WPMS/2773/2016 of Saraswati Shiksha Samiti Vs Ranjay Pratap AND OTHERS

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 2773 of 2016

Saraswati Shiksha Samiti … Petitioner Vs. … Ranjay Pratap and others Respondents

Advocate : Mr. Jitendra Chaudhary, Advocate for the petitioner. Mr. Kartikey Hari Gupta, Advocate for the respondents.

Hon’ble Sharad Kumar Sharma, J.

The petitioner is the defendant in Suit, which was preferred by the plaintiff(s)/respondent(s), whose predecessor owner in possession of property i.e. late father Mr. Ramlal is said to have gifted the property by virtue of Gift Deed, executed on 28[th] August 1997 in favour of the petitioner/Society for the purposes of establishment of School, so that the awareness amongst the children/people of local area may increase. Consequently, by virtue of registered Gift Deed which was registered on 28[th] August 1997 by late Mr. Ramlal, he had gifted the land having an area of about 1.359 hectares, being land lying in khasra No. 276 and 273, situated in village Mahuvadawara, Tehsil Jaspur, District Udham Singh Nagar, it was gifted exclusively for the purposes of running an Educational Institution. Consequently, upon the execution of the Gift Deed of the said land the petitioner/society, after putting heavy investments have raised superstructure of the school over which the school at present is running, after the same has been upgraded by the permission granted on 26[th] September 2000 and on 26[th] June 2004 respectively, as would be apparent from the literature of the Institution about the establishment of the same and regarding its subsequent up-gradation into High School and as an Intermediate College made by virtue of an order dated 26[th] September 2008. After the school started functioning and after the death of Mr. Ramlal on 1[st] April 2001, the present respondents are said to have instituted suit, being Suit No. 2 of 2009, Ranjay Pratap & Others v. Saraswati Shiksha Samiti.

2. What would be relevant at this stage which has to be pointed out is that the suit in question was instituted by the plaintiff for the following relief:-

**v- ?kks’k.kkRed fMdzh bl vej dh lkfnj QjekbZ tk;s fd nku i= rkjh[kh 20-08-1997 tks lc jftLVªkj dk;kZy; dk”khiqj esa ftYn la[;k 976 cgh ua0 1 ds i`’B 271&273 ij vafdr gS drbZ “kwU; nLrkost gSaA rkjh[kh 20-08-1997 tks lc jftLVªkj dk;kZy; dk”khiqj esa ftYn la[;k 976 cgh ua0 1 ds i`’B 271&273 ij vafdr gS drbZ “kwU; nLrkost gSaA c- [kpkZ eqdnek oknhx.k dks izfroknh ls fnyk;k tk;sA [kpkZ eqdnek oknhx.k dks izfroknh ls fnyk;k tk;sA l- vU; dksbZ nknjlh tks eqQhn oknhx.k gks izfroknh ls fnyk;k tk;sA** vU; dksbZ nknjlh tks eqQhn oknhx.k gks izfroknh ls fnyk;k tk;sA**

3. What is important to be seen at this stage is that in suit which was instituted on 14[th] August 2009, seeking declaration of the Gift Deed dated 28[th] August 1997, as to be null and void, was without relief sought for simultaneous restoration of possession in pursuance to the declaration decree sought for in the suit in question by the plaintiffs/respondents. After the institution of the suit, it is the case of the petitioner that the pleadings were exchanged and after the exchange of pleadings, the learned trial Court had framed number of issues, which emerged out of the respective pleadings of the parties and it was the issue No. 5, with which we are concerned, which was framed by the learned trial Court to the effect that as to whether the suit has been properly valued and the Court fees paid on it was appropriately paid. Issue No. 5 is quoted hereunder:-

**okn fcUnq la[;k&5 bl vk”k; dk fojfpr fd;k x;k gS fd D;k oknhx.k }kjk okn dk ewY;kadu de fd;k x;k rFkk U;k;”kqYd de vnk fd;k x;k gSA**

4. The said issue was adjudicated by the learned Civil Court vide its judgement dated 29[th] September 2011, whereby the Court has held that after the execution of the Gift Deed in 1997, the property which was valued at the relevant time it was at the rate of Rs. 4,20,000/- as would be apparent from Paper Number 7 (ga) 2 and based on the said valuation, the suit was valued and accordingly the Court fees was paid by the plaintiff/respondent, which was based on the said value of the property as it was existing at the time when the deed was executed and in relation to the nature of the property as it stood recorded in the revenue records i.e. on the date of the execution of the Gift Deed dated 28[th]August 1997.

5. While deciding Issue No 5, the defendants/petitioners, raised an objection to the effect that after vesting of the landed property in the Management of the Institution in question, they have raised superstructure and at present school is running there and if at all property was to be valued for the purposes of the fixation of the Court fees, it ought to be done after taking into consideration and valuing the superstructure also which exists over the land in question after grant of permission from competent authorities. The trial Court decided the issue based on the fact that the assessment of the valuation of the suit would be based upon decree of declaration which was sought in relation to the property, it was in relation to document, which at the time when it was gifted was recorded there in shreni 1 with the predecessor owner and hence since it was simply suit for declaration it was contended that it has been appropriately valued at Rs. 4,20,000/- and Court fees paid of Rs. 200/- was appropriate.

6. The said judgement, as rendered by the learned trial Court was put to challenge in Revision being Revision No. 50 of 2011, SaraswatiShiksha Samiti v. Rnanjay Pratap and others, and the revisional Court by an order dated 19[th] January 2012, dismissed the revision and consequently, upheld the order passed by the learned trial Court on 29th September 2011, holding the suit to be properly valued and consequently also holding that the Court fees, which has been paid by the plaintiff was just and proper as it goes to be in consonance to the provisions contained under Section 7(iv-A) of the Court Fees and Suit Valuation Act.

7. Even if the provisions contained under Section 7(iv-A) is taken into consideration, which deals with the cases where an instrument has been sought to be questioned or challenged for its cancellation, it contemplates that the valuation of the suit and the Court fees payable on it, would be depending upon the value of the subject matter, which is involved in the instrument. Hence, in that view of the matter, irrespective of the fact that the instrument, even if it happens to be an old instrument,

but the fact remains that the deed dated 28[th] August 1997 which has been put to challenge in proceeding before the Court, this Court is of the view that in view of the simplicitor interpretation of the provisions contained under Section 7(iv-A) of the Court Fees Act, 1870. The

provision is quoted hereunder:-

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

(1)Where the plaintiff or his predecessor-in-title was party to the decree or the instrument, according to the value of the subject-matter, anddecree or the instrument, according to the value of the subject-matter, and

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

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

Explanation .- ‘The value of the property’ for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be.”

8. The suit has to be valued at the market value of subject matter i.e. the status of the property and its value as it exists on the date of filing of the suit. Being aggrieved against the said judgements rendered on 9[th] January 2012 and 9[th] September 2011 by the Courts below, writ petition was preferred by the petitioner/committee being Writ Petition No. 6936 of 2013, Saraswati Shiksha Samiti Jaspur Tehsil Jaspur v. Ranjay Pratap & others. The said writ petition was allowed by the judgement dated 4[th] December 2013 and while allowing the writ petition, the Court has taken into consideration the ratio, as laid down by the Hon’ble Apex Court in judgement reported in 2013 (1) SCC 579,Shailendra Bhardwaj and other v. Chandra Pal and another, wherein the Hon’ble Apex Court has held that while determining the Court fees payable in suit for declaration of Gift Deed to be void, it would be apparently clear that it has to be as per the provisions contained under Article 17 (iii) of Schedule II of the Court Fees Act, its that in declaratory Suit which is without any consequential relief and since there is no other provisions related to determination of the Court fee which

would be made payable and if the relief claimed falls to be under Article 17 (iii) of Schedule II of the Act, the plaintiff has to obtain declaratory suit/ decree only without any consequential relief there is no provisions under the Act contemplating for payment of Court fee relating to the relief claimed and consequently in view of the provisions contained under Section 7(iv-A) of the UP Amendment Act and in the Court Fees Act, it has held that the valuation which was required to be made in relation to the suit in question seeking declaration against the Gift Deed of 1997, has had to be in accordance with the valuation of the matter as existing today and hence the matter was remitted back to amend the valuation clause and pay the Court fees as directed in accordance with Section 7(iv-A) of the UP Amendment Act.“On comparing the abovementioned provisions, it is clear that Article 17 (iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17 (iii) of Schedule II of the Court Fees Act makes it clear, that this article is applicable in cases where the plaintiff seeks to obtain declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of suit involving cancellation or adjudging/declaring void or voidable will or sale deed on the question of payment of court fees, then Article 17 (iii) Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(ivA) of the U.P. Amendment Act covers suit for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.

In view of the above dictum of the apex court, the court fee is payable as per section 7 (iv-A) of the U.P. Amendment Act.

Accordingly, in terms of section 7(iv-A) of the U.P. Amendment Act the court fees have to be computed according to the valuation of subject matter.

Accordingly, the writ petition is allowed. Impugned orders dated 19.01.2012 and 29.09.2011 passed by learned District Judge Udham Singh Nagar, are set aside. The plaintiff is directed to take steps to amend the valuation clause and paid court fee as directed above.”

9. At this juncture, it would be apt to observe that the direction as given by the co-ordinate Bench of this Court vide its judgement dated 4[th] December 2013, directing the valuation of the property to be made inaccordance with, “the subject matter”, which obviously would constitute to be of the land and of superstructure as with the passage of time land

has been vested for running school the said judgement dated 4[th]December 2013 has attained its finality, as having not being questioned before any superior Court. It was after rendering the judgement dated 4[th]December 2013 in Writ Petition (M/S) No. 1570 of 2013, Saraswati Shiksha Samiti Jaspur Tehsil Jaspur v. Ranjay Pratap & others, by the coordinate Bench of this Court, that the plaintiff thereafter had filed an application Paper Number 135 (ka), before the learned Court below for the purposes of amending the valuation clause of the suit which was opposed by the defendants/petitioners herein by filing an objection paper number 137 (ka), based on the fact that as per the report of the Valuers, the property is to be valued after taking into consideration, the superstructure also which has been raised on the land, which was principally gifted by the Gift Deed dated 28[th] August 1997, and since the entire property now has been valued and assessed as per the report to be of Rs. 1,00,01,083/- and the effect of declaration of the Gift Deed as to be void, it would also have an impact on the very right of the Committee of Management to continue the Institution over the land in question to the Gift Deed, which is being sought to be declared as null and void. In such an eventuality, it would be having long term impact on the very subsistence of the Institution over the land in question.10. On the exchange of the pleading when the issues were framed and the issue with which we are concerned in the present writ petition, were pertaining to the issues of as to what would be the proper valuation of the suit and particularly, in the light of the order passed by the co-ordinate Bench of this Court while remitting the matter back for re-deciding the Issue No. 5 pertaining to the valuation in the light of the judgement as referred above and also considering the fact that after the decision of 14[th] December 2013, which was having bearing on the appropriate determination of valuation of the suit, the Court proceeded to decide the issue pertaining to the valuation by an order as rendered on an application paper number 135 (ka) by judgement dated 28[th] August 2015, wherein it was held by the Court, by the judgement dated 28[th]August 2015, that the suit has not been appropriately valued and the Court after taking into consideration the implications flowing from the

provisions contained under Sections 3 and 4 of the Uttar Pradesh Suit Valuation Act and Section 3 of the Court Fees Act, the Court has held that the Court fees payable would be settled on the basis of the subject matter i.e. the property in question, in its totality as it existed on the date of institution of the Suit, that means, in fact, as per actual value of property which was existing over the land, which was gifted in 1997, which will be including within in its ambit the market value of the property which was existing at the time of institution of the suit, which as per the Valuer’s Report on record i.e. paper No.104 (ga), it was assessed after including the building and other assets existing on the land, the same has been assessed by the report dated 8[th] May, 2011 as to be of Rs. 1,37,10,000/-. Consequently, based on the said report, the learned trial Court held that the valuation of the said suit has to be made in accordance with the Section 7(iv-A) of the UP Amendment Act, which means that for adjudication of voidinstrument and decree the valuation has to be made in accordance with the market value or the subject matter of the instrument based on the valuation of the subject matter as it was existing on the date of the institution of the suit in question which should be the basis for valuing the suit and its subsequent determination of payability of stamp.

11. It is the case of the defendant that since when the suit was instituted though apparently it was only for the purposes of declaration of the Gift Deed dated 1997 as to be void but still it ought to have been valued in relation to it based upon the subject matter as contemplated under Section 7(iv-A) of the UP Amendment Act, as it has been held out by the judgement of the co-ordinate bench of this Court. Accordingly, the application paper number 135 (ka) was decided by the Civil Judge (Senior division), Kashipur, District Udham Singh Nagar by the judgement dated 12[th] August 2015, thereby holding that the valuation of the Suit was to be done as per the value of the subject matter which was under consideration in the suit based on its market value, consequently, the application paper number 135 (ka), preferred by the plaintiff/respondent was rejected.12. Being aggrieved against the judgement and order dated 12[th]August 2015, revision was preferred by the plaintiff/respondent being Civil Revision No. 44 of 2015, Ranjay Pratap and others v. Saraswati Shiksha Samiti, which was adjudicated by the impugned Revisional Court by the judgement dated 27[th] July 2016 and the Revisional Court, which while reversing the judgement rendered by the learned trial Court dated 12[th] August 2015, has held that the valuation of the suit property is to be made on the basis of the instrument, which is being sought to be declared as to be void and hence it had held that the valuation of the suit ought to be determined on the basis of the land revenue, payable towards the land which was gifted by the instrument, which it would have fetchin accordance with its annual valuation of the land and consequently by applying the principles of 30 times of the annual valuation of the property, the Revisional Court held that the suit was appropriately valued and consequently the judgement dated 12[th] August 2015 by trial Court was set aside and the revision preferred by the respondent was allowed by the impugned judgement dated 27[th] July 2016, holding thereof that the suit as it was instituted it was appropriately valued by the plaintiff/respondent.

13. It was being aggrieved against the said judgement of the revisional Court as rendered on 27[th] July 2016, that the present writ petition has been preferred by the Committee of Management of the institution of the petitioner, challenging the order dated 27[th] July 2016, in which the respondents/plaintiffs were issued with the notices by this Court. Consequent to the grant of an interim order dated 6[th] October 2016, whereby the effect and operation of the order and the proceedings of Original Suit No. 2 of 2009, Ranjay Pratap and others v. Saraswati Shiksha Samiti, was stayed and as consequence thereto, the proceeding of the Suit No. 2 of 2009 was directed to be stayed. Steps were taken on 7[th] October 2016, and the respondents had put in appearance, they have filed their vakalatnama through their counsel. Ever since, the institution of the proceedings of the suit in question, the matter was taken up on couple of occasions thereafter but the writ averments remained un-rebutted with regard to as to whether the principles, as directed to be

adhered to by the judgement of the learned Single Judge in the earlier set of proceedings were applicable or not; as to whether the property has to be valued in accordance with the valuation of the document which was sought to be declared as to be badin accordance with its nature as it stood recorded in revenue records in 1997.

14. Unfortunately, though it was argued on 2[nd] August 2019 and directed to be posted on 5[th] August 2019, the respondents had never sought or prayed for any opportunity to file their counter affidavit, and denying the writ averments. Thus, in such an eventuality, in view of the judgements rendered by the Hon’ble Apex Court, as well as, by the Division Bench of Allahabad High Court, it would be deemed that the grounds and the averments made by the petitioner in challenging the Revisional Court’s order in the instant writ petition, the same remained un rebutted and hence in view of the ratio, as propounded by the Hon’ble Apex Court in judgements reported in AIR 1993 (2) SCC 2592, Smt. Naseem Bano v. State of U.P. and others, 1980 (2) SCC 471, State of Punjab and another v. Gurdial Singh & others and AIR 1986 SC 872,Express Newspapers Pvt. Ltd. And others v. Union of India and others, it provides that when in such an eventuality, the averments made in the writ petition would be treated as to be true and un-rebutted. Even otherwise also, if the status of the property as it existed on date and the purpose for which it was gifted in 1997 and is being actually put to use, that is taken into consideration, admittedly, after the execution of the Gift Deed dated 28[th] August 1997, which was registered before the sub Registrar, the educational institution of the petitioner has come up in question and which after raising of the superstructure over the land thus gifted to the Institution, its valuation, as per the Revenue law, cannot be permitted to be carried for all times to come, in view of the provisions contained under Section 7(iv-A) of the UP Amendment Act, because the effect of declaration of the Gift Deed to be void, would have wider implication in future in relation to the very existence of the Institution and superstructure raised over the land which was subject matter of the Gift Deed dated 28th August 1997. Even as per the khatauni, which has been presented by the counsel for the respondent today, in the Court, in

relation to the property in question pertaining to the khatauni of the fasli year 1418 to 1423 fasli, rather it shows that in the Revenue Case No. 22/159 of 2015-16, conversion under Section 143 has been granted and consequent to the order passed on 29[th] August 2016 of conversion, the land has been declared as to be non-agricultural and hence it loses its very status being that of land lying in shreni 1 (ka), as it existed at the time when the Gift Deed was executed on 28[th] August 1997.

15. In such an eventuality, even if the order passed by the Revisional Court is taken into consideration, in light of the provisions contained under Section 7(iv-A) of the Act, it runs contrary to the basic spirit and the directives as issued by the co-ordinate Bench of this Court earlier when it was considering the implications of the provisions contained under Section 7(iv-A) of the of the UP Amendment Court Fees Act and also considering the report of the Valuer and as per the provisions of Section 7 of Court Fees and Suit Valuation Act, in these cases, where declaration has been sought may be in relation to Gift Deed of 1997, but if its impact would be on the total structure existing over the land under the gift, which has been raised thereafter over the land in question and which admittedly as of now has been valued @ Rs. 1,00,01,083/- (Rs. One Crore One Thousand and Eighty Three only) as per the valuer’s report which remained unrebutted by plaintiff/respondent. Consequently, the suit had to be valued in accordance with the subject matter as whole and not in accordance with the nature of the property, with which it stood recorded in the revenue records at the time when the Gift Deed was executed i.e. on 28[th] August 1997. Because, if that is permitted to persist, then it would run contrary to the directions issued by the learned Single Judge on 12[th] August 2015, for valuing the suit on the basis of Section 7(iv-A) of the Court Fees Act.

16. After having heard the counsels, this Court is of the view that the reasons, which has been assigned by the Revisional Court, could not have been rationally tenable in the eyes of law, considering the status of the building as it exists on the date when the Revisional Court, as it was dealing with the consideration on Issue No. 5, itought to have taken

into consideration the Valuer’s Report and the valuation ought to have been assessed on the basis of the actual value, according to superstructure, which existed over the land in question and which was valued by the valuer’s report. Even otherwise also, since the land in question has lost its status as of that being an agricultural land and after the grant of its conversion under Section 143 of U.P.Z.A & L.R. Act, if any declaration has to be made in relation to the Gift Deed dated 20[th]August 1997, it would obviously relate to land, which now stand converted into non-agricultural land with the grant of conversion under Section 143 of U.P.Z.A & L.R. Act. Consequently, this Court holds that the Revisional Court’s order based upon the status of the land as it existed in 1997 in gift deed, for the purposes of valuation of the suit and consequent determination of Court fee payable would be too preposterous and contrary to the provisions contained under Section 7(iv-A) of the Court Fees Act. Accordingly, the Revisional Court’s order cannot be sustained and the same is quashed and also considering the facts that the averments and grounds taken in the writ petition, pertaining to the challenge given to the Revisional Court’s order since remain uncontroverted, it will be treated on the face of it as to be treated to be not denied in all sense.

17. Consequently, the writ petition is allowed and the impugned order dated 12[th] August 2016 is hereby quashed. However, there would be no order as to cost.

Mahinder/

(Sharad Kumar Sharma, J.) 05.08.2019