Karnataka High Court
Smt. Prema W/O Krishna Bhat vs Shrinivas Subray Palekar on 27 May, 2024
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NC: 2024:KHC-D:7025
WP No. 107689 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.107689 OF 2018 (GM-CPC)
BETWEEN:
1. SMT. PREMA W/O. KRISHNA BHAT,
AGED ABOUT: 66 YEARS,
OCC: HOUSEHOLD,
2. NAVEEN KRISHNA BHAT,
AGED ABOUT: 33 YEARS,
OCC: COMPUTER SERVICE,
BOTH ARE R/O: OPP: APMC GATE,
HUBBALLI ROAD, SIRSI-581342,
UTTARA KANNADA DISTRICT.
...PETITIONERS
(BY SRI.S.G. KADADAKATTI, ADVOCATE)
AND:
1. SHRINIVAS SUBRAY PALEKAR,
AGED ABOUT: 76 YEARS,
LEATHER WORKER,
2. VISHWANATH SUBRAY PALEKAR,
MOHANKUMAR
B SHELAR AGED ABOUT: 70 YEARS,
RETIRED,
Digitally signed by
MOHANKUMAR B
SHELAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH
3. RAVIDAS SUBRAY PALEKAR,
AGED ABOUT: 68 YEARS,
EMPLOYED,
ALL ARE RESIDENTS OF NEAR APMC GATE,
HUBBALLI ROAD, SIRSI-581342,
UTTARA KANNADA DISTRICT.
...RESPONDENTS
(BY SRI. R.H. ANGADI, ADV. FOR R1-R3)
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NC: 2024:KHC-D:7025
WP No. 107689 of 2018
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
ON THE FILE OF THE PRL.CIVIL JUDGE, SIRSI IN O.S.NO.253/ 2010;
QUASH THE ORDER DATED:05.09.2018 PASSED BY THE PRL.CIVIL
JUDGE,SIRSI,ON ISSUE NO.5 & 6 IN O.S.NO.253/2010 VIDE
ANNEXURE-"C" BY ALLOWING THIS WRIT PETITION, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The impugned order under challenge is squarely
covered by the judgment rendered by this Court in the
case of K.Nagaraj S/o Late A.Krishnappa Vs Sri
Muniswamy S/o Late Dodda Abbaiah @ Venkatappa
and others passed in W.P.No.3351/2019 disposed of on
11.07.2022.
2. Petitioner has filed a suit in O.S.No.253/2010
seeking the relief of declaration based on a Will executed
by one deceased Venkatesh Subray Palekar. While
entertaining the objection raised by the defendants,
learned Judge by treating issue relating to payment of
Court fee has answered the said issue in the affirmative
NC: 2024:KHC-D:7025
and has called upon the petitioners/plaintiffs to furnish a
fresh valuation in terms of Section 24(b) of the Karnataka
Court Fees and Suits Valuation Act.
3. This Court while examining the controversy
relating to the valuation of plaint for the purpose of Court
fee and jurisdiction when a declaration based on Will is
sought, which is held as 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.
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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.
11. xxxxx. 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). xxxxxx
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4. In the light of judgment rendered by this Court,
the order under challenge being contrary to the law laid
down by this Court is not sustainable. The order suffers
from material irregularity and therefore, liable to set-
aside.
ORDER
i) Writ petition is allowed.
ii) The impugned order under challenge is
hereby set-aside.
iii) Petitioners/plaintiffs and respondents/
defendants shall cooperate for early
disposal of the suit.
iv) Learned Judge shall expedite the matter
and decide the suit in accordance with law.
Sd/-
JUDGE
AM/-.
