So far as the issue of improper valuation and inadequate
payment of court fee is concerned the objection of counsel for
petitioners is on the plea that the suit should have been valued
on the basis of gift deed under challenge and accordingly the
advalorem court fee should have been paid.
12/ A perusal of the plaint reveals that the plaintiffs are
claiming the suit property to be joint family property and alleged
gift deed has been executed by defendant no. 2 in favour of
defendants no. 3 & 4. Plaintiffs are not party to the gift deed
and the prayer in the suit is to declare the gift deed as null and
void and not binding on the plaintiffs.
13/ The record further reflects that plaintiffs have valued the
suit as per their share in the suit property and have accordingly
paid the court fee thereon and in respect of declaration relating
to gift deed the fix court fee has been paid and separate court
fee on the relief of permanent injunction has been paid.
14/ In view of the judgment of the Supreme court in the
matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh
& others reported in 2010 AIR SCW 3308 when the plaintiff is
not party to the gift deed and is claiming partition and injunction
then he is not liable to pay the advalorem court fee on the said
relief. Trial court has rightly examined the legal position in this
regard while holding that the advalorem court fee as per value
of the gift deed is not payable.
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Civil Revision No. 136/2011
Vishal Vs. Hukumchand (dead) through his L.Rs.& others
O R D E R
(Passed on 22/4/2019 )
Citation: AIR 2019(NOC) 736 MP
This order will govern disposal of CR No. 136/11 and
Misc. Appeal No. 3650/2010.
2/ By the revision petition under Section 115 of CPC the
defendants no. 1 & 2 in the suit have challenged the order of
trial court dated 25/4/2011 deciding the preliminary issues no.
10 to 13 relating to maintainability of the suit in view of
provisions of Benami Transactions (Prohibition) Act 1988,
valuation, court fee and maintainability of the suit in view of
Section 34 of Specific Relief Act.
3/ By the Misc. Appeal under Section 104 read with Order
43 Rule 1(r) of CPC the plaintiffs have challenged the order of
trial court dated 15th November 2010 rejecting the application
for temporary injunction.
4/ Respondents no. 1 to 5 (plaintiffs) have filed the suit
before the trial court and after framing of the issues trial court
2
has decided the aforesaid issues in favour of plaintiffs and
against the present petitioners.
5/ Learned counsel for petitioners submits that trial court has
committed an error in holding the suit to be maintainable
without appreciating the provisions of Benami Transactions
(Prohibition) Act. He further submits that plaintiffs are not in
possession of the suit property therefore, the suit merely for
declaration is not maintainable in view of the bar under section
34 of Specific Relief Act and that since the plaintiffs are
challenging the gift deed, therefore, they are required to value
the suit accordingly and pay the advalorem court fee thereon.
6/ As against this learned counsel for respondents submits
that trial court has not committed any error in holding the suit to
be maintainable after examining the provisions of Benami
Transactions (Prohibition) Act as also section 34 of Specific
Relief Act and that proper valuation of suit has been done and
no error has been committed in payment of court fee.
7/ Having heard the learned counsel for parties and on
perusal of the record it is noticed that parties are members of
same family and suit has been filed by respondents no.1 to
5/plaintiffs with the plea that their ancestor Motilal had
purchased the suit property in the name of his wife Smt.
Sohanbai who was wholly dependent on him having no source
of income to maintain herself. It was further pleaded that
Sohanbai alongwith plaintiffs was residing in the suit property
and when plaintiffs had purchased the separate house, Smt.
Sohanbai had continued to live alone in the suit property. In the
suit, plaintiffs have claimed that they have share in the suit
property and accordingly prayed for partition and also declaring
the gift deed executed by defendant no. 2 in favour of
defendants no. 3 and 4 (petitioners herein) as null and void and
claiming relief of permanent injunction restraining the parties
from changing the nature of or alienating the suit property.
8/ So far as the issue of maintainability of the suit in view of
provision contained under Benami Transactions (Prohibition)
Act is concerned, in terms of section 3(2) of Act, the prohibition
is not applicable in respect of purchase of property by person in
the name of wife or unmarried daughter, however, he is
required to prove that the said property was purchased for their
benefit in order to succeed.
9/ Supreme court in the matter of Nand Kishore Mehra Vs.
Sushila Mehra reported in AIR 1995 SC 2145 in this regard
has held that:
“7.Therefore, our answer to the question under
consideration is that neither the filing of a suit nor
taking of a defence in respect of either the present or
past benami transaction involving the purchase of
property by a person in the name of his wife or
unmarried daughter is prohibited under sub-sections
(1) and (2) of Section 4 of the Act.”
10/ In view of this, the arguments advanced by counsel for
petitioners in respect of retrospective applicability of Act is of no
consequence. Hence the trial court has not committed any error
in holding that the suit is maintainable.
11/ So far as the issue of improper valuation and inadequate
payment of court fee is concerned the objection of counsel for
petitioners is on the plea that the suit should have been valued
on the basis of gift deed under challenge and accordingly the
advalorem court fee should have been paid.
12/ A perusal of the plaint reveals that the plaintiffs are
claiming the suit property to be joint family property and alleged
gift deed has been executed by defendant no. 2 in favour of
defendants no. 3 & 4. Plaintiffs are not party to the gift deed
and the prayer in the suit is to declare the gift deed as null and
void and not binding on the plaintiffs.
13/ The record further reflects that plaintiffs have valued the
suit as per their share in the suit property and have accordingly
paid the court fee thereon and in respect of declaration relating
to gift deed the fix court fee has been paid and separate court
fee on the relief of permanent injunction has been paid.
14/ In view of the judgment of the Supreme court in the
matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh
& others reported in 2010 AIR SCW 3308 when the plaintiff is
not party to the gift deed and is claiming partition and injunction
then he is not liable to pay the advalorem court fee on the said
relief. Trial court has rightly examined the legal position in this
regard while holding that the advalorem court fee as per value
of the gift deed is not payable.
15/ So far as the issue of maintainability of the suit for
declaration in terms of Section 34 of Specific Relief Act is
concerned, the trial court has rightly noted that the suit filed by
plaintiffs is as against co-owner for partition, hence the plaintiffs
in possession through co-owner can maintain the suit for
declaration and partition and he is not required to separately
claim possession under section 34 of Specific Relief Act. In this
regard the trial court has rightly relied upon the judgment of the
Supreme court in the matter of Jai Singh and others Vs.
Gurmej Singh reported in (2009) 15 SCC 747.
16/ So far as the argument advanced by counsel for
petitioners based upon plea taken in their written statement that
plaintiffs are not in possession of the suit property, the law is
well settled that while deciding the issue of valuation and court
fee, only the plaint averments are required to be seen as a
whole. (See:Neelavathi and others Vs. N. Natarajan and
others reported in AIR 1980 SC 691; Haricharan and others
Vs. M. Ojha and others reported in 2001 (2) MPLJ 152;
Dharamraj Singh Chhotelal Singh Chouhan Vs. Vaidya Nath
Prasad Khare & others reported in 2002(1) MPLJ 458.)
17/ The impugned order of trial court reveals that trial court
has duly and rightly examined the issue relating to valuation
and court fee and has committed no error in answering the
preliminary issues no. 13 & 14 in favour of plaintiffs.
18/ Hence I am of the opinion that while passing the
impugned order the trial court has not committed any illegality
nor it has committed any error in exercise of the jurisdiction.
Therefore, in exercise of limited revisional power under section
115 CPC no case for interference in the impugned order of trial
court is made out. Revision petition is accordingly dismissed.
19/ So far as Misc. Appeal is concerned, learned counsel for
appellants instead of arguing the appeal had made a
submission that in case if the revision petition is dismissed he
will not be pressing the Misc. Appeal.
20/ Hence in view of the order passed in revision petition, as
above, Misc. appeal is dismissed as not pressed.
C.c. as per rules.
(Prakash Shrivastava)
Judge
BDJ
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