REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3396 OF 2017
(Arising out of SLP (C) No.33692 of 2016)
J. Vasanthi & Ors. … Appellant(s)
VERSUS
N. Ramani Kanthammal (D) Rep. by …Respondent(s)
LRs. & Ors.
J U D G M E N T
Dipak Misra, J.
This appeal, by special leave, is at the instance of the
appellants calling in question the legal propriety of the
judgment and order dated 16th March, 2016 passed by the
High Court of Judicature at Madras, Bench at Madurai in
C.R.P. (MD) No. 847 of 2015 (PD), whereby the High Court
has affirmed the order passed by the Principal District
Judge, Dindigul in I.A. No. 94 of 2014 in Original Suit No. 20
of 2014 rejecting the prayer of the applicant/defendant for
dismissal of the Original Suit on the ground of payment of
2
inadequate court fee by placing reliance on a wrong provision
of the Tamil Nadu Court Fees and Suit Valuation Act, 1955
(for brevity, “the Act”).
2. The facts in a nutshell are that the “A Schedule property”,
as appended to the plaint, was purchased by the plaintiff’s
father, late Raja Chidambara Reddiyar from one Balasundara
Iyyer on 12.08.1943 through document No. 412/1943 and
also “B schedule property” was purchased by him from one
Swaminatha Iyyer on 09.08.1943 through document No.
238/1943. After the purchase, he got the patta transferred in
his name and paid the government taxes and enjoyed the
properties. On 21.02.1948 through document No. 596/1948
plaintiff’s father made a sale of the A and B Schedule
properties along with some other properties in favour of
Sellammal w/o Rangoon Krishnasamy Reddiyar. As averred
in the plaint, the A and B schedule properties and other
properties which were sold, were again purchased by the
father of the plaintiff on 19.04.1948 through document No.
1469/1948 from Sellammal and, thereafter, changed the
patta in his name bearing patta Nos. 621, 705, 2032 and
2133, and held the suit A and B Schedule properties during
3
his life time. As pleaded, the plaintiff’s father died on
07.10.1986 leaving behind the plaintiff and her sister Gowri
as his legal heirs. The 1st defendant is the son of the
plaintiff. The 2nd defendant is the husband of the 3rd
defendant and the 4th defendant is their son. The 5th
defendant is the father of 3rd and 6th defendants and
father-in-law of the 2nd defendant. The suit was basically
filed for seeking declaration that the sale deeds dated
30.08.1991, 23.03.1993, 04.01.1994, 10.06.2002 and
11.03.2004 as per document Nos. Document Nos.922/1991,
Document No.330/1993, Document No.2395/1994,
Document No.1239/2002 and Document No. 214/2004,
respectively as null and void and for permanent injunction.
3. The further narration of the factual score is that as
regards the “A Schedule property”, the plaintiff asked for a
loan of Rs. 1 lakh from the 2nd defendant, Janakiraman, who
in turn, suggested that an agreement for sale should be
made in favour of his brother-in-law, the 6th defendant,
Saravanaprabhu. The plaintiff agreed to make an agreement
for sale as proposed by the 2nd defendant. As per the said
agreement an amount of Rs. 50,000/- was received by the
4
plaintiff and her son, the 1st defendant and executed an
agreement for sell.
4. It is claimed that at that time, the 2nd defendant
obtained signatures in blank papers. Since the document
was for security which was made in favour of the 6th
defendant on the request of the 2nd defendant, no action was
taken regarding document No. 805/91. It is further
contended that the A and B Schedule properties were
maintained by the plaintiff and her sister in the name of their
father only. When the plaintiff was making arrangements for
partition of the A and B Schedule properties on 10.03.2011,
it came to their knowledge that the defendant Nos. 2 to 6 had
created fabricated documents on the basis of the document
No.805/91. It is urged in the plaint that the 2nd defendant
was a Sub-Registrar and taking advantage of his position the
sale agreement made in favour of the 6th defendant, who is
the brother-in-law of the 2nd defendant, fabricated sale deeds
were created by the defendant Nos. 2 to 6 as if the plaintiff
had executed the sale deed in favour of the 6th defendant.
5. The defendants filed I.A. No.94 of 2014 in O.S. No.20 of
2014 praying for directing the plaintiff to pay the court fees
5
under Section 40 of the Act failing which to reject the plaint
since the plaint was highly undervalued. The said
application for rejection of the plaint preferred under Order
VII Rule 11 of the Code of Civil Procedure was dismissed by
the Principal District Judge, Dindigul, as mentioned
hereinbefore. The trial Judge, while dismissing the I.A.,
relied upon the decisions in G. Seethadevi v. R. Govindaraj
& Ors.1
, P. Thillai Selvan v. Shyna Paul & Anr.2
, and
Siddha Construction (P) Ltd. Rep. By its Power Agent,
Anjay Sharma, No.32 Guruswamy Road, Chetpet,
Chennai – 600031 v. M. Shanmugam & Ors.3
. Be it
clarified that the original plaintiff died during the pendency
of the case, i.e., on 15.01.2015, and her legal heirs have been
brought on record.
6. Being dissatisfied with the aforesaid order, the
appellants preferred C.R.P. (MD) No. 847 of 2015 (PD). It was
contended before the High Court that the learned trial Judge
has completely erred by rejecting the prayer inasmuch as the
plaintiff was seeking declaration for cancellation of the sale
deeds and hence, she was liable to pay the court fee under
1 (2011) 6 MLJ 399
2 (2014) 7 MLJ 732
3 (5) CTC 255 : (2006) 4 MLJ 924
6
Section 40 of the Act and not under Section 25 (d) of the said
Act. It was also urged that the trial court has completely
erred by placing reliance on Siddha Construction (supra).
The said stand of the revisionists was resisted by the
opposite parties contending, inter alia, that when a plea had
been advanced that she had not executed any sale deed and
the documents were fabricated, then the court fee is payable
as per Section 25(d) and Section 40 of the Act is not
attracted. That apart, it was also urged that the payment of
the court fee is a mixed question of fact and law and,
therefore, the plaint was not liable to be rejected by
entertaining a petition as regards evaluation of the suit
property. It is worthy to mention here that the issue of
limitation was raised before the trial court which was not
accepted as a ground for rejection of the plaint and the High
Court concurred with the same. We do not intend to address
the issue of limitation as that can be dealt with at the stage
of trial of the suit.
7. The High Court, as the impugned judgment would
show, referred to the averments in the plaint which were to
the effect that the sale deeds were not executed by their
7
predecessor-in-interest and she had not received
consideration and, therefore, the principle enunciated in G.
Seethadevi (supra) is squarely applicable to them. The High
Court further observed that on a perusal of the plaint, it is
manifest that the plaintiff had denied execution of the sale
deeds and in that context the court fee payable could be
under Section 25(d) and not under Section 40 of the Act.
8. Ms. V. Mohana, learned senior counsel appearing for
the appellants submits that the court fees has to be paid
under Section 40 of the Act when the plaintiff has sought
declaration for treating the documents as null and void,
which basically amounts to seeking the relief of cancellation
of the said documents. It is urged by her that when the
requisite court fees as payable under the Act is not paid, the
court has no other option but to reject the plaint and the
said factum is obvious from the assertions in the plaint.
9. Mr. G. Gowthaman and Mr. P. Soma Sundaram, learned
counsel for the respondent Nos. 1, 5, 6, 7 and 9 to 14 in
support of the order passed by the High Court contend that
the reasons ascribed by the High Court are absolutely
impregnable and in a case of the present nature, court fee
8
has to be paid under Section 25(d) of the Act. It is further
submitted by the learned counsel for the respondents that
the sale deeds executed in favour of the defendants were
fraudulent ones, for they were never executed by the original
plaintiff and hence, the court fees is required to be paid
under Section 25(d) of the Act.
10. Section 40 of the Act reads as under:
“40. 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 property, fee shall be
computed on the value of such property or share
or on the amount of the decree, whichever is less.
Explanation.-- A suit to set aside an award shall
9
be deemed to be a suit to set aside a decree
within the meaning of this section.”
[Emphasis added]
11. The singular issue that gains significance in this case is
that the original plaintiff was a party to the transaction.
Section 40 of the Act, as we notice, provides that in a suit for
cancellation of a document, the court fee has to be computed
on the value of the subject-matter of the suit and such value
shall be deemed to be the whole decree or other document
which is sought to be cancelled, the amount or value of the
property for which the decree was passed or other document
was executed. It also spelt out that a part of the decree or
other document is to be cancelled, such part of the amount
or value of the property. On a careful scrutiny of the
provision, it is limpid that it refers to the decree or other
document and in that context, it uses the word “value”. The
stand of the respondents before the High Court as well as
before this Court is that the documents were sought to be
declared as null and void on the ground of fraud and,
therefore, Section 40 of the Act would not be attracted. In
this regard, we may notice certain decisions of the High
Court of Madras.
10
12. In Siddha Construction (supra), the learned single
Judge has opined that for the value of the Court Fee payable
by the plaintiff the averments in the plaint alone are to be
considered. In the said case, it was observed that the plaintiffs
had not executed the sale deed and did not receive any
sale consideration and they had not alienated the property in
favour of any one. In the said case, the third defendant was
the petitioner in the revision petition. The suit was filed to
declare that the sale deed executed by the first defendant in
favour of the third defendant was null and void. The High
Court referred to the decision in Alamelu v. Manickammal4
wherein it has been held that the plaintiff is not a party to
the sale deed and when he seeks only a declaration that the
impugned sale deed is null and void, it is subject to the value
of the suit under Section 25(d) of the Act. The learned single
Judge also quoted a passage from Gnanambal Ammal v.
Kannappa Pillai5
wherein it has been held:
“Where a plaintiff's case is that a document is sham
and nominal, it need not be set aside, and the suit
for relief on that footing is not one for cancellation,
so as to attract the application of Section 40 of the
Madras Court-fees and Suits Valuation Act, 1955.
But even in such a case, if the plaintiff sues for can-
4 1979 (II) M.L.J. 8
5 1959(I) M.L.J. 353
11
cellation he would have to pay Court-fee on that relief,
whether it is necessary to have the deed cancelled
or not.”
13. The learned counsel for the appellant would submit that
the said decision is distinguishable as in the said case the
plaintiffs were not parties to the impugned sale deed.
14. In G. Seethadevi (supra), the High Court followed the
principle stated in Siddha Construction (supra) and held
thus:
“In the case on hand, it is to be seen that the case of
the Petitioner is that she has not executed Power of
Attorney in favour of one Bhaskaran so as to execute
the sale deed in favour of third parties. That
apart, it is contended that the said Bhaskaran is
unknown to the Petitioner and he is an employee of
the first Respondent in his petrol bunk. When such
statement has been made in the plaint, the court fee
that has to be payable on the relief that has been
sought for by the Petitioner viz., for declaration that
the sale deed dated 25.04.2008 is null and void and
not binding on the Petitioner, under Section 25(d) of
the Act and not under Section 40 of the Act. The Petitioner
has not admitted the execution of Power of
Attorney. The court below is not justified in directing
the Petitioner to pay the court fee under Section
40 of the Act. In the case relied on by the Respondents,
the Power of Attorney was admitted by the
Respondents/Plaintiffs therein and hence, this
Court in the said decision has directed the party to
pay the Court Fee under Section 40 of the Act.”
12
15. In K. Palaniswamy and another v. S.B. Subramani
and another6
, the learned single Judge took note of the facts
that the plaintiff had filed a suit for declaring the sale deeds
executed by the first defendant in favour of the second and
third defendants as null and void and unenforceable and
would not bind the plaintiff and for consequential permanent
injunction and an application under Order VII Rule 11 of
Civil Procedure Code (CPC) was filed as proper court fee had
not been paid and the suit was not properly valued and it deserved
to be rejected. In the said case, the second respondent
was the power of attorney of the first respondent and after
revocation of power of attorney, he had executed the sale
deed in favour of the defendants. The High Court took note
of the fact that when the first respondent was not a party to
the document, the relief sought for in the suit would not
come under Section 40 of the Act and accordingly, dismissed
the civil revision.
16. Chellakannu v. Kolanji7
, dealt with a civil revision
that was filed by the plaintiff assailing the order of the trial
court directing the plaintiff to pay the court fee under Section
6 2007 (1) CTC 300
7 AIR 2005 Mad 405
13
40 of the Act. The narration of the facts in the plaint was adverted
to by the High Court and for proper appreciation of
the controversy that has been raised in the instant case, we
may reproduce the same:
“… the Suit Property belonged to his FatherPichamuthu.
Pichamuthu had two wives, through
whom he had Three Sons. Earlier, there was Partition
in the family of the Plaintiff on 04.08.1971
wherein the Plaintiff and the Sons through the First
Wife have partitioned the family properties. There
was further partition between the Plaintiff and his
Brothers in 1977. Item 1 of the Suit Property was
allotted to one Poomalai. Items 2 and 4 -
S.Nos.155/3 and 339/13A were allotted to the
Plaintiff. First Defendant is the Wife of Shanmugam.
Third Defendant has been keeping the First Defendant
as his concubine. The Third Item was allotted
to the Plaintiff's Sister. The Third Defendant is the
Third Party. With the help of the First Defendant,
the Third Defendant secured the Suit Properties -
Item Nos.1 to 3 under a false representation that
the Plaintiff is executing a Will in favour of the First
Defendant. On that mis-representation, Plaintiff's
thumb impression was obtained and two Sale Deeds
dated 05.06.1995 and 23.08.1995 are said to have
been obtained. Those Sale Deeds obtained from the
Plaintiff under false representation is not binding on
the Plaintiff. Hence, the Plaintiff has filed the Suit
for Declaration that the Sale Deeds are not binding
on him and for Permanent Injunction, restraining
the Defendants from in any way interfering with the
Plaintiff's peaceful possession and enjoyment of the
Plaint Schedule Items I, II and IV.”
17. The further stand taken by the plaintiff was that the
sale deeds were obtained from him under fraud and hence,
14
suit had been filed for declaration that the sale deeds were
not binding on the plaintiff and since the suit was not filed
for cancellation of the sale deeds, the defendants could not
insist the plaintiff to pay the court fee under Section 40 of
the Act. The trial court recorded a find that the sale deeds
had been executed by the plaintiff himself and prima facie
the sale deeds were binding on the executants and when
there is a prayer to declare the sale deeds as invalid, it tantamounts
to seeking cancellation of sale deeds and therefore,
court fee payable would be governed by Section 40 of the Act.
18. The High Court posed two questions, namely, (i)
whether in the Suit filed for Declaration that the Sale Deeds
are invalid, Court Fee paid under Section 25(d) of the Act is
incorrect and (ii) whether the impugned order directing the
Plaintiff to pay the Court Fee under Section 40 of the Act suffers
from any infirmity warranting interference. Dealing with
the factual matrix, the High Court observed:
“Thus, the Plaintiff himself is a party to the Sale
Deed; when the Party himself seeks to get rid of the
Sale Deeds in substance it amounts to Cancellation
of Decree. The Plaintiff might seek to avoid the Sale
Deeds if he is not a party to the Sale Deeds. But,
since the Plaintiff himself is a party to the Sale
Deeds before he is suing for any relief, the Plaintiff
15
must first obtain the cancellation of the Sale
Deeds.”
And again:
“The word "Cancellation" implies that the persons
suing should be a party to the document. Strangers
are not bound by the documents and are not
obliged to sue for cancellation. When the party to
the document is suing, challenging the document,
he must first obtain cancellation before getting any
further relief. Whether cancellation is prayed for or
not or even it is impliedly sought for in substance,
the Suit is one for cancellation. in the present case,
when the Plaintiff attacks the Sale Deeds as having
been obtained from him under fraud and mis-representation
the Plaintiff cannot seek for any further
relief without setting aside the Sale Deeds.
x x x x x
The allegation on the Plaint in substance mounts to
cancellation of the document. Though the prayer is
couched in the form of seeking declaration that the
document is not valid and not binding, the relief in
substance indirectly amounts to seeking for cancellation
of the Sale Deed. Learned District Munsif was
right in ordering payment of Court Fee under Section
40 of the Act. This Revision Petition has no
merits and is bound to fail.”
Being of this view, the High Court dismissed the civil revision
and directed the plaintiff to pay court fee with further
stipulation that unless paid, plaint would stand rejected.
19. To appreciate the decision in P. Thillai Selvan (supra),
we have carefully gone through the same and we find the
16
High Court has referred to Order VII Rule 11 CPC, adverted
to the issue of payment of court fee both as a question of fact
and law and opined that the trial court has rightly rejected
the petition. Thus, the said decision does not really deal with
Section 40 of the Act.
20. In this context, we may profitably refer to the pronouncement
of this Court in Suhrid Singh alias Sardool
Singh v. Randhir Singh and others8
. In the said case, the
Court referred to several elaborate prayers contained in the
plaint and summarized the same. The Court took note of the
fact that the issue had come before the trial court which had
come to hold that prayers relating to the sale deeds
amounted to seeking cancellation of the sale deeds and,
therefore, ad volerem court fee was payable on the sale consideration
in respect of the sale deeds. The said view was affirmed
in the revision. The Court addressed the core issue
pertaining to court fee payable in regard to the prayer for a
declaration that the sale deeds were void and not “binding on
the coparcenary”, and for the consequential relief of joint
possession and injunction. After referring to the provisions
8 (2010) 12 SCC 112
17
of the Court Fees Act, 1870 as amended in Punjab (as the
controversy arose from the High Court of Punjab and
Haryana), the Court held:
“Where the executant of a deed wants it to be annulled,
he has to seek cancellation of the deed. But
if a non-executant seeks annulment of a deed, he
has to seek a declaration that the deed is invalid, or
non est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance,
can be brought out by the following illustration
relating to A and B, two brothers. A executes
a sale deed in favour of C. Subsequently A wants to
avoid the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the executant
of the deed, wants to avoid it, he has to sue for
a declaration that the deed executed by A is
invalid/void and non est/illegal and he is not bound
by it. In essence both may be 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, he has to pay ad valorem court fee on the consideration
stated in the sale deed. If B, who is a
non-executant, is in possession and sues for a declaration
that the deed is null or void and does not
bind him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of the Second
Schedule of the Act. But if B, a non-executant,
is not in possession, and he seeks not only a declaration
that the sale deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem court fee as provided under Section 7(iv)(c)
of the Act.
Section 7(iv)(c) provides that in suits for a
declaratory decree with consequential relief, the
court fee shall be computed according to the
18
amount at which the relief sought is valued in the
plaint. The proviso thereto makes it clear that where
the suit for declaratory decree with consequential
relief is with reference to any property, such valuation
shall not be less than the value of the property
calculated in the manner provided for by clause (v)
of Section 7.”
21. On the basis of the aforesaid analysis, the Court opined
that the view expressed by the trial court and the High Court
was not justified in holding that the court fee is required to
be paid on the sale consideration mentioned in the sale
deeds.
22. In Shailendra Bhardwaj and others v. Chandra Pal
and another9
, the Court was dealing with an issue whether
suit filed seeking a declaration that a will and a sale deed are
void resulting in their cancellation fell under Section 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
the Court Fees Act, 1870 for the purpose of valuation. Be it
noted, in the said case the trial court had taken the view that
the court fee had to be paid under Section 7(iv-A) and the
High Court has concurred with the same. The two-Judge
Bench took note of the provisions of the Court Fees Act, 1870
9 (2013) 1 SCC 579
19
as amended by the U.P. Amendment Act (Act 19 of 1938) and
after referring to the same in detail, held thus:
“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 a 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 a
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 a suit involving cancellation or adjudging/declaring
void or voidable a will or sale deed on the question
of payment of court fees, then Article 17(iii) of
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 a comparison between the Court
Fees Act and the U.P. Amendment Act, it is clear
that Section 7(iv-A) of the U.P. Amendment Act covers
suits for or involving cancellation or
adjudging/declaring null and void decree for money
or an instrument securing money or other property
having such value.”
23. The Court took note of the fact that the suit was filed after
the death of the testator and, therefore, on that basis observed
that the suit property covered by the will was required
to be valued. The Court further opined that since Section
7(iv-A) of the U.P. Amendment Act specifically provides that
20
payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring null and void decree for
money or an instrument, Article 17(iii) of Schedule II of the
Court Fees Act would not apply. The U.P. Amendment Act,
therefore, is applicable in the said case, despite the fact that
no consequential relief has been claimed. Consequently, in
terms of Section 7(iv-A) of the U.P. Amendment Act, the court
fees have to be computed according to the value of the subject-matter
and the trial court as well as the High Court have
correctly held so. The two-Judge Bench distinguished
Suhrid Singh’s case by expressing thus:
“10. We are of the view that the decision of this
Court in Suhrid Singh (supra) is not applicable to
the facts of the present case. First of all, this Court
had no occasion to examine the scope of the U.P.
Amendment Act. That was a case in which this
Court was dealing with Sections 7(iv)(c), (v) and
Schedule II Article 17(iii), as amended in the State of
Punjab. The position that we get in the State of Punjab
is entirely different from the State of U.P. and
the effect of the U.P. Amendment Act was not an issue
which arose for consideration in that case. Consequently,
in our view, the said judgment would not
apply to the present case.
11. The plaintiff, in the instant case, valued the suit
at Rs 30 lakhs for the purpose of pecuniary jurisdiction.
However, for the purpose of court fee, the
plaintiff paid a fixed court fee of Rs 200 under Article
17(iii) of Schedule II of the Court Fees Act. The
plaintiff had not noticed the fact that the abovemen-
21
tioned article stood amended by the State, by
adding the words “not otherwise provided for by this
Act”. Since Section 7(iv-A) of the U.P. Amended Act
specifically provides for payment of court fee in case
where the suit is for or involving cancellation or adjudging/declaring
void or voidable an instrument
securing property having money value, Article 17(iii)
of Schedule II of the Court Fees Act shall not be applicable.”
24. The decisions in Suhrid Singh (supra) and Shailendra
Bhardwaj (supra) have to be understood in their proper
perspective. There was U.P. Amendment in Shailendra
Bhardwaj (supra). In Suhrid Singh (supra) the Court was
dealing with a different situation. Be that as it may, the valuation
of a suit and payment of court fee shall depend upon
the special provision in a State if provided for. The view taken
by the Madras High Court in Chellakannu (supra), in our
considered opinion, is the correct exposition of law.
25. Another aspect needs to be noted. As we notice from
the impugned judgment, the High Court has expressed the
view that payment of the court fee is a mixed question of fact
and law and that has to be decided on the basis of evidence.
26. In this context, we have been commended to the decision
in A. Nawab John and others v. V.N. Subra-
22
maniyam10. On a careful perusal of the said decision, we
find that the said authority nowhere addresses the issue that
is involved in the case at hand. Proper valuation of the subject
matter or under valuation is an aspect which can be contested
by the defendant, but the said contest is limited. In
this regard, the two-Judge Bench has reproduced two passages
from Rathnavarmaraja v. Vimla11 which we think
seemly to reproduce:
“The Court Fees Act was enacted to collect revenue
for the benefit of the State and not to arm a contesting
party with a weapon of defence to obstruct the
trial of an action. By recognising that the defendant
was entitled to contest the valuation of the properties
in dispute as if it were a matter in issue between
him and the plaintiff and by entertaining petitions
preferred by the defendant to the High Court
in exercise of its revisional jurisdiction against the
order adjudging court fee payable on the plaint, all
progress in the suit for the trial of the dispute on
the merits has been effectively frustrated for nearly
five years. We fail to appreciate what grievance the
defendant can make by seeking to invoke the revisional
jurisdiction of the High Court on the question
whether the plaintiff has paid adequate court fee on
his plaint. Whether proper court fee is paid on a
plaint is primarily a question between the plaintiff
and the State. How by an order relating to the adequacy
of the court fee paid by the plaintiff, the defendant
may feel aggrieved, it is difficult to appreciate.
Again, the jurisdiction in revision exercised by
the High Court under Section 115 of the Code of
Civil Procedure is strictly conditioned by clauses (a)
10 (2012) 7 SCC 738
11 AIR 1961 SC 1299
23
to (c) thereof and may be invoked on the ground of
refusal to exercise jurisdiction vested in the subordinate
court or assumption of jurisdiction which the
court does not possess or on the ground that the
court has acted illegally or with material irregularity
in the exercise of its jurisdiction. The defendant who
may believe and even honestly that proper court fee
has not been paid by the plaintiff has still no right
to move the superior courts by appeal or in revision
against the order adjudging payment of court fee
payable on the plaint. But counsel for the defendant
says that by Act 14 of 1955 enacted by the Madras
Legislature which applied to the suit in question,
the defendant has been invested with a right not
only to contest in the trial court the issue whether
adequate court fee has been paid by the plaintiff,
but also to move the High Court in revision if an order
contrary to his submission is passed by the
court. Reliance in support of that contention is
placed upon sub-section (2) of Section 12. That subsection,
insofar as it is material, provides:
x x x x
But this section only enables the defendant to raise
a contention as to the proper court fee payable on a
plaint and to assist the court in arriving at a just decision
on that question. Our attention has not been
invited to any provision of the Madras Court Fees
Act or any other statute which enables the defendant
to move the High Court in revision against the
decision of the court of first instance on the matter
of court fee payable in a plaint. The Act, it is true by
Section 19 provides that for the purpose of deciding
whether the subject-matter of the suit or other proceeding
has been properly valued or whether the fee
paid is sufficient, the court may hold such enquiry
as it considers proper and issue a commission to
any other person directing him to make such local
or other investigation as may be necessary and report
thereon. The anxiety of the legislature to collect
court fee due from the litigant is manifest from the
detailed provisions made in Chapter III of the Act,
but those provisions do not arm the defendant with
24
a weapon of technicality to obstruct the progress of
the suit by approaching the High Court in revision
against an order determining the court fee payable.”
(emphasis supplied)
27. On a perusal of the decision in Rathnavarmaraja
(supra), we find the controversy had arisen with regard to
proper valuation and the stand of the defendant was that the
court fee had not been properly paid and in that context, the
Court has held what as we have reproduced hereinabove.
The issue being different, the said decision is distinguishable.
We may reiterate that proper valuation of the suit property
stands on a different footing than applicability of a particular
provision of an Act under which court fee is payable and in
such a situation, it is not correct to say that it has to be determined
on the basis of evidence and it is a matter for the
benefit of the revenue and the State and not to arm a contesting
party with a weapon of defence to obstruct the trial of
an action. It is because the Act empowers the defendant to
raise the plea of jurisdiction on a different yardstick.
28. In the ultimate anlaysis, we arrive at the conclusion
that the appeal is to be allowed, the impugned orders passed
by the trial court and the High Court, being unsustainable
25
are to be set aside and we so direct. The trial court is
directed to grant three months time to the plaintiff to pay the
requisite court fee. There shall be no order as to costs.
.….............................................J.
[Dipak Misra]
.…..............................................J.
[A.M. Khanwilkar]
...….....................................J.
[Mohan M. Shantanagoudar]
New Delhi;
August 10, 2017.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3396 OF 2017
(Arising out of SLP (C) No.33692 of 2016)
J. Vasanthi & Ors. … Appellant(s)
VERSUS
N. Ramani Kanthammal (D) Rep. by …Respondent(s)
LRs. & Ors.
J U D G M E N T
Dipak Misra, J.
This appeal, by special leave, is at the instance of the
appellants calling in question the legal propriety of the
judgment and order dated 16th March, 2016 passed by the
High Court of Judicature at Madras, Bench at Madurai in
C.R.P. (MD) No. 847 of 2015 (PD), whereby the High Court
has affirmed the order passed by the Principal District
Judge, Dindigul in I.A. No. 94 of 2014 in Original Suit No. 20
of 2014 rejecting the prayer of the applicant/defendant for
dismissal of the Original Suit on the ground of payment of
2
inadequate court fee by placing reliance on a wrong provision
of the Tamil Nadu Court Fees and Suit Valuation Act, 1955
(for brevity, “the Act”).
2. The facts in a nutshell are that the “A Schedule property”,
as appended to the plaint, was purchased by the plaintiff’s
father, late Raja Chidambara Reddiyar from one Balasundara
Iyyer on 12.08.1943 through document No. 412/1943 and
also “B schedule property” was purchased by him from one
Swaminatha Iyyer on 09.08.1943 through document No.
238/1943. After the purchase, he got the patta transferred in
his name and paid the government taxes and enjoyed the
properties. On 21.02.1948 through document No. 596/1948
plaintiff’s father made a sale of the A and B Schedule
properties along with some other properties in favour of
Sellammal w/o Rangoon Krishnasamy Reddiyar. As averred
in the plaint, the A and B schedule properties and other
properties which were sold, were again purchased by the
father of the plaintiff on 19.04.1948 through document No.
1469/1948 from Sellammal and, thereafter, changed the
patta in his name bearing patta Nos. 621, 705, 2032 and
2133, and held the suit A and B Schedule properties during
3
his life time. As pleaded, the plaintiff’s father died on
07.10.1986 leaving behind the plaintiff and her sister Gowri
as his legal heirs. The 1st defendant is the son of the
plaintiff. The 2nd defendant is the husband of the 3rd
defendant and the 4th defendant is their son. The 5th
defendant is the father of 3rd and 6th defendants and
father-in-law of the 2nd defendant. The suit was basically
filed for seeking declaration that the sale deeds dated
30.08.1991, 23.03.1993, 04.01.1994, 10.06.2002 and
11.03.2004 as per document Nos. Document Nos.922/1991,
Document No.330/1993, Document No.2395/1994,
Document No.1239/2002 and Document No. 214/2004,
respectively as null and void and for permanent injunction.
3. The further narration of the factual score is that as
regards the “A Schedule property”, the plaintiff asked for a
loan of Rs. 1 lakh from the 2nd defendant, Janakiraman, who
in turn, suggested that an agreement for sale should be
made in favour of his brother-in-law, the 6th defendant,
Saravanaprabhu. The plaintiff agreed to make an agreement
for sale as proposed by the 2nd defendant. As per the said
agreement an amount of Rs. 50,000/- was received by the
4
plaintiff and her son, the 1st defendant and executed an
agreement for sell.
4. It is claimed that at that time, the 2nd defendant
obtained signatures in blank papers. Since the document
was for security which was made in favour of the 6th
defendant on the request of the 2nd defendant, no action was
taken regarding document No. 805/91. It is further
contended that the A and B Schedule properties were
maintained by the plaintiff and her sister in the name of their
father only. When the plaintiff was making arrangements for
partition of the A and B Schedule properties on 10.03.2011,
it came to their knowledge that the defendant Nos. 2 to 6 had
created fabricated documents on the basis of the document
No.805/91. It is urged in the plaint that the 2nd defendant
was a Sub-Registrar and taking advantage of his position the
sale agreement made in favour of the 6th defendant, who is
the brother-in-law of the 2nd defendant, fabricated sale deeds
were created by the defendant Nos. 2 to 6 as if the plaintiff
had executed the sale deed in favour of the 6th defendant.
5. The defendants filed I.A. No.94 of 2014 in O.S. No.20 of
2014 praying for directing the plaintiff to pay the court fees
5
under Section 40 of the Act failing which to reject the plaint
since the plaint was highly undervalued. The said
application for rejection of the plaint preferred under Order
VII Rule 11 of the Code of Civil Procedure was dismissed by
the Principal District Judge, Dindigul, as mentioned
hereinbefore. The trial Judge, while dismissing the I.A.,
relied upon the decisions in G. Seethadevi v. R. Govindaraj
& Ors.1
, P. Thillai Selvan v. Shyna Paul & Anr.2
, and
Siddha Construction (P) Ltd. Rep. By its Power Agent,
Anjay Sharma, No.32 Guruswamy Road, Chetpet,
Chennai – 600031 v. M. Shanmugam & Ors.3
. Be it
clarified that the original plaintiff died during the pendency
of the case, i.e., on 15.01.2015, and her legal heirs have been
brought on record.
6. Being dissatisfied with the aforesaid order, the
appellants preferred C.R.P. (MD) No. 847 of 2015 (PD). It was
contended before the High Court that the learned trial Judge
has completely erred by rejecting the prayer inasmuch as the
plaintiff was seeking declaration for cancellation of the sale
deeds and hence, she was liable to pay the court fee under
1 (2011) 6 MLJ 399
2 (2014) 7 MLJ 732
3 (5) CTC 255 : (2006) 4 MLJ 924
6
Section 40 of the Act and not under Section 25 (d) of the said
Act. It was also urged that the trial court has completely
erred by placing reliance on Siddha Construction (supra).
The said stand of the revisionists was resisted by the
opposite parties contending, inter alia, that when a plea had
been advanced that she had not executed any sale deed and
the documents were fabricated, then the court fee is payable
as per Section 25(d) and Section 40 of the Act is not
attracted. That apart, it was also urged that the payment of
the court fee is a mixed question of fact and law and,
therefore, the plaint was not liable to be rejected by
entertaining a petition as regards evaluation of the suit
property. It is worthy to mention here that the issue of
limitation was raised before the trial court which was not
accepted as a ground for rejection of the plaint and the High
Court concurred with the same. We do not intend to address
the issue of limitation as that can be dealt with at the stage
of trial of the suit.
7. The High Court, as the impugned judgment would
show, referred to the averments in the plaint which were to
the effect that the sale deeds were not executed by their
7
predecessor-in-interest and she had not received
consideration and, therefore, the principle enunciated in G.
Seethadevi (supra) is squarely applicable to them. The High
Court further observed that on a perusal of the plaint, it is
manifest that the plaintiff had denied execution of the sale
deeds and in that context the court fee payable could be
under Section 25(d) and not under Section 40 of the Act.
8. Ms. V. Mohana, learned senior counsel appearing for
the appellants submits that the court fees has to be paid
under Section 40 of the Act when the plaintiff has sought
declaration for treating the documents as null and void,
which basically amounts to seeking the relief of cancellation
of the said documents. It is urged by her that when the
requisite court fees as payable under the Act is not paid, the
court has no other option but to reject the plaint and the
said factum is obvious from the assertions in the plaint.
9. Mr. G. Gowthaman and Mr. P. Soma Sundaram, learned
counsel for the respondent Nos. 1, 5, 6, 7 and 9 to 14 in
support of the order passed by the High Court contend that
the reasons ascribed by the High Court are absolutely
impregnable and in a case of the present nature, court fee
8
has to be paid under Section 25(d) of the Act. It is further
submitted by the learned counsel for the respondents that
the sale deeds executed in favour of the defendants were
fraudulent ones, for they were never executed by the original
plaintiff and hence, the court fees is required to be paid
under Section 25(d) of the Act.
10. Section 40 of the Act reads as under:
“40. 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 property, fee shall be
computed on the value of such property or share
or on the amount of the decree, whichever is less.
Explanation.-- A suit to set aside an award shall
9
be deemed to be a suit to set aside a decree
within the meaning of this section.”
[Emphasis added]
11. The singular issue that gains significance in this case is
that the original plaintiff was a party to the transaction.
Section 40 of the Act, as we notice, provides that in a suit for
cancellation of a document, the court fee has to be computed
on the value of the subject-matter of the suit and such value
shall be deemed to be the whole decree or other document
which is sought to be cancelled, the amount or value of the
property for which the decree was passed or other document
was executed. It also spelt out that a part of the decree or
other document is to be cancelled, such part of the amount
or value of the property. On a careful scrutiny of the
provision, it is limpid that it refers to the decree or other
document and in that context, it uses the word “value”. The
stand of the respondents before the High Court as well as
before this Court is that the documents were sought to be
declared as null and void on the ground of fraud and,
therefore, Section 40 of the Act would not be attracted. In
this regard, we may notice certain decisions of the High
Court of Madras.
10
12. In Siddha Construction (supra), the learned single
Judge has opined that for the value of the Court Fee payable
by the plaintiff the averments in the plaint alone are to be
considered. In the said case, it was observed that the plaintiffs
had not executed the sale deed and did not receive any
sale consideration and they had not alienated the property in
favour of any one. In the said case, the third defendant was
the petitioner in the revision petition. The suit was filed to
declare that the sale deed executed by the first defendant in
favour of the third defendant was null and void. The High
Court referred to the decision in Alamelu v. Manickammal4
wherein it has been held that the plaintiff is not a party to
the sale deed and when he seeks only a declaration that the
impugned sale deed is null and void, it is subject to the value
of the suit under Section 25(d) of the Act. The learned single
Judge also quoted a passage from Gnanambal Ammal v.
Kannappa Pillai5
wherein it has been held:
“Where a plaintiff's case is that a document is sham
and nominal, it need not be set aside, and the suit
for relief on that footing is not one for cancellation,
so as to attract the application of Section 40 of the
Madras Court-fees and Suits Valuation Act, 1955.
But even in such a case, if the plaintiff sues for can-
4 1979 (II) M.L.J. 8
5 1959(I) M.L.J. 353
11
cellation he would have to pay Court-fee on that relief,
whether it is necessary to have the deed cancelled
or not.”
13. The learned counsel for the appellant would submit that
the said decision is distinguishable as in the said case the
plaintiffs were not parties to the impugned sale deed.
14. In G. Seethadevi (supra), the High Court followed the
principle stated in Siddha Construction (supra) and held
thus:
“In the case on hand, it is to be seen that the case of
the Petitioner is that she has not executed Power of
Attorney in favour of one Bhaskaran so as to execute
the sale deed in favour of third parties. That
apart, it is contended that the said Bhaskaran is
unknown to the Petitioner and he is an employee of
the first Respondent in his petrol bunk. When such
statement has been made in the plaint, the court fee
that has to be payable on the relief that has been
sought for by the Petitioner viz., for declaration that
the sale deed dated 25.04.2008 is null and void and
not binding on the Petitioner, under Section 25(d) of
the Act and not under Section 40 of the Act. The Petitioner
has not admitted the execution of Power of
Attorney. The court below is not justified in directing
the Petitioner to pay the court fee under Section
40 of the Act. In the case relied on by the Respondents,
the Power of Attorney was admitted by the
Respondents/Plaintiffs therein and hence, this
Court in the said decision has directed the party to
pay the Court Fee under Section 40 of the Act.”
12
15. In K. Palaniswamy and another v. S.B. Subramani
and another6
, the learned single Judge took note of the facts
that the plaintiff had filed a suit for declaring the sale deeds
executed by the first defendant in favour of the second and
third defendants as null and void and unenforceable and
would not bind the plaintiff and for consequential permanent
injunction and an application under Order VII Rule 11 of
Civil Procedure Code (CPC) was filed as proper court fee had
not been paid and the suit was not properly valued and it deserved
to be rejected. In the said case, the second respondent
was the power of attorney of the first respondent and after
revocation of power of attorney, he had executed the sale
deed in favour of the defendants. The High Court took note
of the fact that when the first respondent was not a party to
the document, the relief sought for in the suit would not
come under Section 40 of the Act and accordingly, dismissed
the civil revision.
16. Chellakannu v. Kolanji7
, dealt with a civil revision
that was filed by the plaintiff assailing the order of the trial
court directing the plaintiff to pay the court fee under Section
6 2007 (1) CTC 300
7 AIR 2005 Mad 405
13
40 of the Act. The narration of the facts in the plaint was adverted
to by the High Court and for proper appreciation of
the controversy that has been raised in the instant case, we
may reproduce the same:
“… the Suit Property belonged to his FatherPichamuthu.
Pichamuthu had two wives, through
whom he had Three Sons. Earlier, there was Partition
in the family of the Plaintiff on 04.08.1971
wherein the Plaintiff and the Sons through the First
Wife have partitioned the family properties. There
was further partition between the Plaintiff and his
Brothers in 1977. Item 1 of the Suit Property was
allotted to one Poomalai. Items 2 and 4 -
S.Nos.155/3 and 339/13A were allotted to the
Plaintiff. First Defendant is the Wife of Shanmugam.
Third Defendant has been keeping the First Defendant
as his concubine. The Third Item was allotted
to the Plaintiff's Sister. The Third Defendant is the
Third Party. With the help of the First Defendant,
the Third Defendant secured the Suit Properties -
Item Nos.1 to 3 under a false representation that
the Plaintiff is executing a Will in favour of the First
Defendant. On that mis-representation, Plaintiff's
thumb impression was obtained and two Sale Deeds
dated 05.06.1995 and 23.08.1995 are said to have
been obtained. Those Sale Deeds obtained from the
Plaintiff under false representation is not binding on
the Plaintiff. Hence, the Plaintiff has filed the Suit
for Declaration that the Sale Deeds are not binding
on him and for Permanent Injunction, restraining
the Defendants from in any way interfering with the
Plaintiff's peaceful possession and enjoyment of the
Plaint Schedule Items I, II and IV.”
17. The further stand taken by the plaintiff was that the
sale deeds were obtained from him under fraud and hence,
14
suit had been filed for declaration that the sale deeds were
not binding on the plaintiff and since the suit was not filed
for cancellation of the sale deeds, the defendants could not
insist the plaintiff to pay the court fee under Section 40 of
the Act. The trial court recorded a find that the sale deeds
had been executed by the plaintiff himself and prima facie
the sale deeds were binding on the executants and when
there is a prayer to declare the sale deeds as invalid, it tantamounts
to seeking cancellation of sale deeds and therefore,
court fee payable would be governed by Section 40 of the Act.
18. The High Court posed two questions, namely, (i)
whether in the Suit filed for Declaration that the Sale Deeds
are invalid, Court Fee paid under Section 25(d) of the Act is
incorrect and (ii) whether the impugned order directing the
Plaintiff to pay the Court Fee under Section 40 of the Act suffers
from any infirmity warranting interference. Dealing with
the factual matrix, the High Court observed:
“Thus, the Plaintiff himself is a party to the Sale
Deed; when the Party himself seeks to get rid of the
Sale Deeds in substance it amounts to Cancellation
of Decree. The Plaintiff might seek to avoid the Sale
Deeds if he is not a party to the Sale Deeds. But,
since the Plaintiff himself is a party to the Sale
Deeds before he is suing for any relief, the Plaintiff
15
must first obtain the cancellation of the Sale
Deeds.”
And again:
“The word "Cancellation" implies that the persons
suing should be a party to the document. Strangers
are not bound by the documents and are not
obliged to sue for cancellation. When the party to
the document is suing, challenging the document,
he must first obtain cancellation before getting any
further relief. Whether cancellation is prayed for or
not or even it is impliedly sought for in substance,
the Suit is one for cancellation. in the present case,
when the Plaintiff attacks the Sale Deeds as having
been obtained from him under fraud and mis-representation
the Plaintiff cannot seek for any further
relief without setting aside the Sale Deeds.
x x x x x
The allegation on the Plaint in substance mounts to
cancellation of the document. Though the prayer is
couched in the form of seeking declaration that the
document is not valid and not binding, the relief in
substance indirectly amounts to seeking for cancellation
of the Sale Deed. Learned District Munsif was
right in ordering payment of Court Fee under Section
40 of the Act. This Revision Petition has no
merits and is bound to fail.”
Being of this view, the High Court dismissed the civil revision
and directed the plaintiff to pay court fee with further
stipulation that unless paid, plaint would stand rejected.
19. To appreciate the decision in P. Thillai Selvan (supra),
we have carefully gone through the same and we find the
16
High Court has referred to Order VII Rule 11 CPC, adverted
to the issue of payment of court fee both as a question of fact
and law and opined that the trial court has rightly rejected
the petition. Thus, the said decision does not really deal with
Section 40 of the Act.
20. In this context, we may profitably refer to the pronouncement
of this Court in Suhrid Singh alias Sardool
Singh v. Randhir Singh and others8
. In the said case, the
Court referred to several elaborate prayers contained in the
plaint and summarized the same. The Court took note of the
fact that the issue had come before the trial court which had
come to hold that prayers relating to the sale deeds
amounted to seeking cancellation of the sale deeds and,
therefore, ad volerem court fee was payable on the sale consideration
in respect of the sale deeds. The said view was affirmed
in the revision. The Court addressed the core issue
pertaining to court fee payable in regard to the prayer for a
declaration that the sale deeds were void and not “binding on
the coparcenary”, and for the consequential relief of joint
possession and injunction. After referring to the provisions
8 (2010) 12 SCC 112
17
of the Court Fees Act, 1870 as amended in Punjab (as the
controversy arose from the High Court of Punjab and
Haryana), the Court held:
“Where the executant of a deed wants it to be annulled,
he has to seek cancellation of the deed. But
if a non-executant seeks annulment of a deed, he
has to seek a declaration that the deed is invalid, or
non est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance,
can be brought out by the following illustration
relating to A and B, two brothers. A executes
a sale deed in favour of C. Subsequently A wants to
avoid the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the executant
of the deed, wants to avoid it, he has to sue for
a declaration that the deed executed by A is
invalid/void and non est/illegal and he is not bound
by it. In essence both may be 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, he has to pay ad valorem court fee on the consideration
stated in the sale deed. If B, who is a
non-executant, is in possession and sues for a declaration
that the deed is null or void and does not
bind him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of the Second
Schedule of the Act. But if B, a non-executant,
is not in possession, and he seeks not only a declaration
that the sale deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem court fee as provided under Section 7(iv)(c)
of the Act.
Section 7(iv)(c) provides that in suits for a
declaratory decree with consequential relief, the
court fee shall be computed according to the
18
amount at which the relief sought is valued in the
plaint. The proviso thereto makes it clear that where
the suit for declaratory decree with consequential
relief is with reference to any property, such valuation
shall not be less than the value of the property
calculated in the manner provided for by clause (v)
of Section 7.”
21. On the basis of the aforesaid analysis, the Court opined
that the view expressed by the trial court and the High Court
was not justified in holding that the court fee is required to
be paid on the sale consideration mentioned in the sale
deeds.
22. In Shailendra Bhardwaj and others v. Chandra Pal
and another9
, the Court was dealing with an issue whether
suit filed seeking a declaration that a will and a sale deed are
void resulting in their cancellation fell under Section 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
the Court Fees Act, 1870 for the purpose of valuation. Be it
noted, in the said case the trial court had taken the view that
the court fee had to be paid under Section 7(iv-A) and the
High Court has concurred with the same. The two-Judge
Bench took note of the provisions of the Court Fees Act, 1870
9 (2013) 1 SCC 579
19
as amended by the U.P. Amendment Act (Act 19 of 1938) and
after referring to the same in detail, held thus:
“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 a 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 a
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 a suit involving cancellation or adjudging/declaring
void or voidable a will or sale deed on the question
of payment of court fees, then Article 17(iii) of
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 a comparison between the Court
Fees Act and the U.P. Amendment Act, it is clear
that Section 7(iv-A) of the U.P. Amendment Act covers
suits for or involving cancellation or
adjudging/declaring null and void decree for money
or an instrument securing money or other property
having such value.”
23. The Court took note of the fact that the suit was filed after
the death of the testator and, therefore, on that basis observed
that the suit property covered by the will was required
to be valued. The Court further opined that since Section
7(iv-A) of the U.P. Amendment Act specifically provides that
20
payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring null and void decree for
money or an instrument, Article 17(iii) of Schedule II of the
Court Fees Act would not apply. The U.P. Amendment Act,
therefore, is applicable in the said case, despite the fact that
no consequential relief has been claimed. Consequently, in
terms of Section 7(iv-A) of the U.P. Amendment Act, the court
fees have to be computed according to the value of the subject-matter
and the trial court as well as the High Court have
correctly held so. The two-Judge Bench distinguished
Suhrid Singh’s case by expressing thus:
“10. We are of the view that the decision of this
Court in Suhrid Singh (supra) is not applicable to
the facts of the present case. First of all, this Court
had no occasion to examine the scope of the U.P.
Amendment Act. That was a case in which this
Court was dealing with Sections 7(iv)(c), (v) and
Schedule II Article 17(iii), as amended in the State of
Punjab. The position that we get in the State of Punjab
is entirely different from the State of U.P. and
the effect of the U.P. Amendment Act was not an issue
which arose for consideration in that case. Consequently,
in our view, the said judgment would not
apply to the present case.
11. The plaintiff, in the instant case, valued the suit
at Rs 30 lakhs for the purpose of pecuniary jurisdiction.
However, for the purpose of court fee, the
plaintiff paid a fixed court fee of Rs 200 under Article
17(iii) of Schedule II of the Court Fees Act. The
plaintiff had not noticed the fact that the abovemen-
21
tioned article stood amended by the State, by
adding the words “not otherwise provided for by this
Act”. Since Section 7(iv-A) of the U.P. Amended Act
specifically provides for payment of court fee in case
where the suit is for or involving cancellation or adjudging/declaring
void or voidable an instrument
securing property having money value, Article 17(iii)
of Schedule II of the Court Fees Act shall not be applicable.”
24. The decisions in Suhrid Singh (supra) and Shailendra
Bhardwaj (supra) have to be understood in their proper
perspective. There was U.P. Amendment in Shailendra
Bhardwaj (supra). In Suhrid Singh (supra) the Court was
dealing with a different situation. Be that as it may, the valuation
of a suit and payment of court fee shall depend upon
the special provision in a State if provided for. The view taken
by the Madras High Court in Chellakannu (supra), in our
considered opinion, is the correct exposition of law.
25. Another aspect needs to be noted. As we notice from
the impugned judgment, the High Court has expressed the
view that payment of the court fee is a mixed question of fact
and law and that has to be decided on the basis of evidence.
26. In this context, we have been commended to the decision
in A. Nawab John and others v. V.N. Subra-
22
maniyam10. On a careful perusal of the said decision, we
find that the said authority nowhere addresses the issue that
is involved in the case at hand. Proper valuation of the subject
matter or under valuation is an aspect which can be contested
by the defendant, but the said contest is limited. In
this regard, the two-Judge Bench has reproduced two passages
from Rathnavarmaraja v. Vimla11 which we think
seemly to reproduce:
“The Court Fees Act was enacted to collect revenue
for the benefit of the State and not to arm a contesting
party with a weapon of defence to obstruct the
trial of an action. By recognising that the defendant
was entitled to contest the valuation of the properties
in dispute as if it were a matter in issue between
him and the plaintiff and by entertaining petitions
preferred by the defendant to the High Court
in exercise of its revisional jurisdiction against the
order adjudging court fee payable on the plaint, all
progress in the suit for the trial of the dispute on
the merits has been effectively frustrated for nearly
five years. We fail to appreciate what grievance the
defendant can make by seeking to invoke the revisional
jurisdiction of the High Court on the question
whether the plaintiff has paid adequate court fee on
his plaint. Whether proper court fee is paid on a
plaint is primarily a question between the plaintiff
and the State. How by an order relating to the adequacy
of the court fee paid by the plaintiff, the defendant
may feel aggrieved, it is difficult to appreciate.
Again, the jurisdiction in revision exercised by
the High Court under Section 115 of the Code of
Civil Procedure is strictly conditioned by clauses (a)
10 (2012) 7 SCC 738
11 AIR 1961 SC 1299
23
to (c) thereof and may be invoked on the ground of
refusal to exercise jurisdiction vested in the subordinate
court or assumption of jurisdiction which the
court does not possess or on the ground that the
court has acted illegally or with material irregularity
in the exercise of its jurisdiction. The defendant who
may believe and even honestly that proper court fee
has not been paid by the plaintiff has still no right
to move the superior courts by appeal or in revision
against the order adjudging payment of court fee
payable on the plaint. But counsel for the defendant
says that by Act 14 of 1955 enacted by the Madras
Legislature which applied to the suit in question,
the defendant has been invested with a right not
only to contest in the trial court the issue whether
adequate court fee has been paid by the plaintiff,
but also to move the High Court in revision if an order
contrary to his submission is passed by the
court. Reliance in support of that contention is
placed upon sub-section (2) of Section 12. That subsection,
insofar as it is material, provides:
x x x x
But this section only enables the defendant to raise
a contention as to the proper court fee payable on a
plaint and to assist the court in arriving at a just decision
on that question. Our attention has not been
invited to any provision of the Madras Court Fees
Act or any other statute which enables the defendant
to move the High Court in revision against the
decision of the court of first instance on the matter
of court fee payable in a plaint. The Act, it is true by
Section 19 provides that for the purpose of deciding
whether the subject-matter of the suit or other proceeding
has been properly valued or whether the fee
paid is sufficient, the court may hold such enquiry
as it considers proper and issue a commission to
any other person directing him to make such local
or other investigation as may be necessary and report
thereon. The anxiety of the legislature to collect
court fee due from the litigant is manifest from the
detailed provisions made in Chapter III of the Act,
but those provisions do not arm the defendant with
24
a weapon of technicality to obstruct the progress of
the suit by approaching the High Court in revision
against an order determining the court fee payable.”
(emphasis supplied)
27. On a perusal of the decision in Rathnavarmaraja
(supra), we find the controversy had arisen with regard to
proper valuation and the stand of the defendant was that the
court fee had not been properly paid and in that context, the
Court has held what as we have reproduced hereinabove.
The issue being different, the said decision is distinguishable.
We may reiterate that proper valuation of the suit property
stands on a different footing than applicability of a particular
provision of an Act under which court fee is payable and in
such a situation, it is not correct to say that it has to be determined
on the basis of evidence and it is a matter for the
benefit of the revenue and the State and not to arm a contesting
party with a weapon of defence to obstruct the trial of
an action. It is because the Act empowers the defendant to
raise the plea of jurisdiction on a different yardstick.
28. In the ultimate anlaysis, we arrive at the conclusion
that the appeal is to be allowed, the impugned orders passed
by the trial court and the High Court, being unsustainable
25
are to be set aside and we so direct. The trial court is
directed to grant three months time to the plaintiff to pay the
requisite court fee. There shall be no order as to costs.
.….............................................J.
[Dipak Misra]
.…..............................................J.
[A.M. Khanwilkar]
...….....................................J.
[Mohan M. Shantanagoudar]
New Delhi;
August 10, 2017.
