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whether a suit filed seeking a declaration that a will and a sale deed are void, resulting their cancellation, will fall u/s. 7(iv-A) of the Court Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of 1938) or Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose of valuation. = Shailendra Bhardwaj & Others .. Appellants Versus Chandra Pal & Another .. Respondents = Published in http://judis.nic.in/supremecourt/helddis.aspx

COURT FEES ACT, 1870:

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

s.7(iv-A) and Articles 17(iii) as amended by U.P. Act, 19 of 1938 – Suit
for declaration of a will and a sale deed as null and void and for
cancellation thereof – Court fee payable – Held: The suit having been filed
after death of testator, suit property covered by the will has to be valued
– Since s. 7(iv-A) of the U.P. Amendment Act specifically provides that
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 – Consequently, in terms of s. 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 trial court as well as High Court have correctly held so.

 

The appellant filed a suit for declaration of a will and a sale as null and
void and to cancel the same. The suit property was valued at ? 30,00,000/-
but the fixed court fee of ? 200/- was paid under Article 17(iii) of
Schedule II to the Court Fees Act, 1870. The trial court held that the
plaintiff should have paid the court fee as per s.17(iv-A) of the U. P.
Amendment Act. The High Court upheld the said order.

 

In the instant appeal, the question for consideration before the Court was:
whether a suit filed seeking a declaration that a will and a sale deed are
void, resulting their cancellation, will fall u/s. 7(iv-A) of the Court
Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of 1938) or
Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose
of valuation.

 

Dismissing the appeal, the Court

 

HELD:

 

1.1 Article 17(iii) of Schedule II of the Court Fees Act, 1870 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. 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. The suit, in the
instant case, was filed after the death of the testator and, therefore, the
suit property covered by the will has also to be valued. The plaintiff
valued the suit at Rs.30 Lakhs for the purpose of pecuniary jurisdiction.
However, he paid a fixed court fee of Rs.200/- under Article 17(iii) of
Schedule II of the Court Fees Act. He had not noticed the fact that the
said Article stood amended by the State, by adding the words “not otherwise
provided by this Act”. Since s. 7(iv-A) of the U.P. Amendment Act
specifically provides that 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, despite the fact that no consequential relief has been claimed.
Consequently, in terms of s. 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. [Para
10-11]

 

Suhrid Singh v. Randhir Singh and Others (2010) 12 SCC 12 – held
inapplicable

 
CASE LAW REFERENCE

 

(2010) 12 SCC 12 held inapplicable Para 5

 

REPORTABLE
IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO. 8196 OF 2012
[Arising out of SLP (Civil) No. 10958 of 2012]

 
Shailendra Bhardwaj & Others .. Appellants

 

Versus

 

Chandra Pal & Another .. Respondents

 
J U D G M E N T

 
K. S. Radhakrishnan,J.

 

1. Leave granted.

 

2. The short question that has come up for consideration in this case is
whether a suit filed seeking a declaration that a will and a sale deed are
void, resulting their cancellation, will fall under Section 7(iv-A) of the
Court Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of
1938) [for short ‘the U.P. Amendment Act’] or Article 17(iii) of Schedule
II of the Court Fees Act, 1870 for the purpose of valuation.

 

3. Civil Suit No. 230 of 2006 was filed before the Court of the Civil
Judge, Hathras, U.P. seeking the following reliefs:
“(A) Decree may be passed in favour of the plaintiffs and against the
defendants, declare null and void and invalid of the forged will
dated 21.3.2003 and sale deed dated 12.1.2005 and cancel and its
information sent to the office of Registrar Hathras.

 
(B) That the cost of the Suit may be decreed in favour of the
plaintiff and against the defendants.

 
(C) That any other cost which may deem fit by the Hon’ble Court in
favour of the plaintiff and against the defendants in the
interest of Justice.”

 
4. The suit property was valued and the cost of the property was fixed
at Rs.30,00,000/- and the Court fee of Rs.200/- was paid under Article
17(iii) of Schedule II of the Court Fee Act. The question arose before the
trial Court whether the plaintiff had properly valued the suit and the
court fee paid. The trial Court took the view that the plaintiff should
have paid the court fee as per Section 7(iv-A) of the U.P. Amendment Act.
The matter was taken up before the High Court. The High Court concurred
with the views taken by the trial Court and dismissed the appeal on
15.12.2011, against which this appeal has been preferred.

 

5. Shri Viresh Kumar Yadav, learned counsel appearing on behalf of the
appellant, submitted that the Courts below have committed an error in
holding that the suit be valued and an ad valorem court fee be paid under
Section 7(iv-A) of the U.P. Amendment Act. Learned counsel submitted that
the plaintiff had correctly valued the suit and proper court fee was paid
in accordance with Article 17(iii) of Schedule II of the Court Fees Act.
Considerable reliance was also placed on the judgment of this Court in
Suhrid Singh v. Randhir Singh and Others [(2010) 12 SCC 12] and contended
that the Court fee need be paid only on the plaint averments.

 

6. Shri M. R. Shamshad, learned counsel appearing for the respondent, on
the other hand, contended that the High Court has come to the correct
conclusion that even though no consequential reliefs was prayed for, still
as per the U.P. Amendment Act, plaintiff will have to pay the court fee
under Section 7(iv-A) of the U.P. Amendment Act. Learned counsel submitted
that the plaintiff had valued the suit without noticing the fact that the
State of U.P. had amended the Court Fee Act by Act XIX of 1938 and in terms
of Section 7(iv-A) of the U.P. Amendment Act, the court fee has to be
commuted according to the value of the subject matter and an ad valorem
court fee has to be paid. Learned counsel also submitted that the judgment
of this Court in Suhrid Singh (supra) is not applicable to the facts of the
present case and this Court had no occasion to consider the scope of the
U.P. State amendment in that judgment.

 

7. We may, for proper appreciation of the various contentions raised by
the parties, refer to the provisions of the Court Fees Act as well as Court
Fees Act as amended by the U.P. Amendment Act, which will give a correct
picture of the changes made by the U.P. Amendment Act on the Court Fees
Act. An operative chart of the Court Fees Act and the U.P. Amendment Act
is given below:

 

|Court Fees Act |As per UP Amendment Act (19 |
| |of 1938) |
|“7. Computation of fees |“7. Computation of fees |
|payable in certain suits: |payable in certain suits for |
|The amount of fee payable |money: |
|under this Act in the suits |The amount of fee payable |
|next hereinafter mentioned |under this Act in the suits |
|shall be computed as follows: |next hereinafter mentioned |
|……………….. |shall be computed as follows:|
|……………….. |……………….. |
| |……………….. |
|(iv) In Suits – | |
|……………….. |For declaratory decree with |
|……………….. |consequential relief – (iv) |
|For declaratory decree and |in Suits- |
|consequent relief- |to obtain a declaratory |
|………(a) ….. |decree or order, where |
|………(b)…… |consequential relief other |
|For a declaratory decree and |than relief specified in |
|consequential relief (c) to |sub-section (iv-A) is prayed;|
|obtain a declaratory decree or| |
|order, where consequential |For cancellation or adjudging|
|relief is prayed, |void instruments and decrees |
|…………….. |– (iv-A) in suit for or |
|…………….. |involving cancellation of or |
|According to the amount at |adjudging void or voidable a |
|which the relief sought is |decree for money or other |
|valued in the plaint or |property having a market |
|memorandum of appeal. |value, or an instrument |
| |securing money or other |
| |property having such value: |
| | |
| |Where the plaintiff or his |
| |predecessor-in-title was a |
| |party to the decree or the |
| |instrument, according to the |
| |value of the subject matter, |
| |and |
| |Where he or his |
| |predecessor-in-title was not |
| |party to the decree or |
| |instrument, according to |
| |one-fifth of the value of the|
| |subject-matter, and such |
| |value shall be deemed to be- |
| |If the whole decree or |
| |instrument is involved in the|
| |suit, the amount for which or|
| |value of the property in |
| |respect of which the decree |
| |was passed or the instrument |
| |executed, and if only a part |
| |of the decree or instrument |
| |is involved in the suit, the |
| |amount or value of the |
| |property to which such part |
| |relates. |
| | |
| |Explanation – ‘the value of |
| |the property’ for the |
| |purposes of this sub section,|
| |shall be the market-value, |
| |which in the case of |
| |immovable property shall be |
| |deemed to be the value as |
| |computed in accordance with |
| |sub-section (v), (v-A) or |
| |(v-B), as the case may be.” |
| | |
| | |
| |————————- |
| |“Schedule II |
| |Article 17 Plaint or |
| |memorandum of appeal in each |
| |of the following suits: |
| |……………… |
| |……………… |
| |(iii) To obtain a declaratory|
| |decree where no consequential|
|———————- |relief is prayed in any suit,|
|“Schedule II |not otherwise provided for by|
|Article 17 Plaint or |this act; |
|memorandum of appeal in each | |
|of the following suits: | |
|……………… | |
|……………… | |
|(iii) To obtain a declaratory | |
|decree where no consequential | |
|relief is prayed. | |

 
8. We may also indicate that the Suits Valuation Act, 1887 in terms of
which the suits have to be valued for the purpose of Court Fees Act has
also been amended vide U.P. Act 7 of 1939 (w.e.f. 16.7.1939) and the
difference in both the Acts are given below:

 

|Suits Valuation Act, |Suits Valuation Act, 1887 |
|1887(Central Act) |[Amended provision in the |
| |State of U.P.] |
|4. Valuation of relief in |4. Valuation of certain |
|certain suits relating to |suits for the purposes of |
|land not to exceed the value|jurisdiction – Suits |
|of the land- |mentioned in paragraphs IV |
|Where a suit mentioned in |(a), IVA, IVB, V, VA, VB, |
|the Court Fees Act, 1870 (7 |VI, VIA; VIII and X(d) of |
|of 1870), Section 7, |Section 7 and Articles 17, |
|paragraph IV, or Schedule |18 and 19 of the Schedule |
|II, Article 17, relates to |II of the Court-Fees Act, |
|land or an interest in land |1870, as in force for the |
|of which the value has been |time being in the Uttar |
|determined by rules under |Pradesh, shall be valued |
|the last foregoing section, |for the purposes of |
|the amount at which for |jurisdiction at the market |
|purposes of jurisdiction the|value of the property |
|relief sought in the suit is|involved in or affected by |
|value shall not exceed the |or the title to which is |
|value of the land or |affected by the reliefs |
|interest as determined by |sought, and such value |
|those rules. |shall, in the case of land,|
| |be deemed to be the value |
| |as detgerminable in |
| |accordance with the rules |
| |framed under Section 3”. |
| |[Vide U.P. Act 7 of 1939. |
| |Section 3 (w.e.f. |
| |16.07.1939]. |

 
9. On comparing the above mentioned 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 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.
The suit, in this case, was filed after the death of the testator and,
therefore, the suit property covered by the will has also to be valued.
Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that
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 present
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 commuted according to the value of the subject matter
and the trial Court as well as the High Court have correctly held so.

 

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 Section 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. 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. Plaintiff had not noticed the fact
that the above mentioned article stood amended by the State, by adding the
words “not otherwise provided 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.

 

12. For the reasons abovementioned, the appeal lacks in merits and the
same is dismissed, with no order as to costs.

 
…………………………………J.
(K.S. Radhakrishnan)

 
…………………………………J.
(Dipak Misra)
New Delhi,
November 21, 2012

 

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