Whether a will would be treated as an instrument securing money or other property having such value.” It was further observed in paragraph 19 that “a document or an instrument which creates title is certainly a document securing property having money value. A suit involving cancellation or adjudication as void or voidable of such a document it certainly covered by Section 7(ivA) (U.P. Amendment) of the Court Fees Act.
(2006) 1 UC 560
UTTARAKHAND HIGH COURT
SINGLE BENCH
( Before : B.S. Verma, J )
SMT. INDIRA MOHINI AND ANOTHER — Appellant
Vs.
DISTRICT JUDGE AND OTHERS — Respondent
Civil Writ Petition No. 529 of 2002 (M/S)
Decided on : 14-07-2005
Civil Procedure Code, 1908 (CPC) – Section 115
Constitution of India, 1950 – Article 227
Court Fees Act, 1870 – Article 17, Section 12, Section 7
Cases Referred
Sri Ratnavaramaraja Vs. Smt. Vimla, AIR 1961 SC 1299 : (1961) 3 SCR 1015
Counsel for Appearing Parties
P.C. Bisht, for the Appellant; Learned Standing Counsel for Respondent No. 1, Naresh Pant and B.D. Pandey for Respondent Nos. 2 to 4, for the Respondent
JUDGMENT
B.S. Verma, J.—By means of this Writ Petition, the Petitioners have assailed the judgment and order dated 14-05-2002 and the order dated 22-8-2001 passed by the District Judge, Nainital and the Civil Judge (Senior Division) VII F.T.C. (annexures 4 and 3 respectively).
2. Brief facts giving rise to the present writ petition are that the Respondents No. 2 to 4 filed a Civil suit before the Civil Judge (Senior Divison) Nainital, which was registered as Civil Suit No. 86 of 1997 for declaration and permanent, prohibitory injunction as well as mandatory injunction. In the suit the Plaintiffs sought relief of declaration that the gift deed dated 22-10-1981 executed in favour of the Defendant No. 2 by Defendant No. 1 is null and void and relief of permanent prohibitory injunction against the Defendants restraining them from interfering with the possession of the Plaintiffs as well as from demolishing the building named Hari Niwas situate over plot ‘J’ as shown in the plaint-map. It was also prayed that Defendants No. 4 and 5 be directed to take open strip of land in their possession which is lying between the land of the Plaintiffs and Defendant No. 1 and to use the same for public utility. In that suit the Respondents claimed that their father purchased a piece of land being plot No. “J” where existed a two storeyed outhouse situated at Ashdale Lodge Compound Sukhatal, Mallital, Nainital from Kundan Lal Sah Trust through a registered sale deed. According to the Petitioners, the Petitioner No. 1 also purchased land and property known as Ashadale Cottage by a registered sale-deed from the same trustees of the Kundan Lal Sah Trust through a registered sale deed. Subsequently the Petitioner No. 1 executed the gift deed dated 22-10-1981 in favour of her daughter, the Petitioner No. 2, thereby donating some portion of the said cottage property purchased by her. The gift deed was also registered in the office of the Sub-Registrar on 5-11-1981. The Respondents in the civil suit claimed that Trustees of Kundan Lal Sah Trust left a strip of land towards north open between the two properties Ashdale Cottage and Ashdale Lodge Compound out of Ashdale Lodge Compound land after plots sold by them to different persons including the father of the Respondent Nos. 2 to 4. The Petitioners alleged that the Respondents have given wrong description of the property and the land in the gift-deed vis-a-vis the property purchased by the Petitioner No. 1 so as to grab the other land. Hence the Civil Suit was filed by the Respondents No. 2 to 4 against the Defendants for the reliefs mentioned earlier.
3. The Petitioners contested the suit by filing their written statement in the trial court stating therein that it was the Plaintiffs themselves who were making encroaching over the property of the Defendants and the suit was filed on false, frivolous and distorted facts. The Petitioners have not changed the boundaries of the purchased property of which they are in possession. According to the Defendant-Petitioners, the Plaintiff-Respondents started to raise some construction over their plot and in that process, they tried to make encroachment towards the south of their property, which was objected to by the Petitioners and the Petitioners also got the spot inspected by Tahsildar, Nainital, who testified the encroachment over 32 Sq. Ft. land of the Petitioners. In the year 1996, when the Petitioners were out of station, the Respondent-Plaintiffs started illegal construction encroaching the Petitioners’ property and it was after this illegal construction of the Plaintiffs that they filed the Civil Suit to justify their illegal construction on the pretext that all the construction over plot ‘J’ was about 31 years old. In their written statement, the Petitioner-Defendants also raised a plea regarding valuation and payment of court-fees by the Plaintiffs. The Trial Court framed Issue No. 5 on the pleadings of the Petitioner-Defendants to the effect “Whether the suit is under valued and the court fee paid is insufficient, if so, its effect? According to the Defendant-Petitioners the Plaintiffs should have paid the Court fee for the first relief seeking declaration of the gift-deed dated 22-10-1981 as null and void as provided u/s 7(iv-A) of the Court Fees Act.
4. The Trial Court decided preliminary Issue No. 5 by its order dated 22-8-2001 directing the Plaintiffs to pay the court-fee in respect of relief Clause (a) as per market value of the property under the gift-deed in question. Aggrieved by this order, the Plaintiffs-Respondents went up in appeal before the District Judge, which was registered as Misc. Civil Appeal No. 4 of 2002. The learned District Judge relying upon a Division Bench decision of the Allahabad High Court in the case of Smt. Shefali Roy V. Hero Jaswant Dass and Ors. 1992 AWC 1000: 1992 ALJ 728, observed that the Court Fee payable in the case shall be governed under Article 17 of Schedule II of the Court Fees Act. Accordingly the District Judge vide judgment and order dated 14-5-2002 allowed the appeal and set-aside the impugned order dated 22-8-2001. Issue No. 5 was decided in the negative. Aggrieved by the impugned judgment and order dated 14-5-2002 the Defendants-Petitioners have come up in this writ petition.
5. In support of their contention, it was contended that the finding of the District Judge that the Court fee is payable under Article 17 of Schedule II of the Court Fees Act is not tenable, rather the Court fees was payable as provided u/s 7(iv-A) (U.P. Amendment) of the Court fees Act. It was further submitted that the declaration of this gift-deed as null and void amounts to the cancellation of the instrument itself.
6. I have heard learned Counsel for both the parties and have perused the entire material on record including the impugned orders.
7. The short question for determination in this writ petition is whether the finding of the District Judge to the effect that the Court fees payable under Article 17 of Schedule II is contrary to the provisions of the Court Fees Act.
8. Learned Counsel for the Petitioners vehemently submitted that the learned District Judge erred in relying upon the decision of the case Smt. Shefali Roy v. Hero Jaswant Dass 1992 ALJ 728. It was submitted that the instant case is fully covered by the decision of the Allahabad High Court in the matter of Kailash Chand v. Vth A.C.J. Meerut and Ors. 1999 (1) ARC 519. Learned Counsel further submitted that in the said judgement, the Division Bench of the Allahabad High Court has not agreed with the view expressed by the Division Bench in Smt. Shefali Roy’s case. On the other hand, the learned Counsel for the Respondents has placed reliance in the decision of the Apex Court in the case of Sri Ratnavaramaraja Vs. Smt. Vimla, .
9. I have carefully perused the decisions referred to above by the learned Counsel for the rival parties. At the outset, it may be mentioned that the case-law Sri Ratnavaramaraja Vs. Smt. Vimla, , the matter before the Apex Court was the question of Court fee on plaint decided against Defendants. It was held by the Apex Court that Defendant has no grievance and has no right of revision. Moreover, the Apex Court has dealt with the provisions Tamil Nadu Court-fees and Suits Valuation Act and that of Section 12 of the Court-fees Act. It was observed in that case that “Whether proper court-fee is paid on a plaint is primarily a question between the Plaintiff and the State. The jurisdiction in revision exercised by the High Court u/s 115 of the CPC is strictly conditioned by Clause (a) to (c) thereof. The Defendant who may believe and even honestly, that proper court-fee has not been paid by the Plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.” Moreover, the provisions of T.N. Court-fees and Suits Valuation Act vis-a-vis Section 12 of the Court-fees Act were dealt with by the Apex Court. The controversy before us is confined to the provisions of Section 7(iv-A) of the Court-Fees Act. The case before the Hon’ble Apex Court related to the provisions of Section 115 of the Code of Civil Procedure, while before this Court, writ petition under Article 227 has been filed. Therefore, the case law of the Apex Court is quite distinct and in my view, the same is not at all applicable to the present case while this Court is exercising supervisory jurisdiction under Article 227 of Constitution.
10. Now, the only consideration before me is whether the ratio of Smt. Shefali Roy case will hold good in the facts and circumstances of the case. It is noteworthy that in the Shefali Roy case as well as in the case of Kailash Chand (supra), the Division Bench of the Allahabad High Court dealt with the provisions of Section 7(iv-A) of the Court Fees Act, 1870. For the just decision on the case, the reliefs (a) and (b) sought for in the plaint are detailed below:
(a) That it may be declared that the gift deed executed in favour of the Defendant No. 2 by the Defendant No. 1 dated 22-10-81 and registered in the office of Sub-Registrar Nainital in Book No. l, Volume 291 at pages 40 to 43 at serial No. 637 to 638 on 5-11-81 is null and void.
(b) That a decree of permanent Prohibitory Injunction be passed in favour of the Plaintiffs as against the Defendants restraining the Defendants, their servants and agents from in any way interfering, entering in or encroaching upon the land of the Plaintiffs and in any way demolishing the building ‘Hari Niwas’ or any part thereof situate at Sukhatal, Mallital, Nainital and within plot ‘J’ shown in the map annexed to the plaint by letters A-B-C-D-A within red colour permanently and for ever.
11. On the point of relief (b), the learned trial court observed that the Plaintiffs have sought permanent prohibitory injunction against the Defendants on the basis of the gift-deed being declared null and void as mentioned in relief Clause (a). It is not disputed that the gift-deed in question dated 22-10-1981 was executed in favour of the Defendant No. 2 donating a substantial portion out of the Ashdale Cottage compound property purchased by her, as alleged in paragraph 8 of the plaint. The learned Trial Court clearly observed that for the purposes of payment of court fee u/s 7(iv-A) shall be applicable instead of Schedule-II, Article 17 of the said Court Fees Act. Accordingly, the learned Civil Judge (Sr. Div.) Nainital directed the Plaintiffs to pay the court fee. It may be mentioned that the cancellation of the alleged gift-deed has been prayed by the Plaintiffs. The Division Bench of the Allahabad High Court in the case of Kailash Chand (supra) has dealt with the provisions of Section 7(iv-A) and Schedule II, Article 17(iii) [as amended by U.P. Act No. XIX of 1938]. In paragraph 11, it has been observed that “a careful reading of Section 7(iv-A) makes it abundantly clear that it also 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. The question, therefore, is whether a will would be treated as an instrument securing money or other property having such value.” It was further observed in paragraph 19 that “a document or an instrument which creates title is certainly a document securing property having money value. A suit involving cancellation or adjudication as void or voidable of such a document it certainly covered by Section 7(ivA) (U.P. Amendment) of the Court Fees Act.” In this case, the Division Bench of the Allahabad High Court has dissented from the view taken in Smt. Shefali Roy case (supra), therefore, I am of the considered view that the ratio of the Kailash Chand case will be fully applicable in the case before me.
12. For the reasons and discussion aforementioned, the impugned judgment and order dated May 14, 2002 passed by the learned District Judge cannot be upheld. The order dated 22-8-2001 passed by the Trial Judge is liable to be affirmed. The Writ Petition succeeds.
13. The Writ Petition is hereby allowed. The judgment and order under challenge dated 14-5-2002 is set aside and the order dated 22-8-2001 passed by the learned Civil Judge (Sr. Div.) Nainital is upheld. No order as to costs.
14. Interim order dated 19-7-2002 passed by this Court is vacated.
Final Result : Allowed
