Manish Mathur, J
Heard Mr. Pritish Kumar assisted by Mr. Shantanu Gupta Advocate learned counsel for petitioner, Mr. S.K. Kalia Senior Advocate assisted by Mr. Akber Ahmad learned counsel for opposite party No.1 and Mr. Abhinav Bhattacharya learned counsel for opposite parties 3 and 4.
Learned counsel for party admit that the opposite party no.2 is in relation to the opposite parties no.3 and 4, who are already represented and notices may be dispensed with. In view of aforesaid, notices to opposite party no.2 stand dispensed with and case is being adjudicated at admission stage with consent of learned counsel for parties since no questions of fact are involved.
Civil Revision under Section 115 of the Code Civil Procedure has been filed against order dated 3rd December, 2022 passed in regular suit No. 342 of 2015 whereby preliminary issue No.3 regarding valuation of suit and court fees paid thereon has been decided against revisionist-plaintiff.
Learned counsel for revisionist submits that revisionist had filed suit for partition of properties indicated in the plaint which included one residential plot, one commercial plot and a building. It is submitted that the suit was valued at Rs.2,72,12,403/- and court fees thereon was paid at 20 times the annual rental value in terms of Section 7(v)(I)(c) of the Court Fees Act, 1870 with regard to the two plots and similarly court fees was paid as per nagar palika rental in terms of section 7(v)(II). It is submitted that aforesaid method of determining market value of the properties is one of the modes of determination thereof which has been an accepted principle in various pronouncements as per U.P. Amendment to Court Fees Act, 1870.
It is submitted that however the trial court by means of impugned order while holding court fees to be payable in terms of Section 7(v)(I)(c) and Section 7(v)(II) has found the courts fees to be deficient on the ground that the revisionist-plaintiff was required to pay courts fees on the market value of the properties. It is further submitted that while indicating court fees to be paid in terms of aforesaid provisions, the impugned order does not indicate as to how the term market value has been determined by the trial court and even the short fall of court fees has not been indicated in the order leaving it to the wisdom of the revisionist-plaintiff to make good the deficiency. As such it is submitted that not only is the order impugned against provisions of Section 7 of the Act but also against settled law thereupon and is also vague.
Learned counsel has further submitted that it is admitted that trial court in present case has unlimited pecuniary jurisdiction and therefore the opposite parties-defendants do not have any right or locus to challenge the court fees paid by revisionist-plaintiff.
Learned Senior counsel appearing on behalf of opposite parties has refuted submissions advanced by learned counsel for revisionist with the submission that although the term 'market value' has not been defined any where in the Act but the same can not be taken to be the annual rental value particularly since the plots in question were never let out and is in fact required to be determined as per the circle rate notified by the Collector. It has been further submitted that suit being for partition of properties, there is no concept of plaintiff and defendant and all the parties to the proceedings have equal interest in the properties and therefore the defendant has a locus to raise objections regarding under valuation of suit and deficiency of court fees.
It has also been submitted that for proper determination of market value of the suit properties, the opposite parties -defendants had filed application No.C-144 before the trial court for issuance of commission and although objections C-155 were filed by the revisionist-plaintiff, the same has not been decided on the ground that it does not require any consideration.
Learned counsel has also adverted to the fact that in earlier proceedings between the parties pertaining to permanent injunction, regular suit bearing No. 1364 of 2012 filed by the present plaintiffs, the aforesaid three properties were shown valued at rupees ten crores and therefore it is inconceivable that market value of aforesaid three properties has been diminished to the extent as claimed in the present proceedings which have been filed only three years thereafter although price of land in Lucknow has been increasing at the rate of 15% per annum. It has been submitted that proper valuation of properties in question have been clearly indicated in written statement filed by defendants and as such valuation of suit was required to be done in accordance thereof and court fees also paid in such terms.
Learned counsel has also adverted to the plaint and the prayer indicated therein to submit that revisionist-plaintiff is seeking a declaration of cancellation of registered will dated 11th June, 2004 executed by late Govind Ram Suri without specific relief being prayed therefor and in such circumstances also the the prayer as made in plaint was defective and court fees was required to be paid also in terms of cancellation of will deed.
In view of submissions advanced by learned counsel for parties, the following questions arise for determination in present revision:-
(A) Whether determination of 'market value' as contemplated under Section 7(v)(I)(c) would subsume annual rental value/nagar palika rental over plots or buildings amongst other modes of determination ?
(B) Whether in cases of unlimited pecuniary jurisdiction of trial court, defendant has any locus to raise objections regarding valuation of suit and court fees paid thereon?
(C) Whether ad valorem court fees was payable with regard to relief of declaration regarding will although no specific prayer for cancellation thereof was made?
The aforesaid questions are being answered as follows:-
Question-A: The provision for payment of court fees pertaining to properties to a suit for partition are indicated in Section 7 of the Act; the relevant portions of which are as follows:-
"7 (vi-A) for partition- In suits for partition.-
according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied.
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-sections (v), (v-A) or (v-B), as the case may be.
7(v)For possession of lands, building or gardens. - In suits for the possession of land, buildings or gardens- according to the value of the subject-matter; and such value shall be deemed to be-
(I) where the subject-matter is land, and-
(a) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such an estate, and is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled-
thirty times the revenue so payable ;
(b) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid and such revenue is settled by not permanently-
ten times the revenue so payable;
(c) where the lands pays no such revenue or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the three years immediately preceding the date of presenting the plaint-
twenty times the annual average of such net profits ; but when no such net profits have arisen therefrom the market value which shall be determined by multiplying by twenty the annual average net profits of similar land for the three years immediately preceding the date of presenting the plaint;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and docs not come under clause (a), (b) or (c) above-
the market value of the land which shall be determined by multiplying by fifteen the rental value of the land, including assumed rent on proprietary cultivation, if any ;
(II) where the subject-matter is a building or garden-
according to the market-value of the building or garden, as the case may be.
Explanation. - The word 'estate' as used in this sub-section, means any land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement lo Government or which, in the absence of such engagement, shall have been separately assessed with revenue."
A perusal of the Act also indicates that the term 'market value' has not been defined anywhere in the Act although the same has been explained in a number of judgments of Hon'ble Supreme Court as well as this Court.
A reading of Section 7(V)(I)(c) provides for valuation and payment of court fees regarding lands which either do not pay any revenue or have been partially exempted from such payment or is charged with any fixed payment in lieu of such revenue and also contemplates when net profits have arisen from land or even otherwise when no such net profits have arisen then it is the market value which is to be determined. As noticed herein above the term 'market value' has not been defined under the Act but in the case of C.L. Basra versus Pearey Lal Basra & another reported in AIR 1960 Allahabad 590 has held as follows:-
" 19. The suit being for possession, court fee was payable under Section 7(v)(II) of the Court Fees Act, i.e. on the market value of the building. The term 'market value' has not been defined in the Act. and for this reason it can be determined in any manner considered proper. Strictly speaking, market value of a building cannot be taken to be the cost of its construction less depreciation. If buildings are in great demand and there is paucity of accommodation, people may be willing to pay a much higher value. But if there is no demand for buildings, for example, at bill stations like Mussoorie, the market value thereof i.e. the price at which people are willing to purchase them, would be less than the cost of construction less depreciation.
The market value will thus greatly depend on the supply and demand for building i.e. on a fluctuating factor. It is consequently difficult for parties to the proceeding to adduce evidence on the market value of a building, and for the courts to lay down how the market value should be calculated. It is for this reason that the cost of construction less depreciation is often regarded as a safe mode of computing the market value of a building. The market value can also be determined by other modes, for example, any rule framed by the Government or a rule approved of by the Courts of law, or any usage or custom prevalent in the area and having the force of law.
From a decision of the Custodian General of Evacuee Property in Mst. Aislia Bi v. Custodian of Evacuee Property, Bhopal, Case No. 27 of the Killings of the Custodian General Volume I by Bhawani Lal and Harbans Lal Mittal, it appears that the Evacuee Department regards 20 years produce as a fair estimate of market value of a house: in fact, as mentioned therein, at numerous occasions value of a house was fixed at 25 to 30 years' rent. When a quasi-judicial tribunal has adopted the rule of assessing the valuation at 20 times the annual rent, the subordinate courts could adopt this rule, all the more, when for Government buildings rent is fixed on almost a similar basis.
In Uttar Pradesh annual rent of State owned residential buildings is invariably fixed at 6 per cent, of the valuation of the super-structure (cost less value of land). If this figure is taken as the guide, 16 2/3 times the annual rent shall be the valuation of the building alone. When the Munsif and also the learned District Judge determined the market value of the building including land at 20 times the annual rent, it cannot be said that they were in the wrong. In any case, that will not be a ground for interference by this Court."
In the case of Mitthoo Lal versus Gopal Chand reported in AIR 1979 Allahabad 226 the provisions of Section 7 pertaining to suit for partition has been considered in the following terms:-
19. Section 7(vi-a)' of the Court Fees Act relates to suits for partition. In the case of Mohd. Mustaq v. Mst Baqridan, AIR 1952 All 413 it was held that a suit for partition of the plaintiffs' share must be valued for purposes of jurisdiction under Section 4 of the Suits Valuation Act according to the share of the plaintiff. In this case an earlier decision of this Court was relied on. Thus there is a direct authority of this Court against the appellant. Moreover, the words used are "property involved in or the total of which is affected by the relief sought". In the instant case the respondent claims half share in the property. Thus the suit relates to the half share of the respondent in the property. The relief claimed relates to the half share of the respondent in the property. There is no dispute to the half share of the appellant in the property.
This point may be considered from another aspect. In suits for partition, where the plaintiff is not in actual possession of the property sought to be partitioned, relief of possession is claim- . ed. Section 7(VI-A) of the Court Fees Act lays down that in suit for partition the court fees is chargeable according to the one quarter of the value of the plaintiff's share, or according to the full value of the plaintiff's share, if the plaintiff was out of possession on the date of presenting the plaint. There is an explanation attached to this sub-clause. This explanation says that the value of the property shall be the market value computed in accordance with sub-section (V), Sub-sections (V-A) and (V-B) are not mentioned here because they are not applicable to the instant case. Section 7(V)(II) lays down that in suits for possession of a building, the court-fee chargeable is according to the market value of the building. Section 4 of the Suits Valuation Act also refers to Section 7(V) and it clearly says that suits for possession of a building for the purposes of jurisdiction shall be valued at the market value of the property involved. Thus where in a suit for partition the plaintiff also claims possession of the property allotted to him, he would be liable to pay court fee on the market value of the property upon which he seeks possession. Therefore, for the purposes of jurisdiction also the property upon which possession is sought has to be valued at its market value. Thus there is reciprocity between Section 7(V) of the Court Fees Act and Section 4 of the Suits Valuation Act.
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22. With regard to the market value there is a clear finding of the learned Munsif. There appears no mistake in arriving at the said value. It shall be noticed that the learned Munsif fixed the value at 20 times of the annual rental. This is one of the modes of finding out the valuation and it cannot necessarily be said to be wrong."
The aforesaid judgment of Mitthoo Lal (supra) has been followed thereafter with approval in the case of Rama Kant Malviya versus District Judge, Allahabad and others reported in (2002)48 ALR 156.
Subsequently in the case of Tara Devi versus Sri Thakur Radha Krishna Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and another reported in (1987) 4 Supreme Court Cases 69 it has been held as follows:-
"It is now well settled by the decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar [AIR 1958 SC 245 : 1958 Mad LJ (Cri) 148 : 1958 SCR 1024] and Meenakshisundaram Chettiar v. Venkatachalam Chettiar [(1980) 1 SCC 616 : AIR 1979 SC 989 : (1979) 3 SCR 385] that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same. The plaintiff has valued the leasehold interest on the basis of the rent. Such a valuation, as has been rightly held by the courts below, is reasonable and the same is not demonstratively arbitrary nor there has been any deliberate underestimation of the reliefs."
In the case of Agra Diocesan Trust Association versus Anil David and others reported in (2020) 19 Supreme Court Cases 183 it has been held as follows:-
" In the opinion of this Court, there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per Explanation to Section 7(iv-A)] is to be determined according to either sub-clauses (v), (va) or (vb) of the Act, this meant that the concept of "market value" -- a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub-clauses (v), (va) or (vb) of Section 7(iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable."
Upon perusal of aforesaid judgments, it is apparent that concept of market value has been explained in the aforesaid judgments that it would have wider concept and would be deemed to be referable to one or other modes of determining the value under sub clauses (v)(va) or (v)(b) of Section 7(iv-a) and that annual rental value of a plot or building would be one of the valid modes of determination of valuation of suit property and payment of court fees thereupon.
The aspect of circle rate as notified by the Collector of district, in the considered opinion of this Court can not be a valid proposition for determining market value of a suit property since the said aspect pertains to assessment of market value of landed property only for the purposes of registration of deeds and imposing stamp duty by revenue authorities. The same can not be extended for valuation of properties pertaining to partition suits and for payment of court fees thereupon. The concept is also explainable in another way that the circle rate is also dependent on the market value of immovable properties as per demand and supply and the said factor has also not been held to be appropriate in the case of C.L. Basra (supra) as quoted herein above particularly since demand and supply of immovable properties in a particular locality or district or even state is variable and may be a fluctuating factor.
The aspect of circle rate being taken for purposes of market value has already been deprecated by Division Bench of this Court in the case of M/s Nadeem Apartments Private Limited versus State of U.P. and others reported in 2004(55) ALR 575 to the effect that circle rate can never be taken to be the proper rate to assess actual market value of the landed property since it is meant only for the registration of sale-deeds for imposing stamp duty by revenue authority.
Learned counsel for opposite parties has also adverted to earlier suit filed by revisionist-plaintiff for permanent injunction in which a considerably higher valuation of properties was indicated and it has been submitted that valuation of property would not lower to such a considerable level as has been indicated in present suit which has been filed within three years thereafter.
The aforesaid submission does not hold good ground particularly in view of what has been held in the case of C.L. Basra (supra) that property prices in various localities keep fluctuating from time to time and it would be an onerous task for any court to keep determining such fluctuating rates every year and as such it would be appropriate that the average rental value of property should be taken and be multiplied as indicated in the provisions of Act itself.
Learned counsel for opposite parties have referred to the following various judgments to buttress his submissions:-
Onkarlal and others versus Ram Sarup and others reported in ILR 1954 All. 106(FB), Sanjay Tomar versus Shobha Saklani and another reported in 2018 SCC OnLine All 993 and Mohd Yamin and others versus Mulla Abdul Sattar and others reported in 2000 SCC OnLine All 492.
So far as judgment in the case of Onkarlal (supra) is concerned, it is evident that the same pertains to determination of court fees in case plaintiff is not in possession of property which is sought to be partitioned in the suit. The aforesaid judgment as such does not have any application in the present facts and circumstances of the case which pertains only to definition of the term 'market value' and not with regard to whether ad valorem court fees is payable in view of consequential relief sought.
The cases of Sanjay Tomar and Mohd Yamin (supra) are also inapplicable in the facts of case since it also involves the issue whether court fees payable should be as per the plaintiff's share or on the entire property since plaintiff was not in possession over the property sought to be partitioned. As such the said judgments also not pertaining to determination of market value, are also inapplicable.
Considering the aforesaid, it is apparent that payment of court fees taking annual rental value of any immovable property is one of the safe methods for determining market value of property in terms of section 7 (V)(I)(c) of the Act and therefore the trial court has clearly erred in not accepting the same. The question therefore is answered in the affirmative in favour of revisionist-plaintiff.
Question-B: So far as this question is concerned, it is admitted between the parties the suit in question has been filed in court which has unlimited pecuniary jurisdiction.
With regard to the said question, it is admitted between the parties that suit proceedings are pending in a court which has unlimited pecuniary jurisdiction. In the light of aforesaid, Hon'ble Supreme Court in the case of Sujir Keshav Nayak versus Sujir Ganesh Nayak reproted in (1992) 1 Supreme Court Cases 731 has held as follows:-
"It is now well settled by the decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar [1958 SCR 1024 : AIR 1958 SC 245] and Meenakshisundaram Chettiar v. Venkatachalam Chettiar [(1980) 1 SCC 616] that in a suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same."
But the defendant has no right to raise such objection nor the court should delve into the matter after filing of written statement on evidence. The law on this aspect, thus, should be taken to be as under:
(1) Where the question of court fee is linked with jurisdiction a defendant has a right to raise objection and the court should decide it as a preliminary issue.
(2) But in those cases where the suit is filed in court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of court fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the court even in suits filed in courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary."
A coordinate Bench of this Court in the case of Smt. Santosh Kumari and another versus Sukh Dev Singh, Civil Revision No. 555 of 2014 as follows:-
"5. The Court Fees Act was enacted to collect revenue for the benefit of the State and a contesting party cannot use it as a tool to obstruct the trial. It is difficult to understand what grievance the defendant can make by seeking to invoke the revisional jurisdiction 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. Even if the defendant believes honestly that proper court-fee has not been paid by the plaintiff, still he has no right to move the superior court against the order adjudging payment of court-fee payable on the plaint."
Upon applicability of aforesaid judgments in the present facts and circumstances, it is evident that in such case as the present one where the court has unlimited pecuniary jurisdiction, the defendant does not have any vested right to raise objections and in case where valuation is disclosed by the plaintiff on the relief claimed in the plaint, the same should be taken as correct. Since the plaintiff is free to make his own estimation of the reliefs sought in the plaint and therefore his valuation for the purposes of court fees has to be ordinarily accepted. The word of caution in such cases is only in case the court concerned comes to conclusion that the valuation is arbitrary, unreasonable or demonstratively undervalued. However the same does not give any right to the defendant to use it as the defence merely to frustrate the claims of the plaintiff.
Judgments cited by learned counsel for opposite parties with regard to same R. Ramamurthi Iyer versus Raja Rajeshwara Rao reported in (1972) 2 Supreme Court Cases 721 does not have any application in the present facts and circumstances since proceedings therein pertained to withdrawal of suit proceedings and for purchase of share in partition by a co-sharer as per valuation, which was not for the purposes of payment of court fees. Similarly the case of Dhiren Ghosh versus Mayarani @ Karibala Ghosh and others reported in 2018 SCC OnLine Cal 3487 pertained to an application filed by co-sharer under Order 1 Rule (10) of the Code of Civil Procedure since the proceedings pertained to partition. As such it is evident that judgments cited on that point by learned counsel for opposite parties do not have any application in the present case and it is therefore held that in cases where suits have are filed in a court having unlimited pecuniary jurisdiction, the defendant does not have any vested right to raise objections regarding valuation of suit property and court fees paid thereon. However it is for the court concerned to consider the same in case it finds valuation of suit property and court fees paid thereupon to be arbitrary or demonstratively undervalued, of which there is no finding recorded in the impugned order.
The question No.B therefore stands answered in favour of revisionist-plaintiff.
Question-C: With regard to aforesaid question, although learned counsel for opposite parties has submitted that the prayer made in the plaint is in the nature of seeking challenge to will dated 11.06.2004 executed by Sri Govind Ram Suri, but no specific prayer has been made for its cancellation. It is also submitted that there is no specific prayer either regarding cancellation of the aforesaid will-deed or even any declaration with regard thereto but the revisionist-plaintiff would be required to pay ad valorem court fees thereupon.
With regard to aforesaid question, it is evident that the impugned order has not dealt with any such contention nor does it appear to have been raised before it. A perusal of plaint will also indicate that there is no prayer made therein either for cancellation of any will-deed or for declaration of it to be void. As such, the aforesaid question may not require any adjudication by this Court particularly in view of the fact that the said question has already been answered by Hon'ble the Supreme Court in the case of Suhrid Singh versus Randhir Singh and others reported in (2010)12 SCC 112 in the following terms:
"7.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.
8.Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the 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."
The Question-C as such stands answered accordingly.
In view of aforesaid discussion, Questions No.A and B are answered in favour of revisionist. Resultantly, the revision succeeds and is allowed. Parties to bear their own costs.
