AGRA DIOCESAN TRUST ASSOCIATION versus ANIL DAVID AND ORS.
[2020] 3 S.C.R. 944, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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AGRA DIOCESAN TRUST ASSOCIATION
v.
ANIL DAVID AND ORS.
(Civil Appeal No. 1722 of 2020)
FEBRUARY 19, 2020
[ARUN MISHRA, M. R. SHAH
AND S. RAVINDRA BHAT, JJ.]
Uttar Pradesh Court Fees Act, 1870: s.7(iv-A) – Suits filed
by plaintiff- appellant for cancellation of sale deed – Contested by
defendants on the ground that although the relief for cancellation
of the sale deed in question was sought, but the appellant had
improperly valued the suit and paid insufficient court fee – Trial
court recorded the findings against the appellant and held that that
the suits were undervalued and court fee paid by the plaintiff was
insufficient – Aggrieved appellant filed writ petition contending that
the appellant was not party to the sale deed and, therefore, trial
court committed an error in deciding the issues against him and in
directing him to pay ad valorem court fee on the market value of the
land and that as the land in dispute was agricultural land, the
appellant was obliged to pay the court fee on the revenue payable
as fixed by the State Government in view of s.7(iv-A) of the Act –
High Court by impugned order accepted the respondent’s
contentions that the circle rate fixed by the collector to charge stamp
duty took into account the actual market value of the property
situated in the area – It further held that fixation of circle rate by
the collector is the proper mode for fixation or determination of the
market value unless an aggrieved
person challenges that the circle
rate fixed by the collector is not the correct market value of the
property – On appeal, held: There was no compulsion for the plaintiff
at the stage of filing the suit, to prove or establish the claim that the
suit lands were revenue paying and the details of such revenue paid
– Once it is conceded that the value of the land [per explanation to
s.7 (iv-A)] is to be determined according to either sub clauses (v),
(va) or (vb), this meant that the concept of “market value” - a wider
concept in other contexts, was deemed to be referrable to one or
other modes of determining the value under sub clauses (v), (va) or
(vb) of s.7 (iv-A) – This aspect was lost sight of by High Court, in
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the facts of this case – The reasoning and conclusions of the High
Court, are therefore, not sustainable – Consequently, the question
of what is the market value, based on the revenue payable, would
be an issue to be tried in the suit.
Allowing the appeals, the Court
HELD: 1. It is undisputed that the point in issue was with
respect to valuation for purposes of court fee; equally, it is not in
issue that since the plaintiff (i.e. petitioner) sought, in addition to
a declaration, in both the suits, decrees of cancellation, the crucial
point was what the correct value for purposes of court fee was.
Now, market value has been specifically defined, in the context
of a litigation like the present one. According to Section 7 (iv-A),
in case the plaintiff (or his predecessor-in-title) was not a party to
the decree or instrument, the value was to be according to one-
fifth of the value of the subject matter, “and such value shall be
deemed to be” under Section 7 (iv-A), “if the whole decree or
instrument is involved in the suit, the amount for which or value
of the property in respect of which the decree is passed or the
instrument executed”. Importantly, the explanation to Section 7
(iv-A) created a deeming fiction as to what constitutes the “value
of the property” by saying that “in the case of immovable property
shall be deemed to be the value as computed in accordance with
the sub-section (v), (v-A) or (v-B) as the case
may be.” [Para
15][959-D-G]
2. The plaintiff/petitioners’ contention was and continues
to be that the value determinable is in terms of clause (v) of
Section 7, by reason of Section 7 (iv-A). Section 7 (v) (i) contains
two clauses- (a) and (b): both are in respect of revenue paying
lands. The petitioner valued its suits on the basis of revenue
which according to it, was payable. While so stating, the value
(for purposes of court fee) was determined to be Rs.3000/- in
each of the suits. There was no compulsion for the plaintiff to, at
the stage of filing the suit, prove or establish the claim that the
suit lands were revenue paying and the details of such revenue
paid. Once it is conceded that the value of the land [per
explanation to Section 7 (iv-A)] is to be determined according to
either sub clauses (v), (va) or (vb) of the Act, this meant that the
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concept of “market value” – a wider concept in other contexts,
was deemed to be referrable to one or other modes of determining
the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A).
This aspect was lost sight of by the High Court, in the facts of
this case. The reasoning and conclusions of the High Court, are
therefore, not sustainable. Consequently, the question of what is
the market value, based on the revenue payable, would be an
issue to be tried in the suit. [Paras 16-18][959-H; 960-A, D-F]
Suhrid Singh alias Sardool Singh v. Randhir Singh &
Ors. (2010) 12 SCC 112 : [2010] 3 SCR 1121;
Shailendra Bhardwaj v. Chandra Pal & Anr., (2013) 1
SCC 579 : [2012] 10 SCR 1125 – relied on.
Case Law Reference
[2010] 3 SCR 1121
relied on
Para 12
[2012] 10 SCR 1125
relied on
Para 13
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1722
of 2020.
From the Judgment and Order dated 27.05.2019 of the High Court
of Uttarakhand at Nainital in Writ Petition No. 1758 of 2016 (M/S).
With
Civil Appeal No. 1723 of 2020.
P. N. Mishra, Sr. Adv., Nilakanta Nayak, Amit Yadav, B. D. Das,
Shishir Deshpande, Advs. for the Appellant.
Rakesh Dwivedi, Sr. Adv., Ms. Pallavi Langar, Amrendra Kumar
Mehta, Advs. for the Respondents.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. Leave granted. With consent of counsel for the parties, the
appeals were heard finally.
2. The appellant, (hereafter “the plaintiff”) had filed a suit (O.S.
24/ 2013) in the court of
the Civil Judge (Senior Division), Dehradun for
cancellation of a sale deed dated 08.03.2013, executed by the defendant-
AGRA DIOCESAN TRUST ASSOCIATION v.
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respondent no.1. The third respondent, (hereafter called the “purchaser”)
had acquired the property from the defendant-respondent no.1. Another
suit (O.S. No. 25/ 2013, also titled as Agra Diocesan Trust Association
v. Anil David and Others), was filed by the plaintiff for cancellation of
the sale deed dated 08.03.2013 executed by the first two respondents in
favour of the purchaser. A further relief sought was for permanent
injunction against the respondents/ defendants restraining them from
interfering in the plaintiff’s peaceful possession of the property in dispute.
The defendants filed their written statements, contending inter alia that
although the relief of cancellation of the sale deed in question has been
sought, the plaintiff had improperly valued the suit and the court fee paid
was insufficient.
3. The trial court on the pleadings of the parties, framed the issues;
the relevant issues, Nos. 8 and 10 in both suits were (a) whether the suit
filed by the plaintiff was undervalued and (b) whether the court fee paid
by the plaintiff was insufficient.
4. The trial court by its order dated 23.04.2016, recorded the
findings against the plaintiff / petitioner and held that the suits filed were
under-valued and the court fee paid by the plaintiff was insufficient.
Aggrieved by the same, the plaintiff filed the writ petition before the
High Court, contending that the land in dispute was agricultural land.
Further, it
was stated that the appellant-plaintiff was not party to the sale
deed, and therefore, the learned trial court has committed an illegality in
deciding the issues against the plaintiff and in directing the plaintiff to
pay ad valorem court fee on the market value of the land. It was also
submitted that as the land in dispute was agricultural land, the petitioner
was obliged to pay the court fee on the revenue payable as fixed by the
state government in view of Section 7(iv-A) of the Court Fees Act,
1870.
5. The High Court, by the impugned judgment, after hearing counsel
for the parties, accepted the respondent/defendants’ contentions that
the circle rate fixed by the collector to charge stamp duty took into
account the actual market value of the property situated in the area. It
was held that fixation of circle rate by the collector is the proper mode
for fixation or determination of the market value (for purposes of payment
of court fees), unless an aggrieved person challenges that the circle rate
fixed by the Collector is not the correct market value of the property.
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6. Mr. P.N. Mishra, learned senior counsel, argued that the land in
dispute is revenue payable land. Accordingly, the suits were correctly
valued at 30 times of the revenue fixed by the state. It was urged that
being a stranger to the sale deed in question, the plaintiff had to pay
1/5th on the market value as assessed, i.e. on 30 times the revenue. It
was urged that the market value in the sale deed was mentioned at
` 11,79,09,000/- and ` 7,20,36,000/- respectively as the market value
assessed in view of the circle rate fixed by the collector, which was not
the correct market value. Counsel relied on a textual interpretation of
Section 7(iv-A) of the Court Fees Act. Reliance was placed on
Shailendra Bhardwaj v. Chandra Pal & Anr., (2013) 1 SCC 579 to
say that the circle rate fixed by the collector for charging stamp duty is
not the correct market value of the property for the purpose of court
fees. Therefore, the market value mentioned in the sale deed in order to
pay the stamp duty, i.e. ` 11,79,09,000/- and ` 7,20,36,000/- respectively,
is not the correct market value of the property in dispute. Mr. Mishra
also argued that the suits were properly valued and the proper court fee
was paid. The courts below, according to him, erred in holding that the
suits were under-valued by the plaintiff and that the court fee paid was
insufficient.
7. Mr. Rakesh Dwivedi, learned counsel appearing for the
respondent defendants, resisted the present proceedings. He
urged that
this court should desist from interfering with the concurrent findings of
the courts below, under Article 226 of the Constitution of India. It was
also submitted by him that the circle rate fixed by the collector for charging
stamp duty was so fixed in terms of the actual market value of the
property situated in the area. It is argued that the fixation of circle rate
by the collector is the correct mode for fixation of market value, unless
an aggrieved person challenges that the circle rate fixed by the collector
is incorrect. It is submitted that the appellants, in an arbitrary manner,
valued the market value of the suit property for payment of court fee
and jurisdiction of the court.
8. In the impugned judgment, the High Court reasoned as follows:
“19. The submission of the learned counsel for the petitioners
that to ascertain the market value and for the purpose of
payment of court fee and jurisdiction of the court, should be
considered from plaint averments alone and what has been
stated in the written statement is not relevant is acceptable to
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the extent that what has been contended in the written
statement is not relevant, but the court has to consider while
determining the market value for the purpose of court fee
and jurisdiction of the court, the court has to consider the
averments of plaint, whether the suit has been valued for the
purpose of court fee and jurisdiction as per the relief claimed
and in accordance with the provisions contained in the Court
fee and Suit Valuation Act. The court is not supposed to accept
the plain averment in regard to the payment of court fee and
jurisdiction as contended by the plaintiff. On a perusal of
the plaint averments and the provisions contained in Section
7(iv-A), this Court is of the view that at one place the plaintiff
has valued the suit for cancellation of sale deed and for the
purpose of payment of court fee and jurisdiction
Rs. 2,00,00,000/- and immediately thereafter at thirty times
of the revenue payable i.e. Rs. 3,000/- and paid the court fee
on 1/5 of the valuation of Rs. 3,000/-.
20. It is nowhere stated in the plaint that how the plaintiff has
valued the market value of the property in question at
Rs. 2,00,00,000/- whereof as per the circle rate fixed by the
Collector, the market value of the property in dispute is
Rs. 11,00,00,000/-. The stamp duty has been paid on an amount
of Rs. 2,00,00,000/- sale consideration but in view of the
provisions contained in Section 7(iv-A) of the Act the sale
consideration is not the relevant factor for the purpose of
payment of court fee and jurisdiction of the court. It is only
the market value of the suit property the court fee is to be
paid and jurisdiction of the court be fixed. The plaintiff cannot
take two contradictory market value in his plaint, as in one
place he has fixed the market value of Rs. 2,00,00,000/- and
the jurisdiction of hearing the suit for valuation of
Rs. 1,00,000/- vests in Civil Judge (Sr. Div.), whereof a suit
valued for an amount of Rs. 3,000/- for the purpose of payment
of court fee and jurisdiction, the jurisdiction to try the suit of
the valuation of Rs. 3,000/- vests in the court of Civil Judge
(Jr. Div.).
21. Section 15 the Code of Civil Procedure provides that every
suit shall be instituted in the court of the lowest grade
competent to try it. Section 15 of CPC is quoted hereunder:
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“15. Court in which suits to be instituted.- Every suit shall be
instituted in the Court of the lowest grade competent to try
it.”
22. Assuming that the market value of the suit property is
Rs. 3,000/-, as per the averment of the plaint, then the suits
could not have been filed in the Court of Civil Judge (Sr.
Div.). If it is a valuation of Rs. 2,00,00,000/- as per the plaint
averment for the purpose of payment of court fee and
jurisdiction and the suits have been instituted in the competent
court of jurisdiction, then there is no basis of it that the market
value of the suit is Rs. 2,00,00,000/-. The submission of
learned counsel for the petitioners that circle rate is not the
correct mode to ascertain the market value has some force,
but it is not the absolute proposition. In some cases, the market
value may be higher or lower then the circle rate but to
ascertain the market value, the party assailing the market
value as fixed in the circle rate has to prove that the circle
rate has not been fixed on the real market value. Unless
otherwise market value is proved on higher or lower side, the
market value assessed on the basis of circle rate cannot be
said improper/incorrect market value.
23. A perusal of the impugned order would show that the
trial court having considered the market value as mentioned
in the sale deed has found the correct market value of the
suit property and held that the suits have not been valued
properly. Thus, I am of the
considered view that since no other
market value has been proved by the petitioners/plaintiff that
the settled revenue of the land is Rs. 3,000/- and in absence
of any evidence in this regard, the trial court has rightly
considered the market value of the property in dispute in
accordance with the market value fixed by the Collector in
order to charge the stamp duty, which is the correct market
value.
24. So far the findings recorded by the trial court that the
petitioners/plaintiff is required to pay the ad valoram court
fee on the market value is incorrect in view of the provisions
contained in Sub Section (2) of Section 7(iv-A) of the Court
Fee Act. Since the petitioners/plaintiff or its predecessor-in-
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interest is not the party to the instrument, therefore, the
petitioners/plaintiff is obliged to pay 1/5 of the value of the
subject matter as mentioned in the instrument involved in the
suit.
25. In view of the findings recorded above, I am of the
considered view that the trial court has rightly held that O.S.
no. 24 of 2013 and O.S. 25 of 2015 have been undervalued
and court fee paid is insufficient and in fixation of market
value as mentioned in the sale deed Rs. 11,79,09,000/- (in
O.S. no. 24 of 2013) and Rs. 7,20,36,000/- (in O.S. no. 25 of
2013) is correct, whereof the finding in regard to the payment
of ad valorem court fees are illegal and is liable to set aside.
Thus, the judgment and order passed by the trial court on
issue nos. 8 and 9 are modified to the extent that the plaintiff
shall value the suit no. 24 of 2013 at the rate of
Rs. 11,79,09,000-and O.S. no. 25 of 2013 at the rate of
Rs. 7,20,36,000/- respectively, and shall pay the court fee on
1/5 of the aforesaid value thereon. So far Relief ‘B’ and ‘C’
are concerned, the petitioners have paid the fixed court fee.
The petitioners shall pay the remaining court fee within two
months from today, on payment of remaining court fee the
trial court shall proceed to decide both the suits in accordance
with law.”
9. For a proper appreciation of the issue, it would be essential to
extract the relevant provisions of law. Section 7(iv-A) of the U.P. Court
Fees Act,
1870 reads as follows:
“7. Computation of fees payable in certain suits- The amount
of fee payable under this Act in the suits next hereinafter
mentioned shall be computed as follows: -
XXXXXX
XXXXXX
XXXXXX
For cancellation or adjudging void instruments and decrees.
(iv-A) In suit for or involving cancellation of or adjudging
void or voidable decree for money or other property having
a market value, or an instrument securing money or other
property having such value:
(1) where the plaintiff or his predecessor-in-title was a party
to the decree or the instrument, according to the value of the
subject-matter, and
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(2) where he or his predecessor-in-title was not a party to the
decree or instrument, according to one-fifth of the value of
the subject matter, and such value shall be deemed to be-
if the whole decree or instrument is involved in the suit, the
amount for which or value of the property in respect of which
the decree is passed or the instrument executed, and if only a
part of the decree or instrument is involved in the suit, the
amount or value of the property to which such part relates.
Explanation - ‘The value of the property’ for the purposes of
this sub-section, shall be the market-value, which in the case
of immovable property shall be deemed to be the value as
computed in accordance with the sub-section (v), (v-A) or (v-
B) as the case may be.
For easement.- (iv-B) In suits – (a) for a right to some benefit
(not herein otherwise provided for) to arise out of land;
For an injunction – (b) to obtain an injunction:
To establish an adoption – (c) to establish an adoption or to
obtain a declaration that an alleged adoption is valid;
To set aside an adoption- (d) to set aside an adoption or to
obtain a declaration that an alleged adoption is invalid or
never, in fact, took place;
To set aside an award other than awards mentioned in Section
8. - (e) to set aside an award not being an award mentioned
in Section 8;
according to the amount at which the relief sought is valued
in the plaint:
[Provided that such amount shall not be less than one fifth of
the
market value of the property involved in or effected by
the relief sought or Rs.200 whichever is greater:
Provided further that in the case of suits falling under clauses
(a) and (b), the amount of court fee leviable shall in no case
exceed Rs.500].
Explanation 1.- When the relief sought is with reference to
any immovable property the market value of such property
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shall be deemed to be the value computed in accordance with
sub-section (v), (v-A) or (v-B) of this section, as the case may
be.
Explanation 2 – In the case of suits-
(i) falling under clauses (a) and (b), the property which is
affected by the relief sought, and where properties of both
the plaintiff and defendant are affected, the property of the
plaintiff so affected;
(ii) falling under clauses (c) and (d), the property to which
title by succession or otherwise may be diverted or affected
by the alleged adoption; and
(iii) falling under clause (e), the property which forms the
subject-matter of the award;
shall be deemed to be the property involved in or affected by
the relief sought within the meaning of the proviso to this
sub-section.
For restitution of conjugal rights – (iv-C) in suits – (a) for the
restitution of conjugal rights;
For marital rights – (b) for establishing or annulling or
dissolving a marriage;
For guardianship – (c) for establishing a right to the custody
or guardianship of any person such as a minor, including
guardianship for the purpose of marriage.
according to the amount at which the relief sought is valued
in the plaint, but in no case shall such amount be less than
Rs.200.
For possession of lands, buildings or gardens – (v) in suits
for the possession of land, buildings or gardens-
according to the value of the subject matter; and such value
shall be deemed to be-
(I) where the
subject-matter is land, and
(a) where the land forms an entire estate, or a definite share
of an estate, paying annual revenue to Government, or forms
part of such an estate and is recorded in the Collector’s
register as separately assessed with such revenue; and such
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revenue is permanently settled—ten times the revenue so
payable;
(b) where the land forms an entire estate, or a definite share
of an estate, paying annual revenue to Government, or forms
part of such estate and is recorded as aforesaid  and such
revenue is settled, but not permanently—
ten times the revenue so payable;
(c) where the land pays no such revenue, or has been partially
exempted from such payment, or is charged with any fixed
payment in lieu of such revenue, and net profits have arisen
from the land during the year next before the date of presenting
the plaint—
twenty times the annual average of such net profits; but when
no such net profits have arisen therefrom the market value
which shall be determined by multiplying by twenty the annual
average net profits of similar land for the three years
immediately preceding the date of presenting the plaint;
(d) where the land forms part of an estate paying revenue to
Government, but is not a definite share of such estate and
does not come under clause (a), (b) or (c) above-
the market value of the land which shall be determined by
multiplying by fifteen the rental value of the land, including
assumed rent on proprietary cultivation, if any;
(II) where the subject matter is a building or garden-
Explanation.—The word “estate”, as used in this sub-section,
means any land subject to the payment of revenue, for which
the proprietor or a farmer or raiyat shall have executed a
separate engagement to
Government, or which, in the absence
of such engagement, shall have been separately assessed with
revenue;
For possession of superior proprietary and under-proprietary
land – (v-A) In suits for possession -
(1) of superior proprietary rights where under-proprietary
or sub-proprietary rights exist in the land-
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according to the market value of the subject matter, and such
value shall be determined by multiplying by fifteen the annual
net profits of the superior proprietor;
(2) of under proprietary or sub-proprietary land as such -
according to the value of the subject matter, and such value
shall be determined by multiplying by ten the annual under-
proprietary or sub-proprietary rent, as the case may be,
recorded in the Collector’s register as payable for the land
for the year next before the presentation of the plaint.
If no such rent is recorded in the collector’s register the value
shall be determined in the manner laid down in clause (c) of
sub-section (v) of this section save that the multiple will be
ten.
Explanation – Land held by any permanent lessees shall be
treated for the purposes of this sub-section, as under-
proprietary or sub-proprietary land.
Possessory suit between tenants – (v-B) In suits for possession
of land between rival tenants and by tenants against trespasser
according to the value of the subject-matter and such value
shall be determined if such land is the land of-
(a) a permanent tenure-older or a fixed rate tenant – by
multiplying by twenty the annual rent recorded in the
Collector’s register as payable for the land for the year
next before the presentation of the plaint;
(b) an ex-proprietary or occupancy tenant – by multiplying
by two such rent in case of suits for possession of land
between
rival tenants, and by annual rent in suits by tenants
against trespassers;
(c) any other tenant – by annual rent.
If no such rent is recorded in the Collector’s register, the value
shall be determined in the manner laid down in clause (c) of
sub-section (v) of this section save that the multiple shall be
that entered in clauses (a), (b) and (c) of this sub-section
according as the class of tenancy affected is governed by
clauses (a), (b) or (c) of this sub-section.”
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10. In OS No. 24/2013, the averment with respect to suit valuation
and court fee was as follows:
“15. That the valuation of the suit for the purpose of court
fee and jurisdiction is as under: -
(a) Relief “A” is for cancellation of sale deed.
The relief “A” is valued for the purpose of court fee and
jurisdiction at Rs.2,00,00,000/- Hence, relief “A” is valued
for the purpose of court fee and jurisdiction at 30 times of
the land revenue, i.e., Rs.3,000/-. The plaintiff was not a party
to the sale deed, hence the court fee of 1/5 of Rs.3,000/- is
being paid.
(b) For Relief “B” - Rs.5,00,000/-, on which the prescribed
court fee has been paid.
(c) For Relief “C” -Rs.5,00,000/-, on which the prescribed
court fee has been paid.”
In O.S. No. 25 of 2013, the averment with respect to valuation
for purposes of court fees, is as below:
“15. That the valuation of the suit for the purpose of court
fee and jurisdiction is as under: -
(a) Relief “A” is for cancellation of sale deed.
The relief “A” is valued for the purpose of court fee and
jurisdiction at Rs.1,00,00,000/- Hence, relief “A” is valued
for the purpose of court fee and jurisdiction at 30 times of
the land revenue, i.e., Rs.3,000/-. The plaintiff was not a party
to the sale deed, hence the court fee of 1/5 of Rs.3,000/- is
being paid.
(b) For Relief “B” - Rs.5,00,000/-, on which the prescribed
court fee has been paid.
(c) For Relief “C” -Rs.5,00,000/-, on which the prescribed
court fee has been paid.”
11.
The reliefs sought in each case were:
(i) for a decree for declaration that the sale deed dated 08.03.2013
executed by defendant no. 1 in favour of defendant no. 3 (suit no.
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24 of 2013) is void and not binding on the plaintiff and a decree of
cancellation thereof;
(ii) for a decree for declaration that the sale deed dated 08.03.2013
executed by defendant nos. 1 and 2 in favour of defendant no. 3
(suit no. 25 of 2013), is void and not binding on the plaintiff and a
decree of cancellation thereof;
(iii) a decree for permanent injunction restraining defendant nos.
1 to 3, their agents, employees, representatives etc. from interfering
in any way with the property more fully described in the schedule
of the plaint, till the disposal of the suit (in both suits); and
(iv) a decree of permanent injunction restraining defendant no. 3,
his agents, employees, representatives etc. from in any way
transferring, alienating or creating third party interest in the property
more fully described in the schedule of the plaint till the disposal
of the suit (in both suits).
12. In Suhrid Singh alias Sardool Singh v. Randhir Singh &
Ors. (2010) 12 SCC 112, this court noted that the trial court ruled that
the claims relating to the sale deeds amounted to seeking cancellation of
the sale deeds and therefore, ad valorem court fee was payable on the
sale consideration in respect of the sale deeds. The said view was
affirmed in the revision. The court addressed the issue of court fee
payable in regard to the claim for a declaration that the sale deeds were
void and not “binding on the coparcenary”, and for the
consequential
relief of joint possession and injunction. After referring to the provisions
of the Court Fees Act, 1870 as amended in Punjab (as the controversy
arose from the High Court of Punjab and Haryana), the Court held:
“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 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
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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 Rs. 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.
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 plaint. The proviso thereto makes it clear 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.”
13. In Shailendra Bhardwaj & Ors. v. Chandra Pal & Anr.
(supra), this court had to consider whether a suit for
declaration that a
will and a sale deed are void resulting in their cancellation, fell under
Section 7(iv-A) of the Court Fees Act, 1870 as amended by the U.P.
Amendment Act (Act 19 of 1938) or Article 17(iii) of Schedule II of the
Court Fees Act, 1870 for the purpose of valuation. The trial court had
held that the court fee had to be paid under Section 7(iv-A) and the High
Court affirmed that view. This court noted the provisions of the Court
Fees Act, 1870 as amended by the U.P. Amendment Act (Act 19 of
1938) and held as follows:
“On comparing the above mentioned provisions, it is clear
that Article 17(iii) of Schedule II of the Court Fees Act is
applicable in cases where the Plaintiff seeks to obtain a
declaratory decree without any consequential relief and there
is no other provision under the Act for payment of fee relating
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to relief claimed. Article 17(iii) of Schedule II of the Court
Fees Act makes it clear that this Article is applicable in cases
where the Plaintiff seeks to obtain a declaratory decree
without consequential reliefs and there is no other provision
under the Act for payment of fee relating to relief claimed. If
there is no other provision under the Court Fees Act in case
of a suit involving cancellation or adjudging/declaring void
or voidable a will or sale deed on the question of payment of
court fees, then Article 17(iii) of Schedule II shall be
applicable. But if such relief is covered by any other provisions
of the Court Fees Act, then Article 17(iii) of Schedule II will
not be applicable. On a comparison between the Court
Fees Act and the U.P. Amendment Act, it is clear that Section
7(iv-A) of the U.P. Amendment Act covers suits for or involving
cancellation or adjudging/declaring null and void decree for
money or an instrument securing money or other property
having such value.”
14. The Court observed that the suit was filed after the death of
the testator, and that the suit property covered by the will had to be
valued. The court felt that since Section 7(iv-A) of the U.P. Amendment
Act specifically provided that payment of court fees in cases where the
suit is for, or involving cancellation or adjudging/declaring null and void a
decree for money or an instrument, Article 17(iii) of Schedule II of the
Court Fees
Act was inapplicable. The U.P. Amendment Act, therefore,
was applicable despite the fact that no consequential relief had been
claimed. Consequently, in terms of Section 7(iv-A) of the U.P.
Amendment Act, court fees were to be computed according to the value
of the subject-matter. The trial court and the High Court correctly held it
to be so. The court distinguished Suhrid Singh’s case (supra) stating
that:
“10. We are of the view that the decision of this Court in
Suhrid Singh (supra) is not applicable to the facts of the
present case. First of all, this Court had no occasion to
examine the scope of the U.P. Amendment Act. That was a
case in which this Court was dealing with Sections 7(iv)(c),
(v) and Schedule II Article 17(iii), as amended in the State of
Punjab. The position that we get in the State of Punjab is
entirely different from the State of U.P. and the effect of the
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U.P. Amendment Act was not an issue which arose for
consideration in that case. Consequently, in our view, the said
judgment would not apply to the present case.
11. The Plaintiff, in the instant case, valued the suit at Rs. 30
lakhs for the purpose of pecuniary jurisdiction. However,
for the purpose of court fee, the Plaintiff paid a fixed court
fee of Rs. 200 Under Article 17(iii) of Schedule II of the Court
Fees Act. The Plaintiff had not noticed the fact that the above
mentioned Article stood amended by the State, by adding the
words “not otherwise provided for by this Act”. Since Section
7(iv-A) of the U.P. Amended Act specifically provides for
payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring void or voidable an
instrument securing property having money value, Article
17(iii) of Schedule II of the Court Fees Act shall not be
applicable.”
15. It is evident from the above discussion that it is undisputed
that the point in issue was with respect to valuation for purposes of court
fee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein)
sought, in addition to a declaration, in both the suits, decrees of
cancellation, the crucial point was what the correct value for purposes
of court fee was. Now, market value has been specifically defined, in
the context of a litigation like the present one. According to Section 7
(iv-A), in case the plaintiff (or his predecessor-in-title) was
not a party
to the decree or instrument, the value was to be according to one-fifth of
the value of the subject matter, “and such value shall be deemed to
be” under Section 7 (iv-A),“if the whole decree or instrument is
involved in the suit, the amount for which or value of the property
in respect of which the decree is passed or the instrument executed”.
Importantly, the explanation to Section 7 (iv-A) created a deeming fiction
as to what constitutes the “value of the property” by saying that “in the
case of immovable property shall be deemed to be the value as
computed in accordance with the sub-section (v), (v-A) or (v-B) as
the case may be.”
16. The plaintiff/petitioners’ contention was and continues to be
that the value determinable is in terms of clause (v) of Section 7, by
reason of Section 7 (iv-A).  Section 7 (v) (i) contains two clauses- (a)
and (b): both are in respect of revenue paying lands. The petitioner valued
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its suits on the basis of revenue which according to it, was payable.
While so stating, the value (for purposes of court fee) was determined
to be ` 3000/- in each of the suits.
17. A plain reading of the impugned judgment reveals that what
weighed heavily with the High Court was the fact that the plaintiff valued
the suits differently for the purposes of court fees and jurisdiction, and
secondly that:
“no other market value has been proved by the petitioners/
plaintiff that the settled revenue of the land is Rs. 3,000/- and
in the absence of any evidence in this regard, the trial court
has rightly considered the market value of the property in
dispute in accordance with the market value fixed by the
Collector in order to charge the stamp duty, which is the correct
market value.”
In the opinion of this court, there was no compulsion for the plaintiff
to, at the stage of filing the suit, prove or establish the claim that the suit
lands were revenue paying and the details of such revenue paid. Once
it is conceded that the value of the land [per explanation to Section 7
(iv-A)] is to be determined according to either sub clauses (v), (va) or
(vb) of the Act, this meant that the concept of “market value” – a wider
concept in other contexts, was deemed to be referrable to one or other
modes of determining the value under sub clauses (v), (va) or (vb) of
Section 7 (iv-A). This aspect was lost sight of by the High Court, in
the
facts of this case. The reasoning and conclusions of the High Court, are
therefore, not sustainable.
18. In view of the above discussion, the impugned judgment and
order, and that of the trial court, cannot stand. Consequently, the question
of what is the market value, based on the revenue payable, would be an
issue to be tried in the suit. Resultantly, the appeals succeed and are
allowed without any order on costs.
Devika Gujral
Appeals allowed.