Bombay High Court
Smt. Neeta Pramod Kamble And Ors vs Shri. Baburao Omanna Bhosale And ... on 7 September, 2021
Bench: N. R. Borkar
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Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
RAJSHREE
RAJSHREE KISHOR
KISHOR
MORE
MORE
Date:
2021.09.24
CIVIL APPELLATE JURISDICTION
18:10:43
+0530 WRIT PETITION NO.9959 OF 2019
Smt.Neeta Pramod Kamble & Ors. ] .. Petitioners
vs.
Shri Baburao Omanna Bhosale & Ors. ] .. Respondents
Mr.Manoj Patil, for Petitioners.
Mr.Yogesh Birajdar i/b Anand Patil, for Respondent Nos.5 and 6.
Mr.Drupad Patil, for Respondent No.7.
CORAM : N.R.BORKAR, J.
DATED : 7TH SEPTEMBER 2021.
P.C.:
1] Rule. Heard finally with the consent of learned counsel for the
parties.
2] This petition takes an exception to the order dated 11 th January, 2019,
passed by the Joint Civil Judge, Junior Division, Pethvadgaon, below
Exhibit 24 in Regular Civil Suit No.177 of 2018.
3] The Petitioners herein have filed suit for declaration, partition and
separate possession.
4] A declaration is sought that the sale-deed executed by the
respondent Nos.1 and 2 in favour of the respondent Nos.5 and 6 is not
binding on the share of the Petitioners.
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5] Respondent No.7-Bank filed an application at Exhibit 24 under Order
7 Rule 11(d) of the Civil Procedure Code and sought rejection of the Plaint
on the ground that the Suit is not properly valued. It is stated that the
Petitioners be directed to value the suit property and pay the Court fee on
the said valuation or else 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 Petitioners have sought
the declaration that the sale deed is void-ab-initio and the same is not
binding on them, Section 6(iv)(ha) of Bombay Court Fees Act (For short "the
Court Fees Act) would apply and not Section 6(iv)(j). The trial court,
accordingly directed the Petitioners to value the Suit and pay the court fee
as per Section 6(iv)(ha).
7] I have heard the learned counsel for the Petitioners and learned
counsel for the respondents. Learned counsel for the Petitioners submits
that admittedly, the Petitioners are not the executants of the sale deed
dated 29th September, 2016. It is submitted that the prayer of the Petitioners
in respect of the sale deed is that, it is not binding on the share of the
petitioners. 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.
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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.
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
Petitioners in addition to declaration that the sale deed is not binding on
them, have sought the declaration that the sale deed is void-ab-initio. It is
submitted that considering the nature of declaration sought by the
Petitioners, 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 respondents 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;
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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 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.
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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."
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 void-ab-initio was not sought.
14] Considering the facts and circumstances of the case in my view, the
prayer of the Petitioners in sum and substance is that the sale deed dated
29th September, 2016 is not binding on their share. The order impugned,
therefore, is unsustainable.
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 :
ORDER
i] Writ Petition is allowed.
ii] The impugned order is set aside.
iii] Application at Exhibit 24 is rejected.
[N.R.BORKAR,J]
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