Karnataka High Court
Sri. Dyamanna Adopted Son Thamannappa ... vs Sri Basappa S/O Gurulingappa Gaddi on 18 December, 2023
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105537 OF 2023 (GM-CPC)
BETWEEN:
SRI. DYAMANNA ADOPTED SON
THAMANNAPPA YELLIGUTTI
ORIGINAL FATHER GURULINGAPPA GADDI
AGED ABOUT 52 YEARS
OCC: AGRICULTURE
R/O ROLLI PRESENTLY RESIDING AT MANNIKERI
TQ: BILAGI, DIST: BAGALAKOTE
...PETITIONER
(BY SMT.VIDYAVATI.M.KOTTURSHETTAR, ADVOCATE)
AND:
SRI BASAPPA S/O GURULINGAPPA GADDI
AGED ABOUT 49 YEARS
OCC: AGRIL
R/O DHAVALESHWAR
Digitally signed
by
MOHANKUMAR
TQ BILAGI, DIST BAGALKOTE
MOHANKUMAR B SHELAR
B SHELAR
Date:
2023.12.27
11:19:38 +0530
...RESPONDENT
(BY SRI.MRUTYUNJAYA.S.HALLIKERI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A) CALL FOR THE
RECORDS OF O.S. NO. 178/2020 PASSED BY I ADDL. SENIOR
CIVIL JUDGE AND JMFC, BAGALAKOTE AS PER ANNEXURE AND
B) ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING
THE ORDER DATED. 14.08.2023 ON I.A NO. III IN O.S. NO.
178/2020 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND
JMFC, BAGALKOTE AS PER ANNEXURE-J AND FURTHER ISSUE
A DIRECTION TO ALLOW THE I.A. NO. III FILE BY THE
PETITIONER/PLAINTIFF.
2
THIS PETITION HAVING HEARD AND RESERVED FOR
ORDERS ON 12.10.2023 COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed by the plaintiff
assailing the order passed on an application filed under
Order XIV Rule 5 read with Section 151 of CPC requesting
the Court to frame an issue as to whether the counter
claim set up by the defendant seeking relief of declaration
which is valued under Section 24(d) of the Karnataka
Court Fees and Suits Valuation Act, 1958 (for short 'the
Act') is correct and proper one.
2. The said application is rejected by the Court of
first instance by recording a finding that relief of
declaration claimed by the defendant by way of counter
claim on the basis of Will is properly valued under Section
24(d) and therefore, no issue would arise for
consideration. The said order is under challenge.
3. Learned counsel appearing for the petitioner
placing reliance on the judgment rendered by the
coordinate Bench in W.P.No.3180/2014 has questioned the
correctness of the order under challenge by contending
that since defendant has sought relief of declaration, the
prayer made in the counter claim would fall within the
ambit of Section 24(b) of the Act. Reiterating the grounds
urged in the petition, she would point out that the
properties covered under the Will are immovable
properties and since relief of declaration is based on Will,
court fee has to be paid under Section 24(b) of the Act
and not under Section 24(d). She would vehemently
argue and contend that clause (b) of Section 24 makes it
manifestly clear that court fee payable in respect of relief
of declaration by which neither possession of the property
nor any consequential relief of injunction with respect
thereto is sought, the court fee still has to be determined
under Section 24(b) and therefore, she would contend that
learned Judge erred in rejecting the application.
4. Per contra, learned counsel appearing for the
respondent supporting the reasons assigned by the
learned Judge would contend that the subject matter of
the counter claim is a Will and therefore, he would
vociferously argue and contend that the subject matter of
counter claim is in regard to validity of the Will and not the
properties covered under Will. Therefore, he would
contend that the subject matter does not fall under
Section 24(b) but would fall under Section 24(d) and
therefore, it was not necessary to furnish the market value
of the immovable property as required by proviso to
Section 50 of the Act. Therefore, he would contend that
the Court has rightly examined the relief sought in the
counter claim and has applied correct law while rejecting
the application.
5. To buttress his arguments, he has placed
reliance on the following judgments:
1) K.Nagaraj vs. Sri. Muniswamy - W.P.No.3351/2019;
2) V.S.Balasubramanyam and Another vs. L.K. Trust and
Others - ILR 2009 Kar 4276;
3) Master K.P.Ponnappa & Another vs. K.P. Poovaiah &
Another - ILR 2000 Kar 3382;
4) Jaware Gowda & Another vs. Basavaraju N.J. and
Others - 2015(5) Kar.L.J. 71.
6. Heard learned counsel appearing for the
petitioner and learned counsel appearing for the
respondent. I have given my anxious consideration to the
judgments cited by both the counsels.
7. The position about suits for declaratory decree
has been much simplified by the Act. Section 24 of the
Act makes no distinction between a case where
consequential relief is claimed and a case where no
consequential relief is claimed except where the
consequential relief is with reference to immovable
property. Secondly, clause (d) of Section 24 does away
with a distinction between a case where the subject matter
of the suit is capable of valuation and a case where the
subject matter is not capable of valuation. Section 24(d)
of the Act covers all cases of declarations with or without
consequential relief not covered by sub-clause (a), (b) and
(c) and whether the subject matter is or is not capable of
valuation. Where a suit falls under clause (d) of Section
24, discussion on the question whether relief is capable of
valuation is irrelevant.
8. While examining the relief of declaration what
needs to be looked into is that market value does not
become decisive of suit valuation merely because an
immovable property incidentally has a nexus to the
subject matter of suit and is remotely connected to the
litigation. What the Courts are required to examine is to
whether valuation of any particular suit has to be decided
primarily with reference to reliefs claimed. Where the
subject matter of the suit involves an immovable property,
clauses (a) and (b) of Section 24 are attracted. While
clauses (a) and (b) of Section 24 deal with tangible rights,
clause (d) deals with intangible rights.
9. The coordinate Bench of this Court in an
identical case has given a quietus to the said controversy.
This Court in the case of Basalingappa Ningappa and
Others vs. Deputy Commissioner, Dharwar and
Another1, while examining the issue relating to valuation
of relief of declaration to declare acquisition proceedings
as null and void held that the relief sought by the plaintiff
is with reference to notification for acquisition. Therefore,
RSA.No.1137/1975 Dtd: 30.10.1981
coordinate Bench found that the subject matter of the suit
is validity of acquisition proceedings and has no nexus to
the properties covered under the acquisition proceedings
and therefore, held that the suit does not fall under
Section 24(b) but falls under Section 24(d). The
coordinate Bench further held that proviso to Section
50(1) is not attracted and there need not be two
valuations, one for the purpose of Court fee and another
for the purpose of jurisdiction.
10. A similar view was also taken by the coordinate
Bench of this Court in the reported judgment in the case of
Smt. Dhondubai vs. Fakirappa Hanamantappa Medar
by LRs. and Another2. In the said case, the suit was
filed questioning the order of the Assistant Commissioner
and a declaration was sought that the said order is null
and void. This Court held that Section 24(d) applies and
not Section 24(a).
11. In the light of the law declared by this Court in
the above cited judgments, let me examine the relief
2000 (3) KLJ SN 2
sought in the counter claim. The defendant has set up a
counter claim and has sought relief of declaration to
declare that deceased Hanamavva has executed her last
Will on 30.12.2003. On reading prayer (b) in the counter
claim, it is clearly evident that defendant is seeking relief
of declaration based on Will dated 30.12.2003. Therefore,
the subject matter of counter claim is validity or otherwise
of the Will and not the properties covered under the Will.
If the counter claim relates to the dispute in regard to
genuineness of Will, this Court is more than satisfied that
the subject matter of the suit is not capable of valuation.
The Will which is the subject matter of the counter claim
cannot be subjected to any valuation and therefore, the
suit for declaration based on Will being in respect of
intangible right would obviously fall under clause (d) and
not under clauses (a) or (b). The judgment cited by the
learned counsel for the petitioner has no application to the
present case on hand. The Court of first instance while
examining the objections raised by the plaintiff has rightly
negatived the said prayer and therefore, this Court would
find that trial Court was justified in rejecting the
application. The reasons assigned by the learned Judge
while rejecting the application is found to be in consonance
with the principles laid down by this Court in the above
cited judgment. Therefore, I do not find any illegality in
the order under challenge.
12. Accordingly, I pass the following:
ORDER
The writ petition is devoid of merits and accordingly,
stands dismissed.
The pending interlocutory application, if any, does
not survive for consideration and stands disposed of.
Sd/-
JUDGE
CA
