IN THE HIGH COURT OF KARNATAKA AT BANGALORE PRESENT THE HON BLE MR.JUSTICE N.K. PATIL AND THE HON BLE MRS.JUSTICE RATHNAKALA

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12 TH DAY OF NOVEMBER 2014 PRESENT THE HON BLE MR.JUSTICE N.K. PATIL AND THE HON BLE MRS.JUSTICE RATHNAKALA REGULAR FIRST APPEAL NO.1038 OF 2013 BETWEEN: 1. SMT. D.R.PREMALEELA, AGED ABOUT 73 YEARS; 2. SMT. D.R.SATHYALEELA, AGED ABOUT 73 YEARS; SINCE DECEASED BY LRS THE APPELLANTS NOS.1 AND 3 3. SMT. D.R.SUNDARALAKSHMI, AGED ABOUT 70 YEARS; ALL DAUGHTERS OF LATE SRI D.RAMAIAH SETTY, AND ALL RESIDING AT NO.255, III MAIN, CHAMARAJAPET, BANGALORE APPELLANTS (BY SRI K.SURESH, ADV.)

2 2 AND: 1. SRI D.R.HANUMANTHA RAJU, S/O. LATE SRI D.RAMAIAH SETTY, AGED ABOUT 81 YEARS, RESIDING AT NO.255, III MAIN, CHAMARAJAPET, BANGALORE SRI P.R.SRINIVASA BABU, AGED ABOUT 59 YEARS; 3. SRI P.R.SHANTHA KUMARI, AGED ABOUT 57 YEARS; 4. SRI P.R.VISWANATH, AGED ABOUT 54 YEARS; 5. SMT P.R.SHASHIKALA, AGED ABOUT 53 YEARS; 6. SRI P.R.PRAKASH, AGED ABOUT 50 YEARS; 7. SRI P.R.SHEKAR, AGED ABOUT 49 YEARS; 8. SMT. P.R.USHA, AGED ABOUT 53 YEARS; RESPONDENTS NOS.2 TO 8 ARE CHILDREN OF LATE SMT. P.R.SAROJAMMA, RESIDING AT NO.254, III MAIN, CHAMARAJAPET, BANGALORE SRI D.H.PRAKASH, S/O SRI D.H.HANUMANTHA RAJU, AGED ABOUT 53 YEARS, AT NO.255, III MAIN, CHAMARAJAPET, BANGALORE SRI D.H.MANOHAR, S/O SRI D.H.HANUMANTHA RAJU,

3 3 AGED ABOUT 49 YEARS, AT NO.255, III MAIN, CHAMARAJAPET, BANGALORE (BY SRI N.P.KALLESH GOWDA, ADV. FOR R-1; NOTICE TO R2 TO R8 IS D/W V/O DTD:23/04/2014; SRI M.R.VIJAYARAGHAVAN, ADV. FOR R9 & R10)...RESPONDENTS THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED PASSED IN O.S.NO.7731/2009 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL JUDGE, BANGALORE, REJECTING THE PLAINT U/ORDER 7 RULE 11(B) AND (C) CPC. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30/10/2014 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, RATHNAKALA J., DELIVERED THE FOLLOWING:- J U D G M E N T This appeal is filed by the aggrieved plaintiffs of O.S.No.7731/2009 on the file of the XXV Additional City Civil Judge, Bangalore, dated in rejecting their plaint under Order VII Rule 11(b) and (c) of the Code of Civil Procedure, for non-payment of the court fee. 2. Facts relevant for adjudication of this appeal is: The plaintiffs being the three daughters of one deceased D.Ramaiah Setty, filed a suit for partition

4 4 against their brother (First defendant) niece & nephews (defendants-2 to 10) for partition of their share in the suit schedule property. They are spinsters. 3. The suit was contested by the defendants. During the pendency of the suit, one of the plaintiffs expired and the defendants-2 to 8 did not appear and defendants-9 and 10, who are none other than the sons of first defendant adopted the written statement filed by the first defendant. The plaintiffs filed an application/i.a.no.17 seeking amendment of the plaint by adding the prayer to the effect declaration that the gift deeds executed by the first defendant in favour of defendant Nos.9 and 10 is null and void and not binding on the plaintiffs. Said application was allowed; plaint was amended; amended plaint was filed and additional issues were framed. Plaintiffs were called upon to file valuation slip in respect of C schedule property (property gifted under the Registered deed) and to pay

5 5 additional court fee. Though the plaintiffs filed fresh valuation slip, they contended that they were not required to pay additional court fee. 4. On hearing both parties, the learned Trial Judge on called upon the plaintiffs to give valuation of the C schedule property excluding the business investment, capital and to pay court fee under Section 38 of the Karnataka Court-Fees and Suits Valuation Act, 1958 (hereinafter referred to as the Act for short). The plaintiffs filed modified valuation slip contending that the value of the C schedule property and the capital cannot be bifurcated and no additional court fee was required to be paid. On , the court ordered to pay court fees on the basis of value of C schedule property at Rs.36,50,000/- under Section 38 of the Act. 5. Though the plaintiffs made submission that they will challenge the order dated , neither

6 6 did they do so nor they complied with the order dated In the backdrop of the above, by invoking Order VII Rule 11 (b) and (c) of the Code of Civil Procedure, the trial court has rejected the plaint. 6. Sri.K.Suresh, learned Counsel appearing for the appellants submits that, the deed in question was a gift deed and the value of the property is not mentioned in the said gift deed. Hence, they were not bound to pay additional court fee on the additional relief sought. The appellants are spinsters having no sufficient income to maintain themselves. Unable to pay the court fee, they had filed an application to delete the relief of declaration. Instead of allowing the said application, without considering the case on its merits, the court below has rejected the plaint once for all, which has resulted in miscarriage of justice. By the order of the Hon ble High Court, O.S.No.7731/2009 was clubbed with O.S.No.4165/1998 filed by their brother/first

7 7 defendant D.R.Hanumantha Raju, seeking possession of B schedule property in the said case. The court could not have rejected the plaint, against the order of this Court. Both suits ought to have been disposed of together. After rejecting the plaint in O.S.No.7731/2009, the trial court heard the argument of O.S.No.4165/1998 and decreed the suit O.S.No.4165/1998, which is challenged by them in R.F.A.No.1448/2013. In the circumstances, the judgment passed in both the suits are liable to be quashed and the matter be remanded to the trial court with a direction to dispose of both cases together in accordance with law. 7. It is the submission on behalf of the contesting respondents that, the appellants by their own omission were responsible for delinking O.S.No.4165/1998 and O.S.No.7731/2009. The suit filed by D.R.Hanumantha Raju for recovery of the property i.e., two rooms ( B

8 8 schedule property), which form a part of his residential house/plaint A schedule property, is of It was after thought on the part of the appellants herein in filing O.S.No.7731/2009 for partition in the year That apart having sought declaration in respect of the registered gift deed as not binding on them, they were obliged to pay court fee on the market value of the subject matter of the gift deed, which comes to Rs.36,50,000/-. If they were aggrieved by the order of the trial court dated whereby they were called upon to file valuation slip in respect of C schedule property excluding the business investment, capital and to pay court fee under Section 38 of the Act, they should have challenged the order before this Court. Instead, they filed an application for amendment seeking for deletion of the prayer in respect of C schedule property, which is nothing but abuse of the procedure of the court. Rightly the trial court has rejected the plaint under Order VII Rule 11(b) & (c) of the Code of Civil

9 9 Procedure. Because of the lapses on the part of the plaintiffs, the plaint in O.S.No.7731/2009 is rejected. Without any other option, the trial court heard O.S.No.4165/1998 and the appellants herein addressed their arguments on merits of the case and on appreciation of the evidence and relevant matters, the trial court has rightly decreed the suit. Since both suits are now delinked, without hearing R.F.A.No.1448/2013 on its merits, the judgment of the trial court in O.S.No.4165/1998 cannot be set aside and cannot be remanded. The order passed by the trial court in O.S.No.7731/2009 is correct and appropriate and it has been passed after giving adequate opportunity to the plaintiffs to pay court fee. Even if the court were to come to the conclusion that the plaintiffs are not required to pay court fee on C schedule property, only R.F.A.No.1038/2013 may be remanded pending consideration of R.F.A.No.1448/2013 on merits.

10 10 However, O.S.No.7731/2009 is a comprehensive suit and the same needs to be disposed of independently. 8. After hearing both parties and after going through the impugned order, the sole point that arises for our consideration is: Whether the court below erred in calling upon the plaintiffs to pay court fee on the market value of the C schedule property, which is the subject matter of the gift deed and thereafter rejecting the plaint? 9. Admittedly, the market value of the property which was gifted by way of registered gift deeds, is not mentioned in the gift deed. Necessarily, at the time of registration, fee must have been paid on the basis of the guidance value of the Sub-Registrar. The law on the point is covered by the judgment of this Court in Smt.Anandamma and others vs- Sharada Alias Munithayamma reported in 2011(2) Kar.L.J. 1. The question before the court was, whether the plaintiff was

11 11 required to pay the Court fees on the market value of the property which was the subject matter of the sale deeds which was challenged in the suit and cancellation of which was being sought for?. 10. The allegation in the plaint was, defendant had by deceit put up construction over the property and had let out tenements to other defendants, who are parties to the suit. But the plaintiff had chosen to treat the suit property as agricultural land when it was bought as such. This Court held as under: Section 38 of the 1958 Act specifically provides that in a suit for cancellation of a document which operates to create a title in the immovable property and lays down that the fee shall be computed on the value of the property, as indicated in the document. And by way of explanation, it is expressed that insofar as a suit for cancellation of a decree and possession of any property is concerned, the fee shall be computed as in a suit for possession of such property, thereby by

12 12 implication, a suit for cancellation of a document which is conjointly referred to along with a suit for cancellation of a decree in subsection (1) is sought to be excluded. This is the apparent indication from a plain reading of the section. Under Section 24, in a suit for declaration and possession of immovable property, it is certainly the market value of the property, on which the Court fee is required to be paid. Therefore, the answer would be that in a suit for cancellation of the sale deeds, even though a consequential relief of possession is also sought, it is only under Section 38(1), that the Court fee payable would have to be computed in view of Explanation 2 to the section, excluding a suit for cancellation of a document, as being a suit for possession of such property, while specifying that a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property.

13 A careful reading of Section 38 of the Act also lead us to the same stand. The Section reads thus: 38. suits for cancellation of decrees, etc.: (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be,- if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed; if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property. (2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff s share in any such

14 14 property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less. 12. In the present case, since the value of the property is not mentioned in the gift deeds, appellants are not at fault in contending that in view of Section 38(1) of the Act, they are not liable to pay court fee. The impugned order of non-suiting the plaintiffs for not paying court fee on the market value of the registered gift deed sought to be declared void, was incorrect. The case ought to have been disposed of on its merits in accordance with the directions issued by this Court in Writ Petition No.2175/2011 i.e., to dispose them of together. Accordingly, the appeal is allowed. The impugned order dated in O.S.No.7731/2009 passed by the XXV Additional City Civil Judge, Bangalore, is herby set aside. The matter is remanded to the trial court for disposal in accordance with law along with

15 15 O.S.No.4165/1998 after giving opportunity to both parties. Without waiting for notice from the court, both parties shall appear before the trial court on and address their arguments. The outer limit for disposal of the case shall not be beyond three months from the date of appearance of the parties. Office is directed to send the L.C.R. forthwith. Sd/- JUDGE Sd/- JUDGE KNM/-