Shri. Ganpat Alias Ganpati Laxman ... vs Smt. Kasturibai Shankar Devne And ...
2021 Latest Caselaw 12096 Bom

                                                                               J-WPST-8924-21.doc



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            Digitally
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            signed by

                                            CIVIL APPELLATE JURISDICTION
            RAJSHREE
RAJSHREE    KISHOR
KISHOR      MORE
MORE        Date:
            2021.08.30


                                       CIVIL WRIT PETITION (S) NO.8924 OF 2021
            14:18:18
            +0530




                         Shri Ganpat @ Ganpati Laxman Devne       ]
                         Age : 61 years, Occ. Agriculturist,      ]
                         R/o 1319/1, "A" Ward, Shalini Palace,    ]    ..       Petitioner
                         Mirabag, Kolhapur.                       ]         (Org. Plaintiff)
                                      vs.
                         1.    Smt.Kasturibai Shankar Devne,      ]
                         2.    Shri Satish Shankar Devne,         ]
                         3.    Shri Ravindranath Shankar Devne, ]
                         4.    Sou. Geeta Parshuram Godgori,      ]
                         5.    Sou. Sunita Raju Kallimani,        ]
                         6.    Shri Vijay Ramchandra Hullennawar, ]
                         7.    Shri Nitin Ramchandra Hullennawar, ]
                         8.    Smt.Hirabai Irrappa Bhosale,       ]
                         9.    Sou. Chandubai sahadev Ghatge,     ]
                         10.   Shri Amit Ramappa Hadimani,        ]
                         11.   Karnataka Bank Ltd.                ]
                         12.   Shree Vyankateshwara Construction ]
                               Through its Proprietor             ]    ..Respondents
                               Shri Balraj Digambar Jadhav        ]   (Org. Defendants)


                         Mr.Manoj Patil, for Petitioner.
                         Mr.Drupad Patil, for Respondents.




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                                                         J-WPST-8924-21.doc



                   CORAM                 :   N.R.BORKAR, J.

                   RESERVED ON   :           20.08.2021
                   PRONOUNCED ON :           30.08.2021

JUDGMENT :

1] Rule. Heard finally with the consent of learned counsel for the parties.

2] This petition takes an exception to the order dated 2 nd March, 2021, passed by the 5th Joint Civil Judge Senior Division, Kolhapur, below Exhibit 75 in Special Civil Suit No.25 of 2016.

3] The Petitioner herein has filed suit for partition and separate possession of his one fifth share in suit property bearing Gat No.1319, admeasuring 10 R within the limits of Municipal Corporation, Kolhapur.

4] According to the Petitioner, respondent Nos.1 to 5 during the pendency of suit, to deprive him of his share in the suit property executed sale deed dated 18th September, 2019, of the entire suit property in favour of Respondent No.12. The Petitioner amended the plaint and sought the declaration that the sale deed executed by respondent Nos.1 to 5 in favour of respondent No.12 is illegal, void and is not binding on his share in the said property.

5] Respondent No.12 moved an application at Exhibit 75, under Order vii Rule 11 of the Civil Procedure Code. The Respondent No.12 has stated that he purchased the suit property for an amount of Rs.80,10,000/- and since the Petitioner has sought declaration that the sale deed is illegal and void, the Petitioner is required to pay court fee

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on the said amount. It is stated that the Petitioner be directed to pay the court fee on the said valuation and in case of default, the plaint be rejected.

6] The trial Court after hearing the parties allowed the application by the order impugned. According to the trial Court, as the Petitioner has sought the declaration that the sale deed is illegal and void, Section 6(iv)(ha) of Bombay Court Fees Act (Fort short "the Court Fees Act) would apply and not the Section 6(iv)(j). The trial court, accordingly directed the Petitioner to pay the court fee as per section 6(iv)(ha).

7] I have heard the learned counsel for the Petitioner and learned counsel for the respondents. Learned counsel for the Petitioner submits that admittedly, the Petitioner is not the executant of the sale deed dated 18th September, 2019. It is submitted that the prayer of the Petitioner in respect of the sale deed in effect is that, it is not binding on the share of the petitioner. It is submitted that the trial Court was, therefore, not justified in holding that Section 6(iv)(ha) would apply and not Section 6(iv)(j).

8] In support of the submission, learned counsel for the Petitioner has relied upon following judgments :

i] 2010(12) SCC 112 Suhrid singh @ Sardul Singh vs. Randhir Singh & Ors.

ii] Judgment of this Court reported in 2017(5) Mh.L.J. 388 Common Piru Caudhari v/s. Berubai Chendu Redhiwale & Ors.

iii] Unreported Judgment of this Court in Writ Petition No.2057 of 2013 dated 29.08.2013 in the case of Shyamrao s/o Pandurang Sambare vs. Civil Judge, Senior Division, Nagpur & Ors.

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iv] Civil Revision Application No.339 of 2016 in the case of Ravindra Narayan Rajarshi & Ors. vs. Smt. Rohini Ganpatrao Heblikar & Anr. alongwith connected matters.

9] On the other hand, learned counsel for respondents submits that the Petitioner in addition to declaration that the sale deed is not binding on him, has sought the declaration that the sale deed is illegal and void. It is submitted that considering the nature of declaration sought by the Petitioner, the trial Court was justified in holding that Section 6(iv)(ha) would apply and not 6(iv)(j). In support of the submission, learned counsel for respondent has relied upon following judgments :

i] 2015(2) Mh.L.J. 472 Prism Reality, Pune vs. Govind Yashwant Khalade & Ors.

ii] 2011(1) Mh.L.J. 898 Chandrika Chunilal Shah vs. Orbit Finances Pvt. Ltd. & Ors.

10] Section 6(iv)(ha) which is relevant for the purpose of deciding the

issue in the present matter, reads thus:

"Section 6(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 movable or immovable property is void [one-half] of ad valorem fee leviable on the value of the property;

11] This Court while examining the similar issue in the case of Common Piru Caudhari vs. Berubai Chendu Redhiwale & Others has observed, "Obviously, clause (ha) of Section 6 (iv) of the Act applies only when the suit seeks declaration that any sale or contract for sale or termination of contract for sale of any

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moveable or immoveable property is void and as such, it would have no application to declarations sought in this case which do not seek any sale or contract for sale or termination of contract for sale of any immovable or movable property to be void. One must understand that there is a sea difference between a declaration that any sale or contract for sale is null and void and the declaration that the sale or contract for sale has no binding effect. In the former case, the very existence of the sale transaction or contract for sale is sought to be razed whereas in the latter case, such existence is not sought to be denied but its effect is only sought to be not applicable to the person seeking declaration. This would mean that when the declaration that a sale or contract for sale insofar its effect is concerned, does not affect in any manner the claimant or is not binding upon the claimant, its existence is not sought to be denied and it may still be binding upon all others but the claimant. It would then follow that the declarations as sought by the applicant in this case were such as were not covered by clause (ha) of Section 6 (iv) of the Act and that would be covered by some different clause.

12] Similar view was taken by this court in the case of Shamrao s/o Pandurang Sambare vs. Civil Judge, Senior Division, Nagpur & Ors. This Court held :

"4. It is not in dispute that the petitioner/plaintiff is not party to the sale-deed dated 07-1-2002 executed by the defendant No.1 in favour of the defendant No.2. The claim of the plaintiff is that the property is an ancestral property in which the plaintiff has share to the extent of 0.46 Hectares of land. It is alleged that the sale-deed executed by the defendant No.1 in favour of the defendant No.2 is, therefore, without his knowledge and authority and hence, it is not binding upon him and also the sale-deed dated 20-1-2005 said to have been executed by the defendant No.2 in favour of the defendant Nos.3 and 4.

5. In view of this position the trial Court has apparently committed an error in holding that the suit was required to be classified under Section 6(iv)(ha) of the Bombay Court Fees Act."

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13] According to the learned counsel for respondents, the Judgments in the case of Common Piru Chaudhari (supra) and Shamrao (supra) would not apply to the facts of the present case as in the said cases the declaration that the sale deed is illegal and void was not sought.

14] Considering the facts and circumstances of the case in my view, the prayer of the Petitioner in sum and substance is that the sale deed dated 18th September, 2019 is not binding on his share in the suit property. Apart from it, admittedly the sale deed came to be executed during the pendency of suit. Section 52 of the Transfer of Property Act stipulates that, suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property can not be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. This Court in the case of Yeshwanta vs. Mahdeo reported in 2011 (1) Mh.L.J. 569 has held :

" Thus this discussion shows that in a title suit valued appropriately initially, the challenge to lis pendense transfer is not essential. The party who indulges in such prohibited act can not thereby require the aggrieved party to alter otherwise valid valuation already made and pay more court fees due to such acts."

.. The order impugned, therefore, cannot be allowed to stand.

15] The Judgments relied upon on behalf of the respondents in the case of Prism Reality, Pune and in the case of Chandrika Shah would not apply to the facts of the present case as in both the cases prayers were for avoidance of a sale. In the result, following order is passed :

J-WPST-8924-21.doc

ORDER i] Writ Petition is allowed.

ii]    The impugned order is set aside.
Iii]   Application at Exhibit 75 is rejected.



                           [N.R.BORKAR, J]