AGRA DIOCESAN TRUST ASSOCIATION versus ANIL DAVID AND ORS.

[2020] 3 S.C.R. 943

AGRA DIOCESAN TRUST ASSOCIATION

ANIL DAVID AND ORS.

(Civil Appeal No. 1722 of 2020)

FEBRUARY 19, 2020

[ARUN MISHRA, M. R. SHAHAND S. RAVINDRA BHAT, JJ.]

Uttar Pradesh Court Fees Act, 1870: s.7(iv-A) – Suits filedby plaintiff- appellant for cancellation of sale deed – Contested bydefendants on the ground that although the relief for cancellationof the sale deed in question was sought, but the appellant hadimproperly valued the suit and paid insufficient court fee – Trialcourt recorded the findings against the appellant and held that thatthe suits were undervalued and court fee paid by the plaintiff wasinsufficient – Aggrieved appellant filed writ petition contending thatthe appellant was not party to the sale deed and, therefore, trialcourt committed an error in deciding the issues against him and indirecting him to pay ad valorem court fee on the market value of theland and that as the land in dispute was agricultural land, theappellant was obliged to pay the court fee on the revenue payableas fixed by the State Government in view of s.7(iv-A) of the Act –High Court by impugned order accepted the respondent’scontentions that the circle rate fixed by the collector to charge stampduty took into account the actual market value of the propertysituated in the area – It further held that fixation of circle rate bythe collector is the proper mode for fixation or determination of themarket value unless an aggrieved person challenges that the circlerate fixed by the collector is not the correct market value of theproperty – On appeal, held: There was no compulsion for the plaintiffat the stage of filing the suit, to prove or establish the claim that thesuit lands were revenue paying and the details of such revenue paid– Once it is conceded that the value of the land [per explanation tos.7 (iv-A)] is to be determined according to either sub clauses (v),(va) or (vb), this meant that the concept of “market value” - widerconcept in other contexts, was deemed to be referrable to one orother 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

CDEFG

Athe facts of this case – The reasoning and conclusions of the HighCourt, are therefore, not sustainable – Consequently, the questionof what is the market value, based on the revenue payable, wouldbe an issue to be tried in the suit.

Allowing the appeals, the CourtB

HELD: 1. It is undisputed that the point in issue was withrespect to valuation for purposes of court fee; equally, it is not inissue that since the plaintiff (i.e. petitioner) sought, in addition toa declaration, in both the suits, decrees of cancellation, the crucialpoint was what the correct value for purposes of court fee was.CNow, market value has been specifically defined, in the contextof litigation like the present one. According to Section 7 (iv-A),in case the plaintiff (or his predecessor-in-title) was not party tothe decree or instrument, the value was to be according to one-fifth of the value of the subject matter, “and such value shall bedeemed to be” under Section 7 (iv-A), “if the whole decree orDinstrument is involved in the suit, the amount for which or valueof the property in respect of which the decree is passed or theinstrument executed”. Importantly, the explanation to Section 7(iv-A) created deeming fiction as to what constitutes the “valueof the property” by saying that “in the case of immovable propertyEshall be deemed to be the value as computed in accordance withthe sub-section (v), (v-A) or (v-B) as the case may be.” [Para15][959-D-G]2. The plaintiff/petitioners’ contention was and continuesto be that the value determinable is in terms of clause (v) ofFSection 7, by reason of Section 7 (iv-A). Section 7 (v) (i) containstwo clauses- (a) and (b): both are in respect of revenue payinglands. The petitioner valued its suits on the basis of revenuewhich according to it, was payable. While so stating, the value(for purposes of court fee) was determined to be Rs.3000/- ineach of the suits. There was no compulsion for the plaintiff to, atGthe stage of filing the suit, prove or establish the claim that thesuit lands were revenue paying and the details of such revenuepaid. Once it is conceded that the value of the land [perexplanation to Section 7 (iv-A)] is to be determined according toeither sub clauses (v), (va) or (vb) of the Act, this meant that theH

concept of “market value” – wider concept in other contexts,was deemed to bereferrable to one or other modes of determiningthe 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 ofthis case. The reasoning and conclusions of the High Court, aretherefore, not sustainable. Consequently, the question of what isthe market value, based on the revenue payable, would be anissue 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) 1SCC 579 : [2012] 10 SCR 1125 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1722of 2020.

From the Judgment and Order dated 27.05.2019 of the High Courtof 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 KumarMehta, 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, theGappeals were heard finally.

2. The appellant, (hereafter “the plaintiff”) had filed suit (O.S.24/ 2013) in the court of the Civil Judge (Senior Division), Dehradun forcancellation of sale deed dated 08.03.2013, executed by the defendant-

Arespondent no.1. The third respondent, (hereafter called the “purchaser”)had acquired the property from the defendant-respondent no.1. Anothersuit (O.S. No. 25/ 2013, also titled as Agra Diocesan Trust Associationv. Anil David and Others), was filed by the plaintiff for cancellation ofthe sale deed dated 08.03.2013 executed by the first two respondents infavour of the purchaser. further relief sought was for permanentBinjunction against the respondents/ defendants restraining them frominterfering in the plaintiff’s peaceful possession of the property in dispute.The defendants filed their written statements, contending inter alia thatalthough the relief of cancellation of the sale deed in question has beensought, the plaintiff had improperly valued the suit and the court fee paidCwas 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 suitfiled by the plaintiff was undervalued and (b) whether the court fee paidby the plaintiff was insufficient.D

4. The trial court by its order dated 23.04.2016, recorded thefindings against the plaintiff / petitioner and held that the suits filed wereunder-valued and the court fee paid by the plaintiff was insufficient.Aggrieved by the same, the plaintiff filed the writ petition before theHigh Court, contending that the land in dispute was agricultural land.EFurther, it was stated that the appellant-plaintiff was not party to the saledeed, and therefore, the learned trial court has committed an illegality indeciding the issues against the plaintiff and in directing the plaintiff topay ad valorem court fee on the market value of the land. It was alsosubmitted that as the land in dispute was agricultural land, the petitionerwas obliged to pay the court fee on the revenue payable as fixed by theFstate government in view of Section 7(iv-A) of the Court Fees Act,1870.

5. The High Court, by the impugned judgment, after hearing counselfor the parties, accepted the respondent/defendants’ contentions thatthe circle rate fixed by the collector to charge stamp duty took intoGaccount the actual market value of the property situated in the area. Itwas held that fixation of circle rate by the collector is the proper modefor fixation or determination of the market value (for purposes of paymentof court fees), unless an aggrieved person challenges that the circle ratefixed by the Collector is not the correct market value of the property.

6. Mr. P.N. Mishra, learned senior counsel, argued that the land indispute is revenue payable land. Accordingly, the suits were correctlyvalued at 30 times of the revenue fixed by the state. It was urged thatbeing stranger to the sale deed in question, the plaintiff had to pay1/5th on the market value as assessed, i.e. on 30 times the revenue. Itwas 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 valueassessed in view of the circle rate fixed by the collector, which was notthe correct market value. Counsel relied on textual interpretation ofSection 7(iv-A) of the Court Fees Act. Reliance was placed onShailendra Bhardwaj v. Chandra Pal & Anr., (2013) 1 SCC 579 tosay that the circle rate fixed by the collector for charging stamp duty isnot the correct market value of the property for the purpose of courtfees. Therefore, the market value mentioned in the sale deed in order topay 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. Mishraalso argued that the suits were properly valued and the proper court feewas paid. The courts below, according to him, erred in holding that thesuits were under-valued by the plaintiff and that the court fee paid wasinsufficient.

7. Mr. Rakesh Dwivedi, learned counsel appearing for therespondent defendants, resisted the present proceedings. He urged thatthis court should desist from interfering with the concurrent findings ofthe courts below, under Article 226 of the Constitution of India. It wasalso submitted by him that the circle rate fixed by the collector for chargingstamp duty was so fixed in terms of the actual market value of theproperty situated in the area. It is argued that the fixation of circle rateby the collector is the correct mode for fixation of market value, unlessan aggrieved person challenges that the circle rate fixed by the collectoris incorrect. It is submitted that the appellants, in an arbitrary manner,valued the market value of the suit property for payment of court feeand jurisdiction of the court.

8. In the impugned judgment, the High Court reasoned as follows:

“19. The submission of the learned counsel for the petitionersthat to ascertain the market value and for the purpose ofpayment of court fee and jurisdiction of the court, should beconsidered from plaint averments alone and what has beenstated in the written statement is not relevant is acceptable to

Athe extent that what has been contended in the writtenstatement is not relevant, but the court has to consider whiledetermining the market value for the purpose of court feeand jurisdiction of the court, the court has to consider theaverments of plaint, whether the suit has been valued for thepurpose of court fee and jurisdiction as per the relief claimedBand in accordance with the provisions contained in the Courtfee and Suit Valuation Act. The court is not supposed to acceptthe plain averment in regard to the payment of court fee andjurisdiction as contended by the plaintiff. On perusal ofthe plaint averments and the provisions contained in SectionC7(iv-A), this Court is of the view that at one place the plaintiffhas valued the suit for cancellation of sale deed and for thepurpose of payment of court fee and jurisdictionRs. 2,00,00,000/- and immediately thereafter at thirty timesof the revenue payable i.e. Rs. 3,000/- and paid the court feeon 1/5 of the valuation of Rs. 3,000/-.

20. It is nowhere stated in the plaint that how the plaintiff hasvalued the market value of the property in question atRs. 2,00,00,000/- whereof as per the circle rate fixed by theCollector, the market value of the property in dispute isRs. 11,00,00,000/-. The stamp duty has been paid on an amountEof Rs. 2,00,00,000/- sale consideration but in view of theprovisions contained in Section 7(iv-A) of the Act the saleconsideration is not the relevant factor for the purpose ofpayment of court fee and jurisdiction of the court. It is onlythe market value of the suit property the court fee is to beFpaid and jurisdiction of the court be fixed. The plaintiff cannottake two contradictory market value in his plaint, as in oneplace he has fixed the market value of Rs. 2,00,00,000/- andthe jurisdiction of hearing the suit for valuation ofRs. 1,00,000/- vests in Civil Judge (Sr. Div.), whereof suitvalued for an amount of Rs. 3,000/- for the purpose of paymentGof court fee and jurisdiction, the jurisdiction to try the suit ofthe valuation of Rs. 3,000/- vests in the court of Civil Judge(Jr. Div.).

21. Section 15 the Code of Civil Procedure provides that everysuit shall be instituted in the court of the lowest gradeHcompetent to try it. Section 15 of CPC is quoted hereunder:

“15. Court in which suits to be instituted.- Every suit shall beinstituted in the Court of the lowest grade competent to tryit.”

22. Assuming that the market value of the suit property isRs. 3,000/-, as per the averment of the plaint, then the suitscould not have been filed in the Court of Civil Judge (Sr.Div.). If it is valuation of Rs. 2,00,00,000/- as per the plaintaverment for the purpose of payment of court fee andjurisdiction and the suits have been instituted in the competentcourt of jurisdiction, then there is no basis of it that the marketvalue of the suit is Rs. 2,00,00,000/-. The submission oflearned counsel for the petitioners that circle rate is not thecorrect mode to ascertain the market value has some force,but it is not the absolute proposition. In some cases, the marketvalue may be higher or lower then the circle rate but toascertain the market value, the party assailing the marketvalue as fixed in the circle rate has to prove that the circlerate has not been fixed on the real market value. Unlessotherwise market value is proved on higher or lower side, themarket value assessed on the basis of circle rate cannot besaid improper/incorrect market value.23. perusal of the impugned order would show that thetrial court having considered the market value as mentionedin the sale deed has found the correct market value of thesuit property and held that the suits have not been valuedproperly. Thus, I am of the considered view that since no othermarket value has been proved by the petitioners/plaintiff thatthe settled revenue of the land is Rs. 3,000/- and in absenceof any evidence in this regard, the trial court has rightlyconsidered the market value of the property in dispute inaccordance with the market value fixed by the Collector inorder to charge the stamp duty, which is the correct marketvalue.

24. So far the findings recorded by the trial court that thepetitioners/plaintiff is required to pay the ad valoram courtfee on the market value is incorrect in view of the provisionscontained in Sub Section (2) of Section 7(iv-A) of the CourtFee Act. Since the petitioners/plaintiff or its predecessor-in-

ABC

Ainterest is not the party to the instrument, therefore, thepetitioners/plaintiff is obliged to pay 1/5 of the value of thesubject matter as mentioned in the instrument involved in thesuit.

25. In view of the findings recorded above, I am of theBconsidered view that the trial court has rightly held that O.S.no. 24 of 2013 and O.S. 25 of 2015 have been undervaluedand court fee paid is insufficient and in fixation of marketvalue as mentioned in the sale deed Rs. 11,79,09,000/- (inO.S. no. 24 of 2013) and Rs. 7,20,36,000/- (in O.S. no. 25 of2013) is correct, whereof the finding in regard to the paymentCof ad valorem court fees are illegal and is liable to set aside.Thus, the judgment and order passed by the trial court onissue nos. 8 and 9 are modified to the extent that the plaintiffshall value the suit no. 24 of 2013 at the rate ofRs. 11,79,09,000-and O.S. no. 25 of 2013 at the rate ofDRs. 7,20,36,000/- respectively, and shall pay the court fee on1/5 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 twomonths from today, on payment of remaining court fee thetrial court shall proceed to decide both the suits in accordanceEwith law.”

9. For proper appreciation of the issue, it would be essential toextract the relevant provisions of law. Section 7(iv-A) of the U.P. CourtFees Act, 1870 reads as follows:

F“7. Computation of fees payable in certain suits- The amountof fee payable under this Act in the suits next hereinaftermentioned shall be computed as follows: -

XXXXXXXXXXXX

For cancellation or adjudging void instruments and decrees.G(iv-A) In suit for or involving cancellation of or adjudgingvoid or voidable decree for money or other property havinga market value, or an instrument securing money or otherproperty having such value:

(1) where the plaintiff or his predecessor-in-title was partyHto the decree or the instrument, according to the value of thesubject-matter, and

(2) where he or his predecessor-in-title was not party to thedecree or instrument, according to one-fifth of the value ofthe subject matter, and such value shall be deemed to be-

if the whole decree or instrument is involved in the suit, theamount for which or value of the property in respect of whichthe decree is passed or the instrument executed, and if only apart of the decree or instrument is involved in the suit, theamount or value of the property to which such part relates.

Explanation - ‘The value of the property’ for the purposes ofthis sub-section, shall be the market-value, which in the caseof immovable property shall be deemed to be the value ascomputed 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 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 toobtain declaration that an alleged adoption is valid;

To set aside an adoption- (d) to set aside an adoption or toobtain declaration that an alleged adoption is invalid ornever, in fact, took place;

To set aside an award other than awards mentioned in Section8. - (e) to set aside an award not being an award mentionedin Section 8;

according to the amount at which the relief sought is valuedin the plaint:

[Provided that such amount shall not be less than one fifth ofthe market value of the property involved in or effected bythe 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 caseexceed Rs.500].

Explanation 1.- When the relief sought is with reference toany immovable property the market value of such property

952SUPREME COURT REPORTS

Ashall be deemed to be the value computed in accordance withsub-section (v), (v-A) or (v-B) of this section, as the case maybe.

Explanation 2 – In the case of suits-

(i) falling under clauses (a) and (b), the property which isBaffected by the relief sought, and where properties of boththe plaintiff and defendant are affected, the property of theplaintiff so affected;

(ii) falling under clauses (c) and (d), the property to whichtitle by succession or otherwise may be diverted or affectedCby the alleged adoption; and

(iii) falling under clause (e), the property which forms thesubject-matter of the award;

shall be deemed to be the property involved in or affected byDthe relief sought within the meaning of the proviso to thissub-section.

For restitution of conjugal rights – (iv-C) in suits – (a) for therestitution of conjugal rights;

For marital rights – (b) for establishing or annulling orEdissolving marriage;For guardianship – (c) for establishing right to the custodyor guardianship of any person such as minor, includingguardianship for the purpose of marriage.

according to the amount at which the relief sought is valuedFin the plaint, but in no case shall such amount be less thanRs.200.

For possession of lands, buildings or gardens – (v) in suitsfor the possession of land, buildings or gardens-

Gaccording to the value of the subject matter; and such valueshall be deemed to be-

(I) where the subject-matter is land, and

(a) where the land forms an entire estate, or definite shareof an estate, paying annual revenue to Government, or formsHpart of such an estate and is recorded in the Collector’sregister as separately assessed with such revenue; and such

revenue is permanently settled—ten times the revenue sopayable;

(b) where the land forms an entire estate, or definite shareof an estate, paying annual revenue to Government, or formspart of such estate and is recorded as aforesaid and suchrevenue is settled, but not permanently—

ten times the revenue so payable;

(c) where the land pays no such revenue, or has been partiallyexempted from such payment, or is charged with any fixedpayment in lieu of such revenue, and net profits have arisenfrom the land during the year next before the date of presentingthe plaint—

twenty times the annual average of such net profits; but whenno such net profits have arisen therefrom the market valuewhich shall be determined by multiplying by twenty the annualaverage net profits of similar land for the three yearsimmediately preceding the date of presenting the plaint;

(d) where the land forms part of an estate paying revenue toGovernment, but is not definite share of such estate anddoes not come under clause (a), (b) or (c) above-

the market value of the land which shall be determined bymultiplying by fifteen the rental value of the land, includingassumed rent on proprietary cultivation, if any;

(II) where the subject matter is building or garden-

Explanation.—The word “estate”, as used in this sub-section,means any land subject to the payment of revenue, for whichthe proprietor or farmer or raiyat shall have executed aseparate engagement to Government, or which, in the absenceof such engagement, shall have been separately assessed withrevenue;

For possession of superior proprietary and under-proprietaryland – (v-A) In suits for possession -

(1) of superior proprietary rights where under-proprietaryor sub-proprietary rights exist in the land-

according to the market value of the subject matter, and suchvalue shall be determined by multiplying by fifteen the annualnet 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 valueBshall 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 landfor the year next before the presentation of the plaint.

If no such rent is recorded in the collector’s register the valueCshall be determined in the manner laid down in clause (c) ofsub-section (v) of this section save that the multiple will beten.

Explanation – Land held by any permanent lessees shall betreated for the purposes of this sub-section, as under-Dproprietary or sub-proprietary land.

Possessory suit between tenants – (v-B) In suits for possessionof land between rival tenants and by tenants against trespasseraccording to the value of the subject-matter and such valueshall be determined if such land is the land of-

(a) permanent tenure-older or fixed rate tenant – bymultiplying by twenty the annual rent recorded in theCollector’s register as payable for the land for the yearnext before the presentation of the plaint;

(b) an ex-proprietary or occupancy tenant – by multiplyingFby two such rent in case of suits for possession of landbetween rival tenants, and by annual rent in suits by tenantsagainst trespassers;

(c) any other tenant – by annual rent.

If no such rent is recorded in the Collector’s register, the valueshall be determined in the manner laid down in clause (c) ofsub-section (v) of this section save that the multiple shall bethat entered in clauses (a), (b) and (c) of this sub-sectionaccording as the class of tenancy affected is governed byclauses (a), (b) or (c) of this sub-section.”

10. In OS No. 24/2013, the averment with respect to suit valuationand court fee was as follows:

“15. That the valuation of the suit for the purpose of courtfee 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 andjurisdiction at Rs.2,00,00,000/- Hence, relief “A” is valuedfor the purpose of court fee and jurisdiction at 30 times ofthe land revenue, i.e., Rs.3,000/-. The plaintiff was not partyto the sale deed, hence the court fee of 1/5 of Rs.3,000/- isbeing paid.

(b) For Relief “B” - Rs.5,00,000/-, on which the prescribedcourt fee has been paid.

(c) For Relief “C” -Rs.5,00,000/-, on which the prescribedcourt fee has been paid.”

In O.S. No. 25 of 2013, the averment with respect to valuationfor purposes of court fees, is as below:

“15. That the valuation of the suit for the purpose of courtfee 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 andjurisdiction at Rs.1,00,00,000/- Hence, relief “A” is valuedfor the purpose of court fee and jurisdiction at 30 times ofthe land revenue, i.e., Rs.3,000/-. The plaintiff was not partyto the sale deed, hence the court fee of 1/5 of Rs.3,000/- isbeing paid.

(b) For Relief “B” - Rs.5,00,000/-, on which the prescribedcourt fee has been paid.

(c) For Relief “C” -Rs.5,00,000/-, on which the prescribedGcourt fee has been paid.”

11. The reliefs sought in each case were:

(i) for decree for declaration that the sale deed dated 08.03.2013executed by defendant no. 1 in favour of defendant no. 3 (suit no.

24 of 2013) is void and not binding on the plaintiff and decree ofcancellation thereof;

(ii) for decree for declaration that the sale deed dated 08.03.2013executed 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 adecree of cancellation thereof;

(iii) decree for permanent injunction restraining defendant nos.1 to 3, their agents, employees, representatives etc. from interferingin any way with the property more fully described in the scheduleof the plaint, till the disposal of the suit (in both suits); and

(iv) decree of permanent injunction restraining defendant no. 3,his agents, employees, representatives etc. from in any waytransferring, alienating or creating third party interest in the propertymore fully described in the schedule of the plaint till the disposalof 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 thatthe claims relating to the sale deeds amounted to seeking cancellation ofthe sale deeds and therefore, ad valorem court fee was payable on thesale consideration in respect of the sale deeds. The said view wasaffirmed in the revision. The court addressed the issue of court feepayable in regard to the claim for declaration that the sale deeds werevoid and not “binding on the coparcenary”, and for the consequentialrelief of joint possession and injunction. After referring to the provisionsof the Court Fees Act, 1870 as amended in Punjab (as the controversyarose from the High Court of Punjab and Haryana), the Court held:

“Where the executant of deed wants it to be annulled, hehas to seek cancellation of the deed. But if non-executantseeks annulment of deed, he has to seek declaration thatthe deed is invalid, or non est, or illegal or that it is not bindingon him. The difference between prayer for cancellation anddeclaration in regard to deed of transfer/conveyance, canbe brought out by the following illustration relating to andB, two brothers. executes sale deed in favour of C.Subsequently wants to avoid the sale. has to sue forcancellation of the deed. On the other hand, if B, who is notthe executant of the deed, wants to avoid it, he has to sue for declaration that the deed executed by is invalid/void andnon est/illegal and he is not bound by it. In essence both maybe 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, hehas to pay ad valorem court fee on the consideration statedin the sale deed. If B, who is non-executant, is in possessionand sues for declaration that the deed is null or void anddoes not bind him or his share, he has to merely pay fixedcourt fee of Rs. 19.50 Under Article 17(iii) of the SecondSchedule of the Act. But if B, non-executant, is not inpossession, and he seeks not only declaration that the saledeed is invalid, but also the consequential relief of possession,he has to pay an ad valorem court fee as provided underSection 7(iv)(c) of the Act.

Section 7(iv)(c) provides that in suits for declaratory decreewith consequential relief, the court fee shall be computedaccording to the amount at which the relief sought is valuedin the plaint. The proviso thereto makes it clear that wherethe suit for declaratory decree with consequential relief iswith reference to any property, such valuation shall not beless than the value of the property calculated in the mannerprovided for by Clause (v) of Section 7.”

13. In Shailendra Bhardwaj & Ors. v. Chandra Pal & Anr.(supra), this court had to consider whether suit for declaration that awill and sale deed are void resulting in their cancellation, fell underSection 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 theCourt Fees Act, 1870 for the purpose of valuation. The trial court hadheld that the court fee had to be paid under Section 7(iv-A) and the HighCourt affirmed that view. This court noted the provisions of the CourtFees Act, 1870 as amended by the U.P. Amendment Act (Act 19 of1938) and held as follows:

“On comparing the above mentioned provisions, it is clearthat Article 17(iii) of Schedule II of the Court Fees Act isapplicable in cases where the Plaintiff seeks to obtain adeclaratory decree without any consequential relief and thereis no other provision under the Act for payment of fee relating

Ato relief claimed. Article 17(iii) of Schedule II of the CourtFees Act makes it clear that this Article is applicable in caseswhere the Plaintiff seeks to obtain declaratory decreewithout consequential reliefs and there is no other provisionunder the Act for payment of fee relating to relief claimed. Ifthere is no other provision under the Court Fees Act in caseBof suit involving cancellation or adjudging/declaring voidor voidable will or sale deed on the question of payment ofcourt fees, then Article 17(iii) of Schedule II shall beapplicable. But if such relief is covered by any other provisionsof the Court Fees Act, then Article 17(iii) of Schedule II willCnot be applicable. On comparison between the CourtFees Act and the U.P. Amendment Act, it is clear that Section7(iv-A) of the U.P. Amendment Act covers suits for or involvingcancellation or adjudging/declaring null and void decree formoney or an instrument securing money or other propertyhaving such value.”D14. The Court observed that the suit was filed after the death ofthe testator, and that the suit property covered by the will had to bevalued. The court felt that since Section 7(iv-A) of the U.P. AmendmentAct specifically provided that payment of court fees in cases where thesuit is for, or involving cancellation or adjudging/declaring null and void aEdecree for money or an instrument, Article 17(iii) of Schedule II of theCourt Fees Act was inapplicable. The U.P. Amendment Act, therefore,was applicable despite the fact that no consequential relief had beenclaimed. Consequently, in terms of Section 7(iv-A) of the U.P.Amendment Act, court fees were to be computed according to the valueFof the subject-matter. The trial court and the High Court correctly held itto be so. The court distinguished Suhrid Singh’s case (supra) statingthat:

“10. We are of the view that the decision of this Court inSuhrid Singh (supra) is not applicable to the facts of theGpresent case. First of all, this Court had no occasion toexamine the scope of the U.P. Amendment Act. That was acase in which this Court was dealing with Sections 7(iv)(c),(v) and Schedule II Article 17(iii), as amended in the State ofPunjab. The position that we get in the State of Punjab isentirely different from the State of U.P. and the effect of the

U.P. Amendment Act was not an issue which arose forconsideration in that case. Consequently, in our view, the saidjudgment would not apply to the present case.

11. The Plaintiff, in the instant case, valued the suit at Rs. 30lakhs for the purpose of pecuniary jurisdiction. However,for the purpose of court fee, the Plaintiff paid fixed courtfee of Rs. 200 Under Article 17(iii) of Schedule II of the CourtFees Act. The Plaintiff had not noticed the fact that the abovementioned Article stood amended by the State, by adding thewords “not otherwise provided for by this Act”. Since Section7(iv-A) of the U.P. Amended Act specifically provides forpayment of court fee in case where the suit is for or involvingcancellation or adjudging/declaring void or voidable aninstrument securing property having money value, Article17(iii) of Schedule II of the Court Fees Act shall not beapplicable.”

15. It is evident from the above discussion that it is undisputedthat the point in issue was with respect to valuation for purposes of courtfee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein)sought, in addition to declaration, in both the suits, decrees ofcancellation, the crucial point was what the correct value for purposesof court fee was. Now, market value has been specifically defined, inthe context of litigation like the present one. According to Section 7(iv-A), in case the plaintiff (or his predecessor-in-title) was not partyto the decree or instrument, the value was to be according to one-fifth ofthe value of the subject matter, “and such value shall be deemed tobe” under Section 7 (iv-A),“if the whole decree or instrument isinvolved in the suit, the amount for which or value of the propertyin respect of which the decree is passed or the instrument executed”.Importantly, the explanation to Section 7 (iv-A) created deeming fictionas to what constitutes the “value of the property” by saying that “in thecase of immovable property shall be deemed to be the value ascomputed in accordance with the sub-section (v), (v-A) or (v-B) asthe case may be.”

16. The plaintiff/petitioners’ contention was and continues to bethat the value determinable is in terms of clause (v) of Section 7, byreason 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

ABC

Aits suits on the basis of revenue which according to it, was payable.While so stating, the value (for purposes of court fee) was determinedto be ` 3000/- in each of the suits.

17. plain reading of the impugned judgment reveals that whatweighed heavily with the High Court was the fact that the plaintiff valuedBthe suits differently for the purposes of court fees and jurisdiction, andsecondly that:

“no other market value has been proved by the petitioners/plaintiff that the settled revenue of the land is Rs. 3,000/- andin the absence of any evidence in this regard, the trial courtChas rightly considered the market value of the property indispute in accordance with the market value fixed by theCollector in order to charge the stamp duty, which is the correctmarket value.”

In the opinion of this court, there was no compulsion for the plaintiffDto, at the stage of filing the suit, prove or establish the claim that the suitlands were revenue paying and the details of such revenue paid. Onceit 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” – widerconcept in other contexts, was deemed to bereferrable to one or otherEmodes of determining the value under sub clauses (v), (va) or (vb) ofSection 7 (iv-A). This aspect was lost sight of by the High Court, in thefacts of this case. The reasoning and conclusions of the High Court, aretherefore, not sustainable.

18. In view of the above discussion, the impugned judgment andForder, and that of the trial court, cannot stand. Consequently, the questionof what is the market value, based on the revenue payable, would be anissue to be tried in the suit. Resultantly, the appeals succeed and areallowed without any order on costs.

Devika Gujral

Appeals allowed.