Karnataka High Court

A M Satyanarayana vs R Jayashree Devi on 7 December, 2021

Bench: K.S.Mudagal

                                       W.P.No.50863/2018

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 07TH DAY OF DECEMBER 2021

                        BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

       WRIT PETITION No. 50863/2018 (GM-CPC)

BETWEEN:

1.    A.M.SATYANARAYANA
      S/O LATE A.E.MADHAVAN NAIDU,
      AGED ABOUT 82 YEARS,
      R/AT 'F' BLOCK 300,9TH MAIN,
      SAHAKARA NAGAR, BENGALURU-560092

2.    SURESHA KUMAR A.S
      S/O A.M.SATYANARAYANA,
      AGED ABOUT 50 YEARS,
      R/AT 'F' BLOCK 300,9TH MAIN,
      SAHAKARA NAGAR, BENGALURU-560092

3.    A.S.UMA MAHESHWARI
      W/O SHOBAN,
      D/O A.M.SATYANARAYANA,
      AGED ABOUT 48 YEARS,
      R/AT S-111, SILVER PALM APARTMENTS,
      NO.340, BAJANAI KOIL STREET, OFFICERS,
      COLONY,
      ANNA NAGAR WEST EXTENSION,
      CHENNAI-600 003

4.    VEENA SURESH NAIDU
      W/O SURESH NAIDU,
      D/O A.M.SATYANARAYANA,
      AGED ABOUT 47 YEARS,
      R/AT NO.6, 22ND STREET, NEHRU COLONY,
      NAGANNALURU, CHENNAI-600 003

5.    A.S.MAHESH KUMAR
      S/O A.M.SATYANARAYANA,
      AGED ABOUT 45 YEARS,
                                       W.P.No.50863/2018

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       R/AT PLOT NO.183-B
       HOUSE NO.7A, 10TH STREET
       KRISHNA NAGAR,
       MADURA VOYAN,
       CHENNAI-600 003                ... PETITIONERS

(BY SRI.P.K.SHRIKARA, ADV. FOR
    SRI.GANAPATHI HEGDE, ADV)

AND:

1.     R.JAYASHREE DEVI
       W/O R.RAMESH BABU,
       AGED ABOUT 67 YEARS,
       R/AT FLAT NO.001, NO.11
       "ORCHID" APARTMENTS,
       ST JOHNS ROAD, CANTONMENT,
        BENGALURU-560 042

2.     M/S SURBACON DEVELOPMENT PRIVATE LIMITED
       HAVING ITS OFFICE AT
       NO.1/1, ULSOOR ROAD,
       BENGALURU-560 042

       ALSO AT
       22/1/2/3 OSBORNE ROAD,
       BENGALURU-560 042

       REPRESENTED BY ITS DIRECTOR
       MRS.UMA RAVI KUMAR

3.     BALAKRISHNA KURUP
       S/O P.G.KURUP,
       AGED ABOUT 66 YEARS

4.     SHAILA B KURUP
       W/O BALAKRISHNA KURUP
       AGED ABOUT 57 YEARS

       BOTH AT FLAT NO.101,
       NO.11, "ORCHID" APARTMENTS,
       ST JOHNS ROAD, CANTONMENT
       BENGALURU-560 042
                                        W.P.No.50863/2018

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5.    P.VIJAYAN
      S/O MADHAV MENON
      AGED ABOUT 57 YEARS,
      R/AT FLAT NO.102,
      NO.11, "ORCHID" APARTMENTS
      ST JOHNS ROAD, CANTONMENT,
      BENGALURU-560 042

6.    PRASAD BHALCHANDRA BANDEKAR
      S/O BALACHANDRA PANDURANG BANDEKAR,
      AGED ABOUT 41 YEARS,

7.    DR.SHILPA PRASAD BANDEKAR
      W/O PRASAD BHALCHANDRA BANDEKAR

      BOTH R/AT FLAT NO.201,
      NO.11,"ORCHID" APARTMENTS,
      ST JOHNS ROAD, CANTONMENT
      BENGALURU-560 042

8.    V.PARAMESHWARAN
      S/O LATE N.A.VAIDYNATHAN IYER,
      AGED ABOUT 94 YEARS,

9.    LALITHA VAIDYANATHAN
      W/O P.VAIDYANATHAN,
      AGED ABOUT 59 YEARS,

      BOTH R/AT FLAT NO.202,
      NO.11, "ORCHID" APARTMENT
      ST JOHNS ROAD, CANTONMENT
      BENGALURU-560 042

10.   RAVINDRANATH
      PARTNER
      M/S LAVANYA THEATRE
      R/AT NO.8, LANGFORD ROAD,
      BENGALURU-560 025.                 ...RESPONDENTS

(BY SRI.G.L.VISHWANATH, ADV., FOR C/R1, R2, R4, R6;
    R3 & R4 ARE SERVED;
    NOTICE TO R3, R5, R7 TO R10 D/W V/O/DT: 20.09.2021)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE
                                            W.P.No.50863/2018

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IMPUGNED ORDER AT ANNEXURE-A DATED 08.03.2017 AND
ANNEXURE-B    DATED   10.09.2018  ON   I.A.NO.5  AND
PRELIMINARY ISSUE OF COURT FEES, BOTH PASSED IN OS
NO.25030/2018 ON THE FILE OF THE XXVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU.

      THIS WRIT PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

"Whether the trial Court acted arbitrarily in treating

issue No.9 regarding payment of Court Fee as preliminary

issue and answering that as per order Annexure-A against

the petitioners" is the question involved in this case.

2. Petitioner No.1 and respondent No.1 are the

son and daughter of one Sri A.E.Madhavaram Naidu,

petitioner Nos.2 to 5 are the children of the petitioner

No.1. Respondent Nos.5 to 10 are alienees of the suit

schedule item No.1 property.

3. Petitioner No.1 filed OS No.13/1962 against his

father and respondent No.1 seeking partition and separate

possession of his share in the present suit schedule

property and some other properties. In that suit on

10.01.1964 parties filed compromise petition. The Court W.P.No.50863/2018

accepted the said compromise petition, recorded the same

and drew the compromise decree accordingly.

4. As per the said compromise petition and the

decree, petitioner No.1 agreed to receive a sum of

Rs.75,000/- in lieu of his share in the subject matter of

item No.1 property in that suit and any other joint family

property. In para No.4 of the compromise petition he

further agreed for receiving Rs.75,000/-. He gave up all

his claim and interest against the suit schedule property

or any other joint family property.

5. Petitioner No.1 filed Execution Petition

No.09/1966 for recovery of said decreetal amount. Father

of petitioner No.1 sold some of the properties which are

subject matter of OS No. 13/1962 to pool the funds to

pay the decreetal amount. Petitioner No.1 was signatory

to those sale deeds. The decree in OS No.13/1962 was

fully satisfied and same was recorded in the Execution

Proceedings.

W.P.No.50863/2018

6. Sri A.E.Madhavaram Naidu father of petitioner

No.1 died on 20.11.1992. Respondent No.1 entered into

joint development agreement with respondent No.2. By

virtue of said joint development agreement, respondent

No.2 developed the property and sold the same to

respondent Nos.3 to 6 under the registered sale deeds

dated 03.06.1999, 12.07.2001 and 14.02.2003.

7. The petitioners filed OS No.25030/2008 before

XXVI Additional City Civil & Sessions Judge, Bengaluru

against the respondents for partition and separate

possession of their 2/9th share in the suit schedule

property and mense profit and to set-aside the sale deed

dated 03.06.1999, 12.07.2001 and 14.02.2003. The

subject matter of O.S.No.25030/2008 and O.S.No.13/1962

are one and the same.

8. Initially in the plaint there was no foundation

for petitioners' legal right. The petitioners have not stated

how they succeed to the property. However they

introduced para No.12(a) and 12(b) in the plaint by way of

amendment to claim that on the death of his father, by W.P.No.50863/2018

virtue of Section 8 of the Hindu Succession Act, 1956,

petitioner No.1 succeeds to his property and gets ½ share.

Even in claiming so also there was no clarity. It was said

that father got 1/3rd share, petitioner No.1 gets ½ share in

1/3rd share of the father in all the properties. If that was

the case then petitioner Nos.2 to 5 would not have claimed

any share in the property during the life time of petitioner

No.1.

9. The respondents filed written statement

denying the right of the petitioners for share. They claimed

that by virtue of the compromise petition in OS

No.13/1962 petitioner No.1 has relinquished all his right

in all the suit schedule properties. Therefore he cannot

claim any share and they also claimed that petitioner No.1

was excluded from the possession of the property long

back. Therefore they claimed the valuation of the suit is

improper and Court fee paid is inadequate. They also

contended that suit is barred by time.

10. The petitioners filed an application to amend

the plaint claiming joint possession of the properties. The W.P.No.50863/2018

trial Court by order dated 01.04.2015 rejected the

application on the ground that the petitioners are trying to

introduce new case which prejudices the defence of the

respondents. He challenged that order before this Court in

W.P No.27749/2015 (GM-CPC). This Court by order dated

09.07.2015 dismissed the said writ petition.

11. In the course of that order in para No.6 this

Court observed that alienation has already taken place on

03.06.1999, 12.07.2001 and 14.02.2003 and the

petitioners have not sought specific prayer to set aside the

sale deeds. It was further observed that if the petitioners

seek a prayer that the alienation would not bind their

share, the respondents would insist the Court to give a

finding on the exact Court Fee to be paid and the Court

can pass a suitable order with regard to the Court Fee

payable.

12. The trial Court framed issue No.9 as to

whether Court Fee paid by the petitioners is proper and

correct. Respondent No.1 had filed IA No.5 for treating

issue No.9 as a preliminary issue. That was contested by W.P.No.50863/2018

the petitioners. The trial Court by order Annexure-A dated

08.03.2017 allowed the said application and treated issue

No.9 as preliminary issue for hearing. Then the trial Court

recorded the evidence of petitioner No.1 on the said issue.

Though the respondents did not lead evidence, during the

course of cross-examination of PW.1 they got marked

compromise petition, compromise decree in OS

No.13/1962 and the proceedings in Execution Petition

No.9/1966 as Exs.D1 to D5.

13. The trial Court on hearing both side by the

impugned order Annexure-B dated 10.09.2018 held that

as the petitioners are not in joint possession, the suit

ought to have been valued under Section 35(1) of

Karnataka Court Fees and Suits Valuation Act, 1958 ('the

Act' for short) and the petitioners are liable to pay Court

fee on the actual market value of the properties.

14. The trial Court further held that the petitioners

ought to have valued the suit for a sum of Rs.10.00 Crores

in respect of share of each of the petitioners in the suit

schedule properties and shall pay the deficit Court fee.

W.P.No.50863/2018

Needless to say that the petitioners initially valued the suit

under Section 35(2) of the Act and paid Court fee of

Rs.200/- on the share of each of the petitioners. The

petitioners have challenged the aforesaid Annexures-A and

B in the above petition.

15. Sri P.K.Shrikara, learned Counsel for the

petitioners relying on the judgment of this Court in

Venkatesh R Desai V/s Smt. Pushpa Hosmani and

others1 submits that except the case of jurisdiction, the

issue of Court fee need not be treated as a preliminary

issue. Relying on the judgment of the Hon'ble Supreme

Court Sri Ratnavaramaraja vs Smt. Vimla2, he submits

that the issue of Court fee shall not be used as a weapon

to disentitle a party to pursue his rights. He submits that

issue of Court fee should have been decided at the final

stage of proceedings. He further submits that on the death

of his father, petitioner No.1 is in the deemed joint or

constructive possession of estate of his father.

ILR 2018 KAR 5095

AIR 1961 SC 1299 W.P.No.50863/2018

16. Per contra Sri G.L.Vishwanath, learned Counsel

for contesting respondents submits that the question of

valuing under Section 35(2) of the Act arises only when

the petitioners are in joint possession of the property.

Absolutely there was no pleading with regard to joint

possession in the plaint. He further submits that PW.1 in

his cross-examination unequivocally admitted about the

alienation and possession of the alienees in the suit

properties, therefore there is clear admission of exclusion

from joint possession. Therefore it cannot be said that the

trial Court acted arbitrarily in holding issue No.9 against

the petitioners.

17. So for as Annexure-A learned counsel for

respondent No.1 submits that the petitioners without

challenging that order led their evidence. In support of his

contention he relies on the judgment of this Court in

G.Baramappa V/s Kenchappa and others3.

18. So for as the challenge to Annexure-A i.e.,

order on IA No.5 to consider issue No.9 as a preliminary

In 2003(4) Kar.L.J-289 W.P.No.50863/2018

issue, the said order was passed on 08.03.2017. The

petitioners did not challenge that order, instead of that

they led the evidence on issue No.9. Thereby they

submitted themselves to the jurisdiction of the Court and

waived their right to challenge the order.

19. In seeking remedy of writ, conduct of the

parties and delay and latches on their part shall be

considered. By leading evidence on preliminary issue the

petitioners accepted the order on IA No.5. They did not

question that till the Court passed the order on issue No.9.

Therefore the challenge to Annexure-A shall fail on the

ground of delay and latches and waiver.

20. The judgment in Venkatesh R Desai's case

referred to supra, was rendered by a Larger Bench. In that

judgment it was held that by virtue of Section 11(2) of

Court Fee and Suits Valuation Act when an issue of

valuation and court fees is raised on the objections of the

defendants, the same invariably requires to be tried as a

preliminary issue. It was held that issue relating to the W.P.No.50863/2018

territorial jurisdiction of the Court shall be tried as

preliminary issue.

21. The reading of the said judgment shows that

discretionary power of the Court to consider the Court fee

issue as preliminary issue is not totally taken away by the

said judgment. Therefore said judgment in no way

advances the case of the petitioners.

22. Admittedly, petitioner No.1 had relinquished

his rights in all the properties which were subject matter of

OS No.13/1962 by receiving Rs.75,000/-. That goes to

show that he was excluded from the possession of those

properties. The very same properties are the subject

matter of the present suit. It is basic rules of pleading and

proof that the plaintiff has to plead and then prove his

case. In the entire plaint there was no whisper about the

petitioners' joint possession of the properties along with

respondent No.1. When they realized that mistake, they

tried to improve the pleadings by way of amendment.

They failed in that attempt before the trial Court as well as

before this Court. Therefore there is absolutely no pleading W.P.No.50863/2018

with regard to joint possession. Despite that they valued

the suit under Section 35(1) of the Act, whereas the

respondents claimed that suit is covered under section

35(1) of the Act.

23. Section 35(1) of Act reads as follows:

"35. Partition suits.-(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share".

24. Learned Counsel for the petitioners contends

that mere denial of the petitioners' title by the respondents

does not call for valuation of the suit under Section 35(1)

of the Act and payment of Court fee on the market value

of the property. Section 35(1) of the Act not only covers

the case of denial of title, also the case of exclusion of the

plaintiff from the possession of the property.

25. As already pointed out, the proceedings in

O.S.No.13/1962 showed that petitioner No.1 was excluded W.P.No.50863/2018

from possession of the property and relinquishment of his

right in the said properties. There was no whisper in the

plaint about the petitioners' joint possession.