Karnataka High Court
Mohandas S/O. Shankar Baikerikar vs Krishna S/O. Shankar Baikerikar on 6 June, 2024
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NC: 2024:KHC-D:7516
WP No. 104945 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 104945 OF 2023 (GM-CPC)
BETWEEN:
MOHANDAS S/O. SHANKAR BAIKERIKAR,
AGE: 72 YEARS, OCC: RETIRED FROM SERVICE,
R/O. GHADASI, POST. HALAGA, KARWAR,
DIST: KARWAR, NOW RESIDING AT NO.58/8,
SHANKAR BUILDING, NEAR JIVESHWAR HALL,
SAMRAT NAGAR, KOLLAPUR-416003,
MAHARASTRA.
...PETITIONER
(BY SRI. S.V. YAJI, ADVOCATE)
AND:
1. KRISHNA S/O. SHANKAR BAIKERIKAR
AGE: 86 YEARS, OCC: BUSINESS,
R/O. MURALIDHAR MATH ROAD,
DIST: KARWAR,
NOW RESIDING AT BLOCK NO.33,
NEW SANTOSH NAGAR,
BIJAPUR ROAD, SHOLAPUR-413001,
Digitally signed
MAHARASHTRA.
by BHARATHI
HM
Location: HIGH
COURT OF
2. RAVI S/O. VISHNU BAIKERIKAR (U.F.M),
KARNATAKA
DHARWAD AGE: 61 YEARS, OCC: BUSINESS,
BENCH
Date:
2024.06.13
R/O. PARODIGM HIGHTS,
12:18:37
+0530 FLAT NO.110, THIRD FLOOR,
BEHIND SILK BOARD, BTM LAYOUT,
2ND STAGE, BENGALURU-68.
3. SUDHAKAR S/O. SHANKAR BAIKERIKAR,
AGE: 81 YEARS, OCC: BUSINESS,
R/O. NEAR ISHWAR TEMPLE,
KENCHA ROAD, KARWAR-581301.
4. DINKAR S/O. SHANKAR BAIKERIKAR,
AGE: 78 YEARS, OCC: BUSINESS,
R/O. MURALIDHAR MATH ROAD,
DIST: KARWAR,
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NC: 2024:KHC-D:7516
WP No. 104945 of 2023
NOW RESIDING AT BLOCK NO.13,
GURUPRASAD BUILDING,
LT. KOTNIS ROAD, BANDAR GALLI,
MAHIM, MUMBAI-400016.
5. RAMESH S/O. SHANKAR BAIKERIKAR,
AGE: 76 YEARS, OCC: BUSINESS,
R/O. BEHIND UNION HIGH SCHOOL,
MAJALI, SAWANTWAD, KARWAR-581345.
6. SMT. RAJANI D/O. SHANKAR BAIKERIKAR,
AGE: 66 YEARS, OCC: HOUSEWIFE,
R/O. C-101, AKAR ARCADE,
DADI SHET ROAD, MALAD (WEST),
MUMBAI-400064.
7. SMT. PRAVEENA W/O. SANTOSH SHET,
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O. EWS-741, 1ST CROSS,
NAVANAGAR, HUBBALLI-580020.
8. SMT. SHOBHA W/O. MAHADEV BANDIWADEKAR,
AGE: 66 YEARS, OCC: HOUSEWIFE,
R/O. 52/2, ERANDAVAN, PRABHAT ROAD,
PUNE-04.
...RESPONDENTS
(BY SRI. S.S. BETURMATH, ADV. FOR R1 & R4;
R7-SERVED; R2, R3, R5, R6 & R8 ARE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED
06/07/2023 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
KARWAR IN OS NO.27/2020 ALLOWING THE APPLICATION IN PART
AT IA NO.2 FILED UNDER ORDER 7 RULE 11(A), (B), (C) AND (D)
R/W SECTION 16 OF CODE OF CIVIL PROCEDURE AND SECTION
11(2) OF KARNATAKA COURT FEE AND SUIT VALUATION ACT OF
1958 VIDE ANNEXURE-E TO THE WRIT PETITION. AS ILLEGAL AND
UNCONSTITUTIONAL. CONSEQUENTLY, THIS HON'BLE COURT MAY
KINDLY BE PLEASE TO DISMISS THE IA NO.2 FILED BY THE
RESPONDENT NO.4 VIDE ANNEXURE-C TO THE WRIT PETITION AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:7516
WP No. 104945 of 2023
ORDER
The captioned petition is filed by the plaintiff/petitioner
being aggrieved by the order passed by the learned Judge on
an application filed in I.A No.2, Order VII Rule 11 (A), (B), (C)
and (D) R/w Section 16 of Code of Civil Procedure and Section
11(2) of Karnataka Court Fee and Suit Valuation Act of 1958
(for short, "Court fee Act, 1958").
2. Under the impugned order, the learned Judge has
called upon the plaintiff to pay the Court fee on market value of
the property in respect of the extent of land to which which
relief of declaration of ownership is claimed as required under
Section 38 of Karnataka Court fee and Suit Valuation Act, 1958.
3. Heard the learned counsel for the petitioner and
learned counsel appearing for respondents No.1 and 4.
4. The dispute relates to payment of Court fee and
therefore, prayer sought in the plaint needs to be looked into,
which is extracted as under:
PRAYER
Hence it is prayed that this Hon'ble Court may be pleased to
pass a decree infavour of Plaintiff and against the Defendants,
a) Declaring that the Plaintiff is the absolute owner of the
properties given to the share of the Plaintiff as per the
WILL dated 01.02.1984 of late Shankar Vittal Baikerikar
and
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b) By allotting full share in suit scheduled WILL property Sr.
No. 1 situated in Ghadsai village Sy No.72 hissa 2
measuring 00-07-12 assessment 0.13 and area
measuring 00-01-08 assessment 0.02 and a residential
house standing their in. And full right in Mahim Mumbai
Property as per the WILL dated 01.02 1984 of late Sri.
Shankar Vittal Baikerikar,
c) Consequently restraining the defendants their men, agents
or any body claiming under them from alienating,
transferring sale, gift, mortgage, hypothecation etc., of
the suit schedule property till the disposal of the suit,
d) And further it is prayed to put the Plaintiff in law-full
possession of the suit schedule properties by affecting a
partition in respect of their share by metes and bounds
and equitably through the process of the court by
invoking Section 54 of CPC and also by appointing a
commissioner to put the plaintiffs in possession of the
schedule properties.
AND
e) Any such other relief that this Hon'ble Court may deem fit
and proper with cost in the interest of justice and equity.
5. The dispute obviously relates to prayer; is as to
whether the petitioner is claiming title based on a Will dated
01.02.1984.
6. The short question that falls for consideration is as
to whether the petitioner can be called upon to pay Court fee in
terms of Section 38 of the Court fee Act, 1958 which deals with
the suits for cancelation of decrees.
7. The learned counsel for the respondents argued
that the petitioner has to pay Court fee as per Section 24(b) of
Court fee Act, 1958. When the subject matter of the suit is a
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Will, the proper Court fee payable is dealt by this Court in W.P
No.105537/2023 at paragraph Nos.7 to 10 which is culled out
under:
"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, 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.
RSA.No.1137/1975 Dtd: 30.10.1981
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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).
8. A bare perusal of the extract would clinch the entire
controversy and the question is as to whether plaintiff can be
called upon to pay Court fee on the actual market value of the
property insofar as relief of declaration of ownership based on
Will would not detain this Court for a long. The above culled out
paragraphs clearly indicates that the Court, while examining
this issue, has clearly held that Section 24(d) deals with
intangible rights. Declaration of title based on Will is not
capable of valuation and the same relates to intangible rights.
9. The contention of defendants that the subject
matter of the suit covered under the Will are immovable
properties is misconceived and the said contention obviously
runs contrary to the dictum laid down by this Court in the
judgment cited supra. The Section quoted by the learned Judge
is also improper. The question that arises is as to whether the
plaintiff can be called upon to pay Court fee in term of Section
2000 (3) KLJ SN 2
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24(b) or 24(d). The Section 38 of Court fee Act, 1958 has no
application to the present case on hand.
10. In the light of the law laid down by this Court which
is referred by this Court while deciding W.P No.105537/2023,
the order under challenge is not sustainable. For the
aforementioned reasons, this Court proceeds to pass the
following:
ORDER
1. Writ Petition is allowed.
2. The impugned order on I.A No.2 dated
06.07.2023 in O.S No.27/2020 passed by the
Principal Senior Civil Judge, Karwar filed under
Order VII Rule 11 (A), (B), (C), and (D) R/w
Section 16 of Code of Civil Procedure and
Section 11(2) of Karnataka Court Fee and Suit
Valuation Act of 1958 are hereby set aside.
3. The plaintiff shall furnish a valuation as
relating to relief of declaration based on Will in
terms of Section 24 (d).
Sd/-
JUDGE
PMP
