Karnataka High Court
Mr Bellacchi @ Sundari vs Mrs Gracy Fernandes Nee D Souza on 5 September, 2024
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WP No. 5409 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 5409 OF 2022 (GM-CPC)
BETWEEN:
MR. BELLACCHI @ SUNDARI,
AGED ABOUT 59 YEARS,
W/O GOPALAM M.,
R/AT SAMRIDDHI HOIGEBAIL,
ASHOKANAGAR POST,
MANGALURU TALUK - 575 006.
REPRESENTED BY HER GPA HOLDER,
SRI. NARAYANA MANIYANI S,
AGED ABOUT 56 YEARS,
S/O MAHALINGA MANIYANI,
...PETITIONER
(BY SRI. VIJAYA KRISHNA BHAT M., ADVOCATE)
AND:
Digitally 1. MRS. GRACY FERNANDES NEE D'SOUZA,
signed by AGED ABOUT 71 YEARS,
MEGHA W/O NORMAN FERNANDES,
MOHAN D/O LATE ELIZABETH D'SOUZA,
Location: R/AT EVERSHINE CITY,
HIGH COURT AVENUE, SECTOR III BUILDING 119,
OF FLAT NO.G-004, VASAI EAST,
KARNATAKA MUMBAI - 401 208.
REPRESENTED BY HER GPA HOLDER
MR. NELSON DAVID D'SOUZA,
AGED ABOUT 50 YEARS,
S/O LATE JOHN B D'SOUZA,
R/AT MOLAMPIL HOUSE,
PANJIMOGARU POST,
NEAR PUMP HOUSE,
KULUR MANGALURU - 575 013.
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2. MRS. ANGELINE D'SOUZA @ CELL D'SOUZA
AGED ABOUT 95 YEARS,
W/O MONTHU D'SOUZA,
R/AT KOTTARA CHOWKI
MALEMAR ROAD, SOUZA COMPOUND,
MANGALURU
REPRESENTED BY HER DAUGHTER AND
GPA HOLDER MRS.LETITIA D'SOUZA,
AGED ABOUT 72 YEARS,
W/O AUGUSTINE D'SOUZA,
R/AT D'SOUZA COMPOUND,
NEAR MALEMAR ROAD,
KOTTARA CHOWKI
MANGALURU - 575 013.
3. MR. DANIEL FERRAO
AGED ABOUT 63 YEARS,
S/O LATE BENEDICT FERRAO
R/AT PAVOOR ULIYA HOUSE,
ADYAR POST,
MANGALURU TAUK - 575 029.
...RESPONDENTS
(BY SRI. RAKESH KINI, ADVOCATE FOR R1;
SRI. P. UDAYA SHANKAR PAI, ADVOCATE FOR R3;
R2 SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 226 OF CONSTITUITON OF
INDIA FILED PRAYING TO QUASH THE IMPUGNED ORDER DATED
15.12.2021 BEFORE THE 4TH ADDITIONAL CIVIL JUDGE,
MANGALURU, DK, O.S.NO.1591/2015 VIDE ANNEXURE-F AND HOLD
ADDITIONAL ISSUE NO.2 IN THE AFFIRMATIVEGRANT AN INTERIM
ORDER OF STAY OF ALL FURTHER PROCEEDINGS IN
O.S.NO.1591/2015 PENDING ON THE FILE OF THE 4TH ADDITIONAL
CIVIL JUDGE, MANGALURU, DK.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
05.09.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
Aggrieved by the order passed on the preliminary issue in
O.S.No.1591/2015 dated 15.12.2021 by the IV Additional Civil
Judge, Mangaluru, the petitioner/defendant No.2 is before this
Court.
2. The plaintiffs have filed the suit for permanent
prohibitory injunction restraining the defendants from
alienating the suit properties. Later, they sought for an
amendment wherein an additional relief of declaration that the
sale dated 30.05.2015 and the sale deed dated 01.10.2015
executed by the defendants in favour of the third parties are
not binding on the plaintiffs. The defendant No.2 has filed his
written statement and it is his specific stand that the suit is not
properly valued and the court fee paid is insufficient.
3. The trial court had framed an additional issue No.2,
which is treated as a preliminary issue. The issue framed by
the trial Court is "whether the defendants prove that the suit is
not properly valued for the purpose of court fee and
jurisdiction?" In the suit, the plaintiffs have valued the relief of
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declaration under section 24(d) of the K.C.F. & S.V. Act. It is
the case of the defendants that they have claimed that the sale
deeds are not binding on them indirectly. The plaintiffs are
claiming cancellation of sale deed and they are the co-owners
of the property. Therefore, they have to value the relief under
Section 26(a) and under Section 38 of the K.C.F. & S.V. Act.
The trial Court had held the issue against the defendants. While
giving a finding that the suit is properly valued for the purpose
of court fee and jurisdiction, the trial Court had considered the
judgement of the Hon'ble Apex Court in the case of Suhrid
Singh @Sardool Singh Vs. Randhir Singh and Others1 and
the Court has observed that as per the said judgement of the
Hon'ble Apex Court, the plaintiffs being the non-executants of
the document need not pay the court fee on advalorum value.
The suit need not be valued on the market value of the suit
properties, but a fixed court fee is sufficient. The trial Court
had also considered the argument of the defendants that the
plaintiffs are not the strangers, but they are claimed to be co-
sharers. Court observed that the judgment relied by the
defendant do not apply therefore, the said ruling is not
1
AIR 2010 SC 2807
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applicable to the facts of this case. The trial Court observed
that Section 50 of the Act says that, if no specific provision is
made in the act, value for the purpose of jurisdiction will be the
same as that of the value for the purpose of payment of court
fee. Under section 24(d) of the Act, no special provision is
made to value the jurisdiction. Therefore, for the purpose of
the jurisdiction also, the suit has to be valued under section
24(d) of the Act only. The Court had observed that the relief of
declaration that the sale deed are null and void has been
valued for an amount of Rs.1,000/- for the purpose of court fee
and jurisdiction. Therefore, the valuation made under Section
24(d) of the Act is correct and proper. Accordingly, it was held
that the suit is properly valued for the purpose of court fee and
jurisdiction and as the suit is of the year 2015, the parties are
directed not to seek adjournments to lead their evidence.
Aggrieved thereby, defendant No.2 is before this Court.
4. Learned counsel appearing for the petitioner/defendant
No.2 submits that the order passed by the trial Court is
arbitrary, illegal and liable to be set aside. The trial Court had
failed to consider various contentions as urged by the
petitioner/defendant No.2 and has erroneously held that the
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suit is properly valued. It is submitted that the trial Court had
failed to appreciate various judgements relied on by the
defendants. It is submitted that the injunctive relief sought by
the plaintiffs should have been valued under Section 26(a) of
the K.C.F. & S.V. Act and not under Section 26(c) of the Act.
The relief that is sought with reference to an immovable
property and the title of the plaintiffs in respect of the same is
denied. Hence, the prayer of permanent injunction sought by
the plaintiffs is clearly covered under section 26(a) of the
K.C.F. & S.V. Act. Coming to the declaratory relief, it should
have been valued under Section 38 of the Act. The Court had
failed to consider that aspect and erroneously held that the
court fee that is paid by the plaintiffs is sufficient. It is further
submitted that the value of the immovable property and the
market value of the property exceeds Rs.5 lakhs which is above
the pecuniary jurisdiction of the trial Court. It is submitted that
even otherwise, either under Section 24(d) or under Section
26(a) or under Section 38 of the Act, the basis of valuation for
the purpose of jurisdiction is the market value of the property
and this has not been done by the plaintiffs and if the proper
valuation is made, the suit will be out of the purview of the
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pecuniary jurisdiction of the trial Court. Learned counsel
submits that the writ petition has to be allowed and the order
passed by the trial Court has to be set aside.
5. Learned counsel appearing for the respondent/plaintiff
submits that the trial Court had rightly dealt with all the issues
and had rightly observed that the court fees that is paid by the
plaintiffs is proper. He submits that the case of the plaintiffs
squarely falls and covered by the judgement of the Hon'ble
Apex Court in Suhrid Singh's case referred supra and there is
no illegality with the order passed by the trial court. He submits
that when the trial court had rightly exercised the discretion,
this Court exercising the jurisdiction under Article 227 of the
Constitution of India cannot interfere with such a well
considered order.
6. Having heard the learned counsels on either side,
perused the entire material on record. The respondent herein
had initially filed a suit for permanent injunction. Thereafter, he
had sought for a declaration that the sale deeds executed by
the defendants are not binding on him. The plaintiffs had
valued the relief under section 24(d) of the K.C.F. & S.V. Act.
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According to the defendants, plaintiff has to value the relief
under Section 26(a) and under Section 38 of the K.C.F. & S.V.
Act. When declaration is sought with respect to the cancellation
of the sale deeds, the Hon'ble Apex court in Suhrid Singh's
case referred supra had made a distinction between a suit that
is filed by a executants of the document and a third party.
There is no dispute about the fact that the plaintiffs are third
parties to the said sale deed. At this juncture, it is appropriate
to look at para Nos.6, 7, 8, 9 and 10 of the judgement of the
Apex Court in Suhrid Singh's case referred supra.
"6. The second proviso to Section 7(iv) of the Act
will apply in this case and the valuation shall not
be less than the value of the property calculated in
the manner provided for by clause (v) of the said
section. Clause (v) provides that where the relief is
in regard to agricultural lands, court fee should be
reckoned with reference to the revenue payable
under sub-clauses (a) to (d) thereof; and where
the relief is in regard to the houses, court fee shall
be on the market value of the houses, under sub-
clause (e) thereof.
7. Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed.
But if a non-executant seeks annulment of a deed,
he has to seek a declaration that the deed is
invalid, or non est, or illegal or that it is not
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binding on him. The difference between a prayer
for cancellation and declaration in regard to a deed
of transfer/conveyance, can be brought out by the
following illustration relating to A and B, two
brothers. A executes a sale deed in favour of C.
Subsequently A wants to avoid the sale. A has to
sue for cancellation of the deed. On the other hand,
if B, who is not the executant of the deed, wants to
avoid it, he has to sue for a declaration that the
deed executed by A is invalid/void and non est
illegal and he is not bound by it. In essence both
may be suing to have the deed set aside or
declared as non-binding. But the form is different
and court fee is also different. If A, the executant
of the deed, seeks cancellation of the deed, he has
to pay ad valorem court fee on the consideration
stated in the sale deed. If B, who is a non-
executant, is in possession and sues for a
declaration that the deed is null or void and does
not bind him or his share, he has to merely pay a
fixed court fee of 19.50 under Article 17(iii) of the
Second Schedule of the Act. But if B, a non-
executant, is not in possession, and he seeks not
only a declaration that the sale deed is invalid, but
also the consequential relief of possession, he has
to pay an ad valorem court fee as provided under
Section 7(iv)(c) of the Act.
8. Section 7(iv)(c) provides that in suits for a
declaratory decree with consequential relief, the
court fee shall be computed according to the
amount at which the relief sought is valued in the
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plaint. The proviso thereto makes itclear that
where the suit for declaratory decree with
consequential relief is with reference to any
property, such valuation shall not be less than the
value of the property calculated in the manner
provided for by clause (v) of Section 7.
9. In this case, there is no prayer for cancellation
of the sale deeds. The prayer is for a declaration
that the deeds do not bind the "coparcenary" and
for joint possession. The plaintiff in the suit was
not the executant of the sale deeds. Therefore, the
court fee was computable under Section 7(iv)(c) of
the Act. The trial court and the High Court were
therefore not justified in holding that the effect of
the prayer was to seek cancellation of the sale
deeds or that therefore court fee had to be paid on
the sale consideration mentioned in the sale deeds.
10. We accordingly allow these appeals, set aside
the orders of the trial court and the High Court
directing payment of court fee on the sale
consideration under the sale deeds dated 20-4-
2001, 24-4-2001, 6-7-2001 and 27-9-2003 and
direct the trial court to calculate the court fee in
accordance with Section 7(iv)(c) read with Section
7(v) of the Act, as indicated above, with reference
to the plaint averments."
7. The Hon'ble Apex court in the above referred
judgment, observed that if a party to a sale deed seeks
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cancellation, he has to pay advalorum court fees on the
consideration mentioned in the sale deed. If a person who is a
non-executant is in possession of the property and the suit for
a declaration that the deed is null and void does not bind on his
share, he has to merely pay a fixed court fee of an amount of
Rs.1,950/- under Article 17(3) of the second schedule of the
Act. But if a non-executant is not in possession and he seeks
not only a declaration that the sale deed is void but also the
consequential relief of possession, he has to pay advalorum
court fee as provided under Section 7(4)(c) of the Act. In this
case, it is the case of the plaintiffs that they are in possession
of the property and he is a third party to the sale deed, as such
a fixed court fee has to be paid as per the judgement of the
Hon'ble Apex Court in Suhrid Singh's case referred supra.
8. In the considered opinion of this Court, the trial Court
in the light of the settled law had rightly held that the court
fees paid by the plaintiffs is sufficient. Hence, this Court do not
find any reasons to interfere with the order passed by the trial
Court and the writ petition deserves to be dismissed. Hence,
this Court is passing the following:
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ORDER
i. Accordingly, the writ petition is dismissed.
ii. All I.As. in the writ petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
MEG
