It was sought to be contended by the learned counsel for the
Petitioner that the Defendant Nos.1 and 2 by playing a fraud and misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay advalorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in favour of the Defendant Nos.3 to 5. In my view, that cannot be a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the
reliefs sought in the suit. The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2011
Shri Abdulsattar Gulabbhai Bagwan
versus
Shri Vaibhav Lxmangiri Gosawi,
CORAM : R M SAVANT, J.
Pronounced on : 01st December 2011
Citation: 2012(2) ALLMR310
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the Order dated 17/09/2010 passed by
the learned 6th Joint Civil Judge, Junior Division, Satara on the ApplicationExhibit40
filed by the Respondents herein in Regular Civil Suit No.19 of 2009
filed by the Petitioner.
3 The facts to be cited for adjudication of the above Petition are
stated thus :
The Petitioner is the original Plaintiff and the Respondents herein
are the original Defendants. The subject matter of the said suit is Gat No.850
bearing Old No.831 situated at Mauje Degaon, Taluka and District Satara
which land totally admeasuring 5 Hectares 74 Are. The said suit as original
filed was for a declaration that the sale deed dated 31/10/2008 was got
executed from the Plaintiff by playing fraud on him. It was the case of the
Plaintiff in the said suit that he along with the parents of the Defendants i.e.
Laxmangiri Ramgiri Gosawi and Kusum Laxmangiri Gosawi collectively
purchased the suit property by two registered sale deeds dated 2/8/1994 from
one Smt.Sarubai Bapurao Ghadge and Jijabai Sakharam Ghadge. It was further
his case that each of the said purchasers had 5 Anna and 4 Paisa share in the
suit property. It is further the case of the Petitioner that the said Laxmangiri
Ramgiri Gosawi died in August 2008. The present Defendants who are the
sons of the said Laxmangiri and Kusum Gosawi approached the Petitioner some
time in August 2008 and stated to him that for the development of the
property it is necessary that the property be subdivided according to the share
of respective parties. It is further the case of the Petitioner that the Defendants
further stated that since the Petitioner has difficulty on account of his advance
age, partition deed would be kept ready and that as and when they called him,
he should come only for affixing his signature before the SubRegistrar.
According to the Plaintiff, the Defendant Nos.1 and 2 called the Plaintiff on
31.10.2008 at 5.45 pm in the office of the SubRegistrar and on the pretext
that office is going to be closed soon within few minutes took his signature in
the late evening at about 6.20 pm on the purported partition deeds. It is the
case of the Plaintiff that he came to know that the said documents are in fact
two separate sale deeds respectively of his 1/2 share each executed in favour of
the Respondent Nos.1 and 2 respectively and the consideration of each alleged
sale deed is shown as Rs.32,500/ . It is in the said circumstances that the
Petitioner was constrained to file the said Regular Civil Suit No.19 of 2009 for
a declaration that the sale deeds dated 31/10/2008 were got executed from
the Petitioner by playing fraud. The substantive relief as sought in the said suit
was for a declaration that the sale deeds dated 31/10/2008 are not binding
upon the Petitioner as they are illegal without consideration and are therefore
not binding upon the Petitioner.
4 The Plaintiff after the filing of the suit came to known that the
Defendant Nos.1 and 2 have executed sale deed dated 15/12/2008 in favour of
the Respondent Nos.3, 4 and 5 herein by which the land admeasuring 3
Hectares 82.66 Are out of the said land was sold by them to the Respondent
Nos.3 and 4 for consideration of Rs.Twenty Four lacs. The Plaintiff thereafter
applied for amendment and amended the plaint by adding consequential
prayer that the sale deed dated 15/12/2008 executed by the Defendant Nos.1
and 2 in favour of the Defendant Nos.3 to 5 is not binding on the Plaintiff and
for impleadment of the Respondent Nos. 3 to 5 herein. The said application
was accordingly allowed, and resultantly the Respondent Nos.3 to 5 were
impleaded as the Defendants in the said suit and prayer clause A(1) came to be
added for a declaration that the so called sale deed executed by the
Respondent Nos.1 and 2 in favour of the Respondent Nos.3 to 5 herein dated
15/12/2008 is not at all binding on the Plaintiff.
5 After the suit was amended, the Respondent Nos.3 to 5 herein
filed the ApplicationExhibit40 in the said suit seeking a relief that the
Petitioner be asked to pay stamp duty on the amount of Rs.Twenty Five lacs
which was the consideration in the said sale deed dated 15/12/2008.
6 By the impugned order dated 17/09/2010 the said ApplicationExhibit40
was allowed, and the Plaintiff was asked that he should get the suit
property valued and pay half of advalorem court fees on Rs.Twenty Four lacs.
7 Heard learned counsel for the parties.
8 The learned counsel for the Petitioner Shri Jamdar submitted that
there is no requirement to value the suit as per Section 6(iv)(ha) of the
Bombay Court Fees Act, 1959 as the main substantive relief sought is by way of
prayer clause (A) to the effect that a declaration is sought that the sale deed
dated 31/10/2008 has been got executed from the Plaintiff by fraud, misrepresentation
and by breach of trust taking disadvantage of the old age and
illness of the Plaintiff and without consideration, and for a declaration that the
said so called sale deed is illegal and suffers from fraud is abinitio illegal and
not binding on the Plaintiff. The learned counsel would contend that the 2nd
prayer introduced by way of amendment is a consequential as if the 1st prayer
is granted, the said 2nd prayer has to necessarily follow. The learned counsel
would contend that the Bombay Court Fees Act is a fiscal statute and would
have to be strictly construed, and unless requisites for the application of
Section 6(iv)(ha) are available, the said provision would not apply. The
learned counsel would contend that in so far as 2nd prayer is concerned, apart
from it being a consequential prayer, the Plaintiff has also not sought that the
said sale deed executed by the Defendant Nos.1 and 2 in favour of the
Defendant Nos.3 to 5 be declared as void. The learned counsel would contend
that the Plaintiff in view of the declaratory in nature of the relief sought has
valued the said suit property, and if that be so, the said valuation given by the
Plaintiff should be accepted, and the reliance for the said purpose is placed on
the judgment of the Apex Court reported AIR 1987 SC 2085 in the matter of
Tara Devi V/s Thakur Radha Krishna Maharaj which concerned the suit for
declaration and consequential relief, however, the Section concerned there was
Section7(iv)(c) of the Court Fees Act, 1870. The Apex Court observed that the
Plaintiff is free to make his own estimation of the reliefs sought in the plaint
and such valuation both for the purpose of Courtfee and jurisdiction has to be
ordinarily accepted. The learned counsel also sought to place reliance on the
judgment of a learned Single Judge of this Court reported in 2005(3) Bom.
C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan Kumar
Ramnath Prasad Dwivedi & ors. The said Judgment concerns with both
Sections 6(iv)(j) and 6(iv)(ha). The suit was valued on the basis of declaration
sought that the agreement executed by the defendant No.1 in favour of
defendant No.3 is void and not binding, and also for perpetual injunction. An
objection was raised as regards valuation. The trial Court held that the suit has
to be valued as per the provisions of Section 6(iv)(ha). The learned Single
Judge held that looking to the relief sought in the suit, the provisions of
Section 6(iv)(ha) have been correctly applied by the trial Court. The said
judgment has been relied upon on the ground that since in the said case, there
was a declaration sought that the said agreement was void, the learned Judge
had confirmed the finding of the trial Court that provisions of Section 6(iv)(ha)
would apply. However, in the instant case, the learned counsel for the
Petitioner would contend that the relief sought in the present suit by prayer
clause A(1). The learned counsel for the Petitioner would contend that
accepting the said case of the Plaintiff that fiscal statute has to be construed
strictly, considering that the suit filed for avoidance of agreement or
declaration that the agreements are void, the Court fees would have to be paid
as per Section 6(iv)(ha). In the instant case, considering the prayer clause
A(1), the Plaintiff would be liable for payment of court fees as per the said
provisions.
The learned counsel for the Respondent also placed reliance on
the same judgment of a learned Single Judge of this Court reported in 2005(3)
Bom. C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan
Kumar Ramnath Prasad Dwivedi & ors. , wherein, according to the learned
counsel for the Respondent, declaration and consequential relief as in the
present case was sought, and in the context of the said relief sought, this Court
had held that Section 6(iv)(ha) was rightly invoked by the trial Court.
9 Having heard the learned counsel for the parties, I have given my
anxious consideration to the rival contentions of the parties. At the out set it
would be gainful to reproduce prayer clauses A and A(1).
Prayer clause A: It be declared that the sale deeds
created by Defendant Nos.1 and 2 dated 31/10/2008 in
respect of the property mentioned in Para 1 of the
Plaint have been created by fraud, misrepresentation
and breach of trust taking disadvantage of the old age
and illness of the Plaint and without consideration. It
be declared that the so called sale deeds bearing
Document Nos.5626/2008 and 5625/2008 are illegal,
created by fraud and are abinitio illegal, are not
binding on the Plaintiff.
Prayer clause A(1) : It be declared that the so called
sale deed dated 15/12/2008 executed by the Defendant
Nos.1 and 2 in favour of Defendant Nos.3 to 5 bearing
No.6476/2008 is not at all binding on the Plaintiff.
10 The said prayer clause A(1) has its basis in the averments made in
the plaint in Para 4 wherein it has been stated by the Plaintiff that the said suit
has been filed for a declaration that the so called sale deed executed by the
Defendant Nos.1 and 2 in favour of the Defendant Nos.3 to 5 by accepting
huge consideration is not binding on the Plaintiff.
11 It would also apposite to reproduce the relevant statutory
provisions of Section 6(iv)(ha) and Section 6(iv)(j) reproduced thus :
“(ha) for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for sale
or termination of contract for sale, of any moveable or
immoveable property is void one half of advalorem fee
leviable on the value of the property”
(j) for other declarations
In suits where declaration is sought, with or without
injunction or other consequential relief and the subject
matter in dispute is not susceptible of monetary
evaluation and which are not otherwise provided for by
this Act ad valorem fee payable, as if the amount or
value of the subject matter was one thousand rupees.
In all suits under clauses (a) to (j) the Plaintiff shall
state the amount at which the values the relief sought,
with the reasons for the valuation.”
As can be seen, Section 6(iv)(ha) reveals that in suits for
declaration that any sale, or contract for sale or termination of contract for
sale, of any moveable or immoveable property is void and stipulates the court
fees payable under the said provision.
Section 6(iv)(j) covers the suits where declaration is sought, with
or without injunction or other consequential relief and the subject matter in
dispute is not susceptible of monetary evaluation and which are not otherwise
provided for by the said Act.
12 Therefore in so far as prayer clause A is concerned, there can be
no dispute as regards valuation, as the Plaintiff has sought a declaration that it
be declared that the sale deeds dated 31/10/2008, which the Defendant Nos.1
and 2 got executed from the Plaintiff has been got so executed by playing fraud
on him, misrepresenting him, and by breach of trust. The learned counsel for
the Respondent/Defendant also fairly concedes that there can be no dispute as
regards valuation in so far as prayer clause A is concerned. The difficulty
arises in view of the dispute in so far as valuation of prayer clause A(1) which
has been introduced in the plaint by way of amendment on account of sale
deed dated 15/12/2008 executed by the Defendant Nos.1 and 2 in favour of
the Defendant Nos. 3 to 5. By the said prayer the Plaintiff has sought a
declaration that the said so called sale deed is not binding upon the Plaintiff. It
is the submission of the learned counsel for the Petitioner/Plaintiff that the said
relief is only a consequential relief to prayer clause A, and if prayer clause A is
granted, then automatically the said relief as contains in prayer clause A(1)
would have to be granted.
13 In the context of the relief sought by way of prayer clause A(1),
the background facts would have to be noted. It is the case of the Plaintiff that
the Defendant Nos.1 and 2 taking disadvantage of the old age of the plaintiff
and the fact that the Plaintiff was not in a position to look after the property,
got the sale deeds executed from him by misrepresenting him that in fact the
partition deeds are being executed as that was what told to the Plaintiff by the
Defendant Nos.1 and 2 earlier. It is, therefore, the case of the Plaintiff that
since by the sale deeds executed by the Defendant Nos.1 and 2 in favour of the
Defendant Nos. 3 to 5 covers the share of the Plaintiff in the common property.
If the prayer clause A is granted, necessary corollary of the same would be
granted by prayer clause A(1), and therefore, the said prayer clause A(1) being
consequential relief, the suit need not be valued under Section 6(iv)(ha) of the
Act. At the first blush the said submission seems worthy of acceptance,
however, on deeper scrutiny in the context of the added prayer clause A(1) it
cannot be accepted. It is required to be noted that even if the suit is allowed in
respect of share of the Plaintiff in the suit property and if the sale deeds dated
31/10/2008 are set aside, nevertheless the subsequent sale deed dated
15/12/2008 would still be required to be set aside, and therefore what the
Plaintiff in fact is seeking by prayer clause A(1) is in effect the setting aside of
the said sale deed dated 15/12/2008. The Plaintiff would therefore have to
value the suit in terms of prayer clause A(1) also and in so far as the said
prayer A(1) is concerned, Section 6(iv)(ha) would be attracted.
14 In the context of the dispute as regards the court fees
payable, it would be relevant to refer to the Judgment of a learned Single
Judge of this Court reported in 2005(3) Bom. C.R. 879 in the matter of Abdul
Gaffar Abdul Samad v/s. Niranjan Kumar Ramnath Prasad Dwivedi & ors.
(supra). In the said case, a dispute was as to whether Section 6(iv)(j) is
applicable or Section 6(iv)(ha) is applicable in the context of the reliefs sought
in the said suit. The suit in question in that case was filed for a declaration
that agreement executed by Defendant No.1 in favour of Defendant No.3 is
void and not binding, and for a perpetual injunction. That suit was valued as
per Section 6(iv)(j) on the ground that what was sought was only a declaration
as regards the agreement in question. An objection was taken by the
Defendants as regards improper valuation of the suit, and resultantly,
deficiency in court fees. The trial Court adjudicated upon the said objection
and held that the suit is covered by the provisions of Section 6(iv)(ha). The
said decision of the trial Court was challenged before this Court. This Court
held that the suit as filed is for avoidance of contract for sale and development
that the Defendant No.1 had entered into with the Defendant No.3, and since
the Defendant No.3 had agreed to pay consideration of Rs.2,50,000/ to
Defendant No.1 and in fact paid Rs.50,000/, the said suit would have to be
valued in terms of Section 6(iv)(ha). Paras 3 and 9 of the said judgment are
material and are reproduced herein under :
“3 The suit filed by the plaintiff is for declaration
that agreement for development dated 2831997
executed by defendant No.1 Niranjan in favour of
defendant No.3 Ramratan (Petitioner in W.P.No.
4505/2004) is void and not binding upon him. The
Plaintiff has also sought perpetual injunction
restraining them from interfering with or disturbing his
possession. The plaintiff has stated that he has entered
into an agreement of sale dated 7th March, 2003 for Rs.
1,30,000/ with defendant No.1. He states that he has
paid an amount of Rs.24,000/ towards part payment
and was given possession on 10th July, 2002. He states
that defendant No.1 permitted him to affix a gate and
accordingly after affixing gate he has also put his lock
on it. He states that the sale deed was to be executed in
the month of January, 2003. He further states that an
agreement of sale for Rs.1,30,000/ was executed on 7th
March, 2003 and on that date he has paid entire
amount of consideration to the owner and its receipt is
acknowledged by the owner. He states that thereafter
some differences cropped up between him and
defendant No.1 and therefore, defendant No.1
executed some documents in favour defendant No.3
and defendant No.3 is trying to take forcible possession
of the suit plot from him. It is stated by him that the
agreement for development executed by defendant No.
1 in favour of defendant No.3 is dated 20th March, 1997
and is not legally valid and also a void document. He
has stated that cause of action arose on 1032003
when defendant No.3 lodged false complaint against
him. The suit has been valued at Rs.1,000/ and Court
Fees of Rs.200/ has been paid upon it.
9 In the light of discussion above it is
apparent that the provisions of Bombay Court Fees Act
is contained in section 6(iv)(ha) are correctly invoked
by the learned trial Court in the facts. The said
provision as amended by Amendment Act of 1996
reads as under :
“(ha) for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for
sale or termination of contract for sale, of any
moveable or immoveable property is void (one half) of
advalorem fee leviable on the value of the property”
The suit of present plaintiff is for avoidance of
contract for sale and development. Perusal of Clause
Nos.14 and 15 of the said agreement dated 28th March,
1997 reveal that the defendant No.1 has given to
defendant No.3 prower to nominate buyers and has
agreed to execute sale deed in favour of such buyer.
The defendant No.1 has also agreed to execute and
registered sale deeds of proportionate undivided share
and interest in the land in favour of prospective buyers
of the tenements to be nominated by part No.2 and
defendant No.3 has agreed to pay consideration of Rs.
2,50,000/ to defendant No.1 and has in fact, paid Rs.
50,000/ on the date of that agreement to defendant
No.1. It is this, clear that the view taken by the trial
Court is illegal and no fault can be found with it.”
15 The submission of the learned counsel for the Petitioner that in the
said suit what was sought was the declaration of the agreement in question as
void which relief is covered by Section 6(iv)(ha) of the said Act. However, in
the instant case, the Petitioner is not seeking any such relief in the suit but only
claiming a declaration that the sale deed dated 15/12/2008 is not binding
upon him. In my view, the same would not make any difference as what in
effect the Plaintiff is seeking by way of prayer clause A(1) is the avoidance of
the said agreement dated 15/12/2008, and therefore, Section 6(iv)(ha) would
be attracted. As observed herein above, even if prayer clause A were to be
granted to the Plaintiff, nevertheless the agreement in question in favour of the
Defendant Nos.3 to 5 would have to be set aside, and therefore, the relief
sought by way of prayer clause A(1) would have to be valued in terms of
Section 6(iv)(ha).
16 In so far as the reliance placed by the Petitioner on the judgment
of the Apex Court reported in AIR 1987 SC 2085 in the matter of Tara Devi
V/s. Thakur Radha Krishna Maharaj wherein the Apex Court has held that in a
suit for declaration with consequential relief falling under S.7(iv)(c), the
plaintiff is free to make his own estimation of the reliefs sought in the plaint
and such valuation both for the purpose of Courtfee and jurisdiction has to be
ordinarily accepted. The ratio laid down in the said Judgment would be
applicable to a case covered by Section 6(iv)(j). However, considering the
relief sought by prayer clause A(1) in the instant matter, the said Judgment
would have no application.
17 It was sought to be contended by the learned counsel for the
Petitioner that the Defendant Nos.1 and 2 by playing a fraud and misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay advalorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in favour of the Defendant Nos.3 to 5. In my view, that cannot be a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the
reliefs sought in the suit. The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
18 The trial Court therefore has rightly by the impugned order held
that the Plaintiff would have to properly value his suit and shall pay half of the
ad valorem court fees on Rs.24,00,000/
19 Having considered the impugned order, in my view, there is no
error or any infirmity in the said impugned order for this Court to interfere in
its writ jurisdiction. The above Writ Petition is accordingly dismissed. Rule
discharged with parties to bear the respective costs.
[R.M.SAVANT, J]
01st December 2011
At this stage, the learned counsel appearing for the Petitioners
prays for continuation of the order dated 24/02/2011 for a period of four
weeks. Prayer granted. Adinterim order dated 24/02/2011 to continue for a
period four weeks from date.
[R.M.SAVANT, J]
Print Page
Petitioner that the Defendant Nos.1 and 2 by playing a fraud and misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay advalorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in favour of the Defendant Nos.3 to 5. In my view, that cannot be a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the
reliefs sought in the suit. The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.401 OF 2011
Shri Abdulsattar Gulabbhai Bagwan
versus
Shri Vaibhav Lxmangiri Gosawi,
CORAM : R M SAVANT, J.
Pronounced on : 01st December 2011
Citation: 2012(2) ALLMR310
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the Order dated 17/09/2010 passed by
the learned 6th Joint Civil Judge, Junior Division, Satara on the ApplicationExhibit40
filed by the Respondents herein in Regular Civil Suit No.19 of 2009
filed by the Petitioner.
3 The facts to be cited for adjudication of the above Petition are
stated thus :
The Petitioner is the original Plaintiff and the Respondents herein
are the original Defendants. The subject matter of the said suit is Gat No.850
bearing Old No.831 situated at Mauje Degaon, Taluka and District Satara
which land totally admeasuring 5 Hectares 74 Are. The said suit as original
filed was for a declaration that the sale deed dated 31/10/2008 was got
executed from the Plaintiff by playing fraud on him. It was the case of the
Plaintiff in the said suit that he along with the parents of the Defendants i.e.
Laxmangiri Ramgiri Gosawi and Kusum Laxmangiri Gosawi collectively
purchased the suit property by two registered sale deeds dated 2/8/1994 from
one Smt.Sarubai Bapurao Ghadge and Jijabai Sakharam Ghadge. It was further
his case that each of the said purchasers had 5 Anna and 4 Paisa share in the
suit property. It is further the case of the Petitioner that the said Laxmangiri
Ramgiri Gosawi died in August 2008. The present Defendants who are the
sons of the said Laxmangiri and Kusum Gosawi approached the Petitioner some
time in August 2008 and stated to him that for the development of the
property it is necessary that the property be subdivided according to the share
of respective parties. It is further the case of the Petitioner that the Defendants
further stated that since the Petitioner has difficulty on account of his advance
age, partition deed would be kept ready and that as and when they called him,
he should come only for affixing his signature before the SubRegistrar.
According to the Plaintiff, the Defendant Nos.1 and 2 called the Plaintiff on
31.10.2008 at 5.45 pm in the office of the SubRegistrar and on the pretext
that office is going to be closed soon within few minutes took his signature in
the late evening at about 6.20 pm on the purported partition deeds. It is the
case of the Plaintiff that he came to know that the said documents are in fact
two separate sale deeds respectively of his 1/2 share each executed in favour of
the Respondent Nos.1 and 2 respectively and the consideration of each alleged
sale deed is shown as Rs.32,500/ . It is in the said circumstances that the
Petitioner was constrained to file the said Regular Civil Suit No.19 of 2009 for
a declaration that the sale deeds dated 31/10/2008 were got executed from
the Petitioner by playing fraud. The substantive relief as sought in the said suit
was for a declaration that the sale deeds dated 31/10/2008 are not binding
upon the Petitioner as they are illegal without consideration and are therefore
not binding upon the Petitioner.
4 The Plaintiff after the filing of the suit came to known that the
Defendant Nos.1 and 2 have executed sale deed dated 15/12/2008 in favour of
the Respondent Nos.3, 4 and 5 herein by which the land admeasuring 3
Hectares 82.66 Are out of the said land was sold by them to the Respondent
Nos.3 and 4 for consideration of Rs.Twenty Four lacs. The Plaintiff thereafter
applied for amendment and amended the plaint by adding consequential
prayer that the sale deed dated 15/12/2008 executed by the Defendant Nos.1
and 2 in favour of the Defendant Nos.3 to 5 is not binding on the Plaintiff and
for impleadment of the Respondent Nos. 3 to 5 herein. The said application
was accordingly allowed, and resultantly the Respondent Nos.3 to 5 were
impleaded as the Defendants in the said suit and prayer clause A(1) came to be
added for a declaration that the so called sale deed executed by the
Respondent Nos.1 and 2 in favour of the Respondent Nos.3 to 5 herein dated
15/12/2008 is not at all binding on the Plaintiff.
5 After the suit was amended, the Respondent Nos.3 to 5 herein
filed the ApplicationExhibit40 in the said suit seeking a relief that the
Petitioner be asked to pay stamp duty on the amount of Rs.Twenty Five lacs
which was the consideration in the said sale deed dated 15/12/2008.
6 By the impugned order dated 17/09/2010 the said ApplicationExhibit40
was allowed, and the Plaintiff was asked that he should get the suit
property valued and pay half of advalorem court fees on Rs.Twenty Four lacs.
7 Heard learned counsel for the parties.
8 The learned counsel for the Petitioner Shri Jamdar submitted that
there is no requirement to value the suit as per Section 6(iv)(ha) of the
Bombay Court Fees Act, 1959 as the main substantive relief sought is by way of
prayer clause (A) to the effect that a declaration is sought that the sale deed
dated 31/10/2008 has been got executed from the Plaintiff by fraud, misrepresentation
and by breach of trust taking disadvantage of the old age and
illness of the Plaintiff and without consideration, and for a declaration that the
said so called sale deed is illegal and suffers from fraud is abinitio illegal and
not binding on the Plaintiff. The learned counsel would contend that the 2nd
prayer introduced by way of amendment is a consequential as if the 1st prayer
is granted, the said 2nd prayer has to necessarily follow. The learned counsel
would contend that the Bombay Court Fees Act is a fiscal statute and would
have to be strictly construed, and unless requisites for the application of
Section 6(iv)(ha) are available, the said provision would not apply. The
learned counsel would contend that in so far as 2nd prayer is concerned, apart
from it being a consequential prayer, the Plaintiff has also not sought that the
said sale deed executed by the Defendant Nos.1 and 2 in favour of the
Defendant Nos.3 to 5 be declared as void. The learned counsel would contend
that the Plaintiff in view of the declaratory in nature of the relief sought has
valued the said suit property, and if that be so, the said valuation given by the
Plaintiff should be accepted, and the reliance for the said purpose is placed on
the judgment of the Apex Court reported AIR 1987 SC 2085 in the matter of
Tara Devi V/s Thakur Radha Krishna Maharaj which concerned the suit for
declaration and consequential relief, however, the Section concerned there was
Section7(iv)(c) of the Court Fees Act, 1870. The Apex Court observed that the
Plaintiff is free to make his own estimation of the reliefs sought in the plaint
and such valuation both for the purpose of Courtfee and jurisdiction has to be
ordinarily accepted. The learned counsel also sought to place reliance on the
judgment of a learned Single Judge of this Court reported in 2005(3) Bom.
C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan Kumar
Ramnath Prasad Dwivedi & ors. The said Judgment concerns with both
Sections 6(iv)(j) and 6(iv)(ha). The suit was valued on the basis of declaration
sought that the agreement executed by the defendant No.1 in favour of
defendant No.3 is void and not binding, and also for perpetual injunction. An
objection was raised as regards valuation. The trial Court held that the suit has
to be valued as per the provisions of Section 6(iv)(ha). The learned Single
Judge held that looking to the relief sought in the suit, the provisions of
Section 6(iv)(ha) have been correctly applied by the trial Court. The said
judgment has been relied upon on the ground that since in the said case, there
was a declaration sought that the said agreement was void, the learned Judge
had confirmed the finding of the trial Court that provisions of Section 6(iv)(ha)
would apply. However, in the instant case, the learned counsel for the
Petitioner would contend that the relief sought in the present suit by prayer
clause A(1). The learned counsel for the Petitioner would contend that
accepting the said case of the Plaintiff that fiscal statute has to be construed
strictly, considering that the suit filed for avoidance of agreement or
declaration that the agreements are void, the Court fees would have to be paid
as per Section 6(iv)(ha). In the instant case, considering the prayer clause
A(1), the Plaintiff would be liable for payment of court fees as per the said
provisions.
The learned counsel for the Respondent also placed reliance on
the same judgment of a learned Single Judge of this Court reported in 2005(3)
Bom. C.R. 879 in the matter of Abdul Gaffar Abdul Samad v/s. Niranjan
Kumar Ramnath Prasad Dwivedi & ors. , wherein, according to the learned
counsel for the Respondent, declaration and consequential relief as in the
present case was sought, and in the context of the said relief sought, this Court
had held that Section 6(iv)(ha) was rightly invoked by the trial Court.
9 Having heard the learned counsel for the parties, I have given my
anxious consideration to the rival contentions of the parties. At the out set it
would be gainful to reproduce prayer clauses A and A(1).
Prayer clause A: It be declared that the sale deeds
created by Defendant Nos.1 and 2 dated 31/10/2008 in
respect of the property mentioned in Para 1 of the
Plaint have been created by fraud, misrepresentation
and breach of trust taking disadvantage of the old age
and illness of the Plaint and without consideration. It
be declared that the so called sale deeds bearing
Document Nos.5626/2008 and 5625/2008 are illegal,
created by fraud and are abinitio illegal, are not
binding on the Plaintiff.
Prayer clause A(1) : It be declared that the so called
sale deed dated 15/12/2008 executed by the Defendant
Nos.1 and 2 in favour of Defendant Nos.3 to 5 bearing
No.6476/2008 is not at all binding on the Plaintiff.
10 The said prayer clause A(1) has its basis in the averments made in
the plaint in Para 4 wherein it has been stated by the Plaintiff that the said suit
has been filed for a declaration that the so called sale deed executed by the
Defendant Nos.1 and 2 in favour of the Defendant Nos.3 to 5 by accepting
huge consideration is not binding on the Plaintiff.
11 It would also apposite to reproduce the relevant statutory
provisions of Section 6(iv)(ha) and Section 6(iv)(j) reproduced thus :
“(ha) for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for sale
or termination of contract for sale, of any moveable or
immoveable property is void one half of advalorem fee
leviable on the value of the property”
(j) for other declarations
In suits where declaration is sought, with or without
injunction or other consequential relief and the subject
matter in dispute is not susceptible of monetary
evaluation and which are not otherwise provided for by
this Act ad valorem fee payable, as if the amount or
value of the subject matter was one thousand rupees.
In all suits under clauses (a) to (j) the Plaintiff shall
state the amount at which the values the relief sought,
with the reasons for the valuation.”
As can be seen, Section 6(iv)(ha) reveals that in suits for
declaration that any sale, or contract for sale or termination of contract for
sale, of any moveable or immoveable property is void and stipulates the court
fees payable under the said provision.
Section 6(iv)(j) covers the suits where declaration is sought, with
or without injunction or other consequential relief and the subject matter in
dispute is not susceptible of monetary evaluation and which are not otherwise
provided for by the said Act.
12 Therefore in so far as prayer clause A is concerned, there can be
no dispute as regards valuation, as the Plaintiff has sought a declaration that it
be declared that the sale deeds dated 31/10/2008, which the Defendant Nos.1
and 2 got executed from the Plaintiff has been got so executed by playing fraud
on him, misrepresenting him, and by breach of trust. The learned counsel for
the Respondent/Defendant also fairly concedes that there can be no dispute as
regards valuation in so far as prayer clause A is concerned. The difficulty
arises in view of the dispute in so far as valuation of prayer clause A(1) which
has been introduced in the plaint by way of amendment on account of sale
deed dated 15/12/2008 executed by the Defendant Nos.1 and 2 in favour of
the Defendant Nos. 3 to 5. By the said prayer the Plaintiff has sought a
declaration that the said so called sale deed is not binding upon the Plaintiff. It
is the submission of the learned counsel for the Petitioner/Plaintiff that the said
relief is only a consequential relief to prayer clause A, and if prayer clause A is
granted, then automatically the said relief as contains in prayer clause A(1)
would have to be granted.
13 In the context of the relief sought by way of prayer clause A(1),
the background facts would have to be noted. It is the case of the Plaintiff that
the Defendant Nos.1 and 2 taking disadvantage of the old age of the plaintiff
and the fact that the Plaintiff was not in a position to look after the property,
got the sale deeds executed from him by misrepresenting him that in fact the
partition deeds are being executed as that was what told to the Plaintiff by the
Defendant Nos.1 and 2 earlier. It is, therefore, the case of the Plaintiff that
since by the sale deeds executed by the Defendant Nos.1 and 2 in favour of the
Defendant Nos. 3 to 5 covers the share of the Plaintiff in the common property.
If the prayer clause A is granted, necessary corollary of the same would be
granted by prayer clause A(1), and therefore, the said prayer clause A(1) being
consequential relief, the suit need not be valued under Section 6(iv)(ha) of the
Act. At the first blush the said submission seems worthy of acceptance,
however, on deeper scrutiny in the context of the added prayer clause A(1) it
cannot be accepted. It is required to be noted that even if the suit is allowed in
respect of share of the Plaintiff in the suit property and if the sale deeds dated
31/10/2008 are set aside, nevertheless the subsequent sale deed dated
15/12/2008 would still be required to be set aside, and therefore what the
Plaintiff in fact is seeking by prayer clause A(1) is in effect the setting aside of
the said sale deed dated 15/12/2008. The Plaintiff would therefore have to
value the suit in terms of prayer clause A(1) also and in so far as the said
prayer A(1) is concerned, Section 6(iv)(ha) would be attracted.
14 In the context of the dispute as regards the court fees
payable, it would be relevant to refer to the Judgment of a learned Single
Judge of this Court reported in 2005(3) Bom. C.R. 879 in the matter of Abdul
Gaffar Abdul Samad v/s. Niranjan Kumar Ramnath Prasad Dwivedi & ors.
(supra). In the said case, a dispute was as to whether Section 6(iv)(j) is
applicable or Section 6(iv)(ha) is applicable in the context of the reliefs sought
in the said suit. The suit in question in that case was filed for a declaration
that agreement executed by Defendant No.1 in favour of Defendant No.3 is
void and not binding, and for a perpetual injunction. That suit was valued as
per Section 6(iv)(j) on the ground that what was sought was only a declaration
as regards the agreement in question. An objection was taken by the
Defendants as regards improper valuation of the suit, and resultantly,
deficiency in court fees. The trial Court adjudicated upon the said objection
and held that the suit is covered by the provisions of Section 6(iv)(ha). The
said decision of the trial Court was challenged before this Court. This Court
held that the suit as filed is for avoidance of contract for sale and development
that the Defendant No.1 had entered into with the Defendant No.3, and since
the Defendant No.3 had agreed to pay consideration of Rs.2,50,000/ to
Defendant No.1 and in fact paid Rs.50,000/, the said suit would have to be
valued in terms of Section 6(iv)(ha). Paras 3 and 9 of the said judgment are
material and are reproduced herein under :
“3 The suit filed by the plaintiff is for declaration
that agreement for development dated 2831997
executed by defendant No.1 Niranjan in favour of
defendant No.3 Ramratan (Petitioner in W.P.No.
4505/2004) is void and not binding upon him. The
Plaintiff has also sought perpetual injunction
restraining them from interfering with or disturbing his
possession. The plaintiff has stated that he has entered
into an agreement of sale dated 7th March, 2003 for Rs.
1,30,000/ with defendant No.1. He states that he has
paid an amount of Rs.24,000/ towards part payment
and was given possession on 10th July, 2002. He states
that defendant No.1 permitted him to affix a gate and
accordingly after affixing gate he has also put his lock
on it. He states that the sale deed was to be executed in
the month of January, 2003. He further states that an
agreement of sale for Rs.1,30,000/ was executed on 7th
March, 2003 and on that date he has paid entire
amount of consideration to the owner and its receipt is
acknowledged by the owner. He states that thereafter
some differences cropped up between him and
defendant No.1 and therefore, defendant No.1
executed some documents in favour defendant No.3
and defendant No.3 is trying to take forcible possession
of the suit plot from him. It is stated by him that the
agreement for development executed by defendant No.
1 in favour of defendant No.3 is dated 20th March, 1997
and is not legally valid and also a void document. He
has stated that cause of action arose on 1032003
when defendant No.3 lodged false complaint against
him. The suit has been valued at Rs.1,000/ and Court
Fees of Rs.200/ has been paid upon it.
9 In the light of discussion above it is
apparent that the provisions of Bombay Court Fees Act
is contained in section 6(iv)(ha) are correctly invoked
by the learned trial Court in the facts. The said
provision as amended by Amendment Act of 1996
reads as under :
“(ha) for avoidance of sale, contract for sale, etc.
In suits for declaration that any sale, or contract for
sale or termination of contract for sale, of any
moveable or immoveable property is void (one half) of
advalorem fee leviable on the value of the property”
The suit of present plaintiff is for avoidance of
contract for sale and development. Perusal of Clause
Nos.14 and 15 of the said agreement dated 28th March,
1997 reveal that the defendant No.1 has given to
defendant No.3 prower to nominate buyers and has
agreed to execute sale deed in favour of such buyer.
The defendant No.1 has also agreed to execute and
registered sale deeds of proportionate undivided share
and interest in the land in favour of prospective buyers
of the tenements to be nominated by part No.2 and
defendant No.3 has agreed to pay consideration of Rs.
2,50,000/ to defendant No.1 and has in fact, paid Rs.
50,000/ on the date of that agreement to defendant
No.1. It is this, clear that the view taken by the trial
Court is illegal and no fault can be found with it.”
15 The submission of the learned counsel for the Petitioner that in the
said suit what was sought was the declaration of the agreement in question as
void which relief is covered by Section 6(iv)(ha) of the said Act. However, in
the instant case, the Petitioner is not seeking any such relief in the suit but only
claiming a declaration that the sale deed dated 15/12/2008 is not binding
upon him. In my view, the same would not make any difference as what in
effect the Plaintiff is seeking by way of prayer clause A(1) is the avoidance of
the said agreement dated 15/12/2008, and therefore, Section 6(iv)(ha) would
be attracted. As observed herein above, even if prayer clause A were to be
granted to the Plaintiff, nevertheless the agreement in question in favour of the
Defendant Nos.3 to 5 would have to be set aside, and therefore, the relief
sought by way of prayer clause A(1) would have to be valued in terms of
Section 6(iv)(ha).
16 In so far as the reliance placed by the Petitioner on the judgment
of the Apex Court reported in AIR 1987 SC 2085 in the matter of Tara Devi
V/s. Thakur Radha Krishna Maharaj wherein the Apex Court has held that in a
suit for declaration with consequential relief falling under S.7(iv)(c), the
plaintiff is free to make his own estimation of the reliefs sought in the plaint
and such valuation both for the purpose of Courtfee and jurisdiction has to be
ordinarily accepted. The ratio laid down in the said Judgment would be
applicable to a case covered by Section 6(iv)(j). However, considering the
relief sought by prayer clause A(1) in the instant matter, the said Judgment
would have no application.
17 It was sought to be contended by the learned counsel for the
Petitioner that the Defendant Nos.1 and 2 by playing a fraud and misrepresenting
the Plaintiff have got the agreement executed from them, and
therefore, it would be unjust if the Plaintiff would have to pay advalorem
court fees on the subsequent agreement executed by the Defendant Nos.1 and
2 in favour of the Defendant Nos.3 to 5. In my view, that cannot be a
consideration for deciding as to whether the suit in question is to be valued in
terms of Section 6(iv)(ha) or 6(iv)(j). The same would have to be considered,
as contended by the learned counsel for the Defendants, in the context of the
reliefs sought in the suit. The Plaintiff, as can be seen in effect is seeking
avoidance of the sale deed executed by the Defendant Nos. 1 and 2 in favour of
the Defendant Nos.3 to 5, and therefore, the Plaintiff would have to value the
said suit in terms of Section 6(iv)(ha) and not in terms of clause 6(iv)(j) as has
been done by him.
18 The trial Court therefore has rightly by the impugned order held
that the Plaintiff would have to properly value his suit and shall pay half of the
ad valorem court fees on Rs.24,00,000/
19 Having considered the impugned order, in my view, there is no
error or any infirmity in the said impugned order for this Court to interfere in
its writ jurisdiction. The above Writ Petition is accordingly dismissed. Rule
discharged with parties to bear the respective costs.
[R.M.SAVANT, J]
01st December 2011
At this stage, the learned counsel appearing for the Petitioners
prays for continuation of the order dated 24/02/2011 for a period of four
weeks. Prayer granted. Adinterim order dated 24/02/2011 to continue for a
period four weeks from date.
[R.M.SAVANT, J]
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