petitioner by playing fraud. The substantive relief as sought in the said suit

was for a declaration that the sale deeds dated 31/10/2008 are not binding

upon the Petitioner as they are illegal without consideration and are therefore

not binding upon the Petitioner.

4 The Plaintiff after the filing of the suit came to known that the

Defendant Nos.1 and 2 have executed sale deed dated 15/12/2008 in favour of

the Respondent Nos.3, 4 and 5 herein by which the land admeasuring 3

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Hectares 82.66 Are out of the said land was sold by them to the Respondent

Nos.3 and 4 for consideration of Rs.Twenty Four lacs. The Plaintiff thereafter

applied for amendment and amended the plaint by adding consequential

prayer that the sale deed dated 15/12/2008 executed by the Defendant Nos.1

and 2 in favour of the Defendant Nos.3 to 5 is not binding on the Plaintiff and

for impleadment of the Respondent Nos. 3 to 5 herein. The said application

was accordingly allowed, and resultantly the Respondent Nos.3 to 5 were

impleaded as the Defendants in the said suit and prayer clause A(1) came to be

added for a declaration that the so called sale deed executed by the

Respondent Nos.1 and 2 in favour of the Respondent Nos.3 to 5 herein dated

15/12/2008 is not at all binding on the Plaintiff.

5 After the suit was amended, the Respondent Nos.3 to 5 herein

filed the Application-Exhibit-40 in the said suit seeking a relief that the

Petitioner be asked to pay stamp duty on the amount of Rs.Twenty Five lacs

which was the consideration in the said sale deed dated 15/12/2008.

6 By the impugned order dated 17/09/2010 the said Application-

Exhibit-40 was allowed, and the Plaintiff was asked that he should get the suit

property valued and pay half of ad-valorem court fees on Rs.Twenty Four lacs.

    7              Heard learned counsel for the parties.





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    8              The learned counsel for the Petitioner Shri Jamdar submitted that 

there is no requirement to value the suit as per Section 6(iv)(ha) of the

Bombay Court Fees Act, 1959 as the main substantive relief sought is by way of

prayer clause (A) to the effect that a declaration is sought that the sale deed

dated 31/10/2008 has been got executed from the Plaintiff by fraud, mis-

representation and by breach of trust taking dis-advantage of the old age and

illness of the Plaintiff and without consideration, and for a declaration that the

said so called sale deed is illegal and suffers from fraud is ab-initio illegal and

not binding on the Plaintiff. The learned counsel would contend that the 2nd

prayer introduced by way of amendment is a consequential as if the 1st prayer

is granted, the said 2nd prayer has to necessarily follow. The learned counsel

would contend that the Bombay Court Fees Act is a fiscal statute and would

have to be strictly construed, and unless requisites for the application of

Section 6(iv)(ha) are available, the said provision would not apply. The

learned counsel would contend that in so far as 2nd prayer is concerned, apart

from it being a consequential prayer, the Plaintiff has also not sought that the

said sale deed executed by the Defendant Nos.1 and 2 in favour of the

Defendant Nos.3 to 5 be declared as void. The learned counsel would contend

that the Plaintiff in view of the declaratory in nature of the relief sought has

valued the said suit property, and if that be so, the said valuation given by the

Plaintiff should be accepted, and the reliance for the said purpose is placed on

the judgment of the Apex Court reported AIR 1987 SC 2085 in the matter of

Tara Devi V/s Thakur Radha Krishna Maharaj which concerned the suit for

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declaration and consequential relief, however, the Section concerned there was

Section7(iv)(c) of the Court Fees Act, 1870. The Apex Court observed that the

Plaintiff is free to make his own estimation of the reliefs sought in the plaint

and such valuation both for the purpose of Court-fee and jurisdiction has to be

ordinarily accepted. The learned counsel also sought to place reliance on the

judgment of a learned Single Judge of this Court reported in 2005(3) Bom.

C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan Kumar

Ramnath Prasad Dwivedi & ors. The said Judgment concerns with both

Sections 6(iv)(j) and 6(iv)(ha). The suit was valued on the basis of declaration

sought that the agreement executed by the defendant No.1 in favour of

defendant No.3 is void and not binding, and also for perpetual injunction. An

objection was raised as regards valuation. The trial Court held that the suit has

to be valued as per the provisions of Section 6(iv)(ha). The learned Single

Judge held that looking to the relief sought in the suit, the provisions of

Section 6(iv)(ha) have been correctly applied by the trial Court. The said

judgment has been relied upon on the ground that since in the said case, there

was a declaration sought that the said agreement was void, the learned Judge

had confirmed the finding of the trial Court that provisions of Section 6(iv)(ha)

would apply. However, in the instant case, the learned counsel for the

Petitioner would contend that the relief sought in the present suit by prayer

clause A(1). The learned counsel for the Petitioner would contend that

accepting the said case of the Plaintiff that fiscal statute has to be construed

strictly, considering that the suit filed for avoidance of agreement or

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declaration that the agreements are void, the Court fees would have to be paid

as per Section 6(iv)(ha). In the instant case, considering the prayer clause

A(1), the Plaintiff would be liable for payment of court fees as per the said

provisions.

The learned counsel for the Respondent also placed reliance on

the same judgment of a learned Single Judge of this Court reported in 2005(3)

Bom. C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan

Kumar Ramnath Prasad Dwivedi & ors. , wherein, according to the learned

counsel for the Respondent, declaration and consequential relief as in the

present case was sought, and in the context of the said relief sought, this Court

had held that Section 6(iv)(ha) was rightly invoked by the trial Court.

9 Having heard the learned counsel for the parties, I have given my

anxious consideration to the rival contentions of the parties. At the out set it

would be gainful to reproduce prayer clauses A and A(1).

Prayer clause A:- It be declared that the sale deeds created by Defendant Nos.1 and 2 dated 31/10/2008 in respect of the property mentioned in Para 1 of the Plaint have been created by fraud, mis-representation and breach of trust taking dis-advantage of the old age and illness of the Plaint and without consideration. It be declared that the so called sale deeds bearing Document Nos.5626/2008 and 5625/2008 are illegal, created by fraud and are abi-nitio illegal, are not binding on the Plaintiff.

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Prayer clause A(1) :- It be declared that the so called sale deed dated 15/12/2008 executed by the Defendant Nos.1 and 2 in favour of Defendant Nos.3 to 5 bearing

No.6476/2008 is not at all binding on the Plaintiff.

10 The said prayer clause A(1) has its basis in the averments made in

the plaint in Para 4 wherein it has been stated by the Plaintiff that the said suit

has been filed for a declaration that the so called sale deed executed by the

Defendant Nos.1 and 2 in favour of the Defendant Nos.3 to 5 by accepting

huge consideration is not binding on the Plaintiff.

11 It would also apposite to reproduce the relevant statutory

provisions of Section 6(iv)(ha) and Section 6(iv)(j) reproduced thus :-

"(ha) for avoidance of sale, contract for sale, etc.

In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any moveable or immoveable property is void one half of ad-valorem fee

leviable on the value of the property"

(j) for other declarations

In suits where declaration is sought, with or without

injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee payable, as if the amount or value of the subject matter was one thousand rupees.

In all suits under clauses (a) to (j) the Plaintiff shall state the amount at which the values the relief sought, with the reasons for the valuation."

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As can be seen, Section 6(iv)(ha) reveals that in suits for

declaration that any sale, or contract for sale or termination of contract for

sale, of any moveable or immoveable property is void and stipulates the court

fees payable under the said provision.

Section 6(iv)(j) covers the suits where declaration is sought, with

or without injunction or other consequential relief and the subject matter in

dispute is not susceptible of monetary evaluation and which are not otherwise

provided for by the said Act.

12 Therefore in so far as prayer clause A is concerned, there can be

no dispute as regards valuation, as the Plaintiff has sought a declaration that it

be declared that the sale deeds dated 31/10/2008, which the Defendant Nos.1

and 2 got executed from the Plaintiff has been got so executed by playing fraud

on him, mis-representing him, and by breach of trust. The learned counsel for

the Respondent/Defendant also fairly concedes that there can be no dispute as

regards valuation in so far as prayer clause A is concerned. The difficulty

arises in view of the dispute in so far as valuation of prayer clause A(1) which

has been introduced in the plaint by way of amendment on account of sale

deed dated 15/12/2008 executed by the Defendant Nos.1 and 2 in favour of

the Defendant Nos. 3 to 5. By the said prayer the Plaintiff has sought a

declaration that the said so called sale deed is not binding upon the Plaintiff. It

is the submission of the learned counsel for the Petitioner/Plaintiff that the said

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relief is only a consequential relief to prayer clause A, and if prayer clause A is

granted, then automatically the said relief as contains in prayer clause A(1)

would have to be granted.

13 In the context of the relief sought by way of prayer clause A(1),

the background facts would have to be noted. It is the case of the Plaintiff that

the Defendant Nos.1 and 2 taking dis-advantage of the old age of the plaintiff

and the fact that the Plaintiff was not in a position to look after the property,

got the sale deeds executed from him by mis-representing him that in fact the

partition deeds are being executed as that was what told to the Plaintiff by the

Defendant Nos.1 and 2 earlier. It is, therefore, the case of the Plaintiff that

since by the sale deeds executed by the Defendant Nos.1 and 2 in favour of the

Defendant Nos. 3 to 5 covers the share of the Plaintiff in the common property.

If the prayer clause A is granted, necessary corollary of the same would be

granted by prayer clause A(1), and therefore, the said prayer clause A(1) being

consequential relief, the suit need not be valued under Section 6(iv)(ha) of the

Act. At the first blush the said submission seems worthy of acceptance,

however, on deeper scrutiny in the context of the added prayer clause A(1) it

cannot be accepted. It is required to be noted that even if the suit is allowed in

respect of share of the Plaintiff in the suit property and if the sale deeds dated

31/10/2008 are set aside, nevertheless the subsequent sale deed dated

15/12/2008 would still be required to be set aside, and therefore what the

Plaintiff in fact is seeking by prayer clause A(1) is in effect the setting aside of

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the said sale deed dated 15/12/2008. The Plaintiff would therefore have to

value the suit in terms of prayer clause A(1) also and in so far as the said

prayer A(1) is concerned, Section 6(iv)(ha) would be attracted.

14 In the context of the dispute as regards the court fees

payable, it would be relevant to refer to the Judgment of a learned Single

Judge of this Court reported in 2005(3) Bom. C.R. 879 in the matter of Abdul

Gaffar Abdul Samad v/s. Niranjan Kumar Ramnath Prasad Dwivedi & ors.

(supra). In the said case, a dispute was as to whether Section 6(iv)(j) is

applicable or Section 6(iv)(ha) is applicable in the context of the reliefs sought

in the said suit. The suit in question in that case was filed for a declaration

that agreement executed by Defendant No.1 in favour of Defendant No.3 is

void and not binding, and for a perpetual injunction. That suit was valued as

per Section 6(iv)(j) on the ground that what was sought was only a declaration

as regards the agreement in question. An objection was taken by the

Defendants as regards improper valuation of the suit, and resultantly,

deficiency in court fees. The trial Court adjudicated upon the said objection

and held that the suit is covered by the provisions of Section 6(iv)(ha). The

said decision of the trial Court was challenged before this Court. This Court

held that the suit as filed is for avoidance of contract for sale and development

that the Defendant No.1 had entered into with the Defendant No.3, and since

the Defendant No.3 had agreed to pay consideration of Rs.2,50,000/- to

Defendant No.1 and in fact paid Rs.50,000/-, the said suit would have to be

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valued in terms of Section 6(iv)(ha). Paras 3 and 9 of the said judgment are

material and are reproduced herein under :-

"3 The suit filed by the plaintiff is for declaration

that agreement for development dated 28-3-1997 executed by defendant No.1 Niranjan in favour of defendant No.3 Ramratan (Petitioner in W.P.No. 4505/2004) is void and not binding upon him. The Plaintiff has also sought perpetual injunction

restraining them from interfering with or disturbing his possession. The plaintiff has stated that he has entered into an agreement of sale dated 7th March, 2003 for Rs. 1,30,000/- with defendant No.1. He states that he has

paid an amount of Rs.24,000/- towards part payment and was given possession on 10th July, 2002. He states

that defendant No.1 permitted him to affix a gate and accordingly after affixing gate he has also put his lock on it. He states that the sale deed was to be executed in

the month of January, 2003. He further states that an agreement of sale for Rs.1,30,000/- was executed on 7th March, 2003 and on that date he has paid entire amount of consideration to the owner and its receipt is

acknowledged by the owner. He states that thereafter some differences cropped up between him and

defendant No.1 and therefore, defendant No.1 executed some documents in favour defendant No.3 and defendant No.3 is trying to take forcible possession of the suit plot from him. It is stated by him that the

agreement for development executed by defendant No. 1 in favour of defendant No.3 is dated 20th March, 1997 and is not legally valid and also a void document. He has stated that cause of action arose on 10-3-2003 when defendant No.3 lodged false complaint against

him. The suit has been valued at Rs.1,000/- and Court Fees of Rs.200/- has been paid upon it.

9 In the light of discussion above it is apparent that the provisions of Bombay Court Fees Act is contained in section 6(iv)(ha) are correctly invoked by the learned trial Court in the facts. The said provision as amended by Amendment Act of 1996 reads as under :-

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"(ha) for avoidance of sale, contract for sale, etc.

In suits for declaration that any sale, or contract for

sale or termination of contract for sale, of any moveable or immoveable property is void (one half) of

ad-valorem fee leviable on the value of the property"

The suit of present plaintiff is for avoidance of contract for sale and development. Perusal of Clause Nos.14 and 15 of the said agreement dated 28 th March,

1997 reveal that the defendant No.1 has given to defendant No.3 prower to nominate buyers and has agreed to execute sale deed in favour of such buyer. The defendant No.1 has also agreed to execute and

registered sale deeds of proportionate undivided share and interest in the land in favour of prospective buyers

of the tenements to be nominated by part No.2 and defendant No.3 has agreed to pay consideration of Rs. 2,50,000/- to defendant No.1 and has in fact, paid Rs.

50,000/- on the date of that agreement to defendant No.1. It is this, clear that the view taken by the trial Court is illegal and no fault can be found with it."

15 The submission of the learned counsel for the Petitioner that in the

said suit what was sought was the declaration of the agreement in question as

void which relief is covered by Section 6(iv)(ha) of the said Act. However, in

the instant case, the Petitioner is not seeking any such relief in the suit but only

claiming a declaration that the sale deed dated 15/12/2008 is not binding

upon him. In my view, the same would not make any difference as what in

effect the Plaintiff is seeking by way of prayer clause A(1) is the avoidance of

the said agreement dated 15/12/2008, and therefore, Section 6(iv)(ha) would

be attracted. As observed herein above, even if prayer clause A were to be

granted to the Plaintiff, nevertheless the agreement in question in favour of the

Defendant Nos.3 to 5 would have to be set aside, and therefore, the relief

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sought by way of prayer clause A(1) would have to be valued in terms of

Section 6(iv)(ha).

16 In so far as the reliance placed by the Petitioner on the judgment

of the Apex Court reported in AIR 1987 SC 2085 in the matter of Tara Devi

V/s. Thakur Radha Krishna Maharaj wherein the Apex Court has held that in a

suit for declaration with consequential relief falling under S.7(iv)(c), the

plaintiff is free to make his own estimation of the reliefs sought in the plaint

and such valuation both for the purpose of Court-fee and jurisdiction has to be

ordinarily accepted. The ratio laid down in the said Judgment would be

applicable to a case covered by Section 6(iv)(j). However, considering the

relief sought by prayer clause A(1) in the instant matter, the said Judgment

would have no application.

17 It was sought to be contended by the learned counsel for the

Petitioner that the Defendant Nos.1 and 2 by playing a fraud and mis-

representing the Plaintiff have got the agreement executed from them, and

therefore, it would be unjust if the Plaintiff would have to pay ad-valorem

court fees on the subsequent agreement executed by the Defendant Nos.1 and

2 in favour of the Defendant Nos.3 to 5. In my view, that cannot be a

consideration for deciding as to whether the suit in question is to be valued in

terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,

as contended by the learned counsel for the Defendants, in the context of the

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reliefs sought in the suit. The Plaintiff, as can be seen in effect is seeking

avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of

the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the

said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has

been done by him.

18 The trial Court therefore has rightly by the impugned order held

that the Plaintiff would have to properly value his suit and shall pay half of the

ad valorem court fees on Rs.24,00,000/-

19 Having considered the impugned order, in my view, there is no

error or any infirmity in the said impugned order for this Court to interfere in

its writ jurisdiction. The above Writ Petition is accordingly dismissed. Rule

discharged with parties to bear the respective costs.

[R.M.SAVANT, J]

01st December 2011

At this stage, the learned counsel appearing for the Petitioners

prays for continuation of the order dated 24/02/2011 for a period of four

weeks. Prayer granted. Ad-interim order dated 24/02/2011 to continue for a

period four weeks from date.

[R.M.SAVANT, J]