19 February 2020
Supreme Court
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AGRA DIOCESAN TRUST ASSOCIATION Vs ANIL DAVID

Bench: HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN, HON'BLE MR. JUSTICE S. RAVINDRA BHAT, HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN
Judgment by: HON'BLE MR. JUSTICE S. RAVINDRA BHAT
Case number: C.A. No.-001722-001722 / 2020
Diary number: 25604 / 2019
Advocates: SHISHIR DESHPANDE Vs


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REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1722 OF 2020 (ARISING OUT OF SLP (C)  No. 18008 OF 2019)  

AGRA DIOCESAN TRUST ASSOCIATION         ...APPELLANT(S)

VERSUS

ANIL DAVID AND ORS.      ...RESPONDENT(S) WITH

CIVIL APPEAL NO. 1723 OF 2020 (ARISING OUT OF SLP (C)  No. 18007 OF 2019)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. Leave granted.  With  consent  of  counsel  for  the  parties,  the  appeals  were

heard finally. 2. The appellant, (hereafter “the plaintiff”) had filed a suit (O.S. 24/ 2013) in

the court of the Civil Judge (Senior Division), Dehradun for cancellation of a sale

deed  dated  08.03.2013,  executed  by  the  defendant-respondent  no.1.  The  third

respondent, (hereafter called the “purchaser”) had acquired the property from the

defendant-respondent no.1. Another suit  (O.S. No. 25/ 2013, also titled as  Agra

Diocesan Trust Association v. Anil David and Others), was filed by the plaintiff for

cancellation of the sale deed dated 08.03.2013 executed by the first two respondents

in favour of the purchaser.  A further relief sought was for permanent injunction

against  the  respondents/  defendants  restraining  them  from  interfering  in  the

plaintiff’s peaceful possession of the property in dispute. The defendants filed their

written statements, contending inter alia that although the relief of cancellation of

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the sale deed in question has been sought, the plaintiff had improperly valued the

suit and the court fee paid was insufficient. 3. The  trial  court  on  the  pleadings  of  the  parties,  framed  the  issues;  the

relevant issues, Nos. 8 and 10 in both suits were (a) whether the suit filed by the

plaintiff was undervalued and (b) whether the court fee paid by the plaintiff was

insufficient. 4. The trial court by its order dated 23.04.2016, recorded the findings against

the plaintiff / petitioner and held that the suits filed were under-valued and the court

fee paid by the plaintiff was insufficient. Aggrieved by the same, the plaintiff filed

the writ  petition before the High Court, contending that the land in dispute was

agricultural land. Further, it was stated that the appellant-plaintiff was not party to

the sale deed, and therefore, the learned trial court has committed an illegality in

deciding the  issues  against  the plaintiff  and in  directing  the plaintiff  to  pay  ad

valorem court fee on the market value of the land. It was also submitted that as the

land in dispute was agricultural land, the petitioner was obliged to pay the court fee

on the revenue payable as fixed by the state government in view of Section 7(iv-A)

of the Court Fees Act, 1870. 5. The High Court, by the impugned judgment, after hearing counsel for the

parties, accepted the respondent/defendants’ contentions that the circle rate fixed by

the collector to charge stamp duty took into account the actual market value of the

property situated in the area. It was held that fixation of circle rate by the collector

is the proper mode for fixation or determination of the market value (for purposes

of payment of court fees), unless an aggrieved person challenges that the circle rate

fixed by the Collector is not the correct market value of the property.  6. Mr. P.N. Mishra, learned senior counsel, argued that the land in dispute is

revenue payable land. Accordingly, the suits were correctly valued at 30 times of

the revenue fixed by the state. It was urged that being a stranger to the sale deed in

question, the plaintiff had to pay 1/5th on the market value as assessed, i.e. on 30

times  the  revenue.  It  was  urged  that  the  market  value  in  the  sale  deed  was

mentioned at ₹11,79,09,000/- and ₹ 7,20,36,000/- respectively as the market value

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assessed in view of the circle rate fixed by the collector, which was not the correct

market value. Counsel relied on a textual interpretation of Section 7(iv-A) of the

Court Fees Act.  Reliance was placed on  Shailendra Bhardwaj v. Chandra Pal &

Anr., (2013) 1 SCC 579 to say that the circle rate fixed by the collector for charging

stamp duty is not the correct market value of the property for the purpose of court

fees. Therefore, the market value mentioned in the sale deed in order to pay the

stamp duty, i.e.  ₹ 11,79,09,000/- and  ₹ 7,20,36,000/- respectively, is not the correct

market value of the property in dispute. Mr. Mishra also argued that the suits were

properly valued and the proper court fee was paid. The courts below, according to

him, erred in holding that the suits were under-valued by the plaintiff and that the

court fee paid was insufficient. 7. Mr.  Rakesh  Dwivedi,  learned  counsel  appearing  for  the  respondent

defendants, resisted the present proceedings. He urged that this court should desist

from interfering with the concurrent findings of the courts below, under Article 226

of the Constitution of India. It was also submitted by him that the circle rate fixed

by the collector for charging stamp duty was so fixed in terms of the actual market

value of the property situated in the area. It is argued that the fixation of circle rate

by  the  collector  is  the  correct  mode  for  fixation  of  market  value,  unless  an

aggrieved person challenges that the circle rate fixed by the collector is incorrect. It

is submitted that the appellants, in an arbitrary manner, valued the market value of

the suit property for payment of court fee and jurisdiction of the court.  8. In the impugned judgment, the High Court reasoned as follows:

“19. The submission of the learned counsel for the petitioners that  to  ascertain  the  market  value  and  for  the  purpose  of payment of court fee and jurisdiction of the court, should be considered  from  plaint  averments  alone  and  what  has  been stated in the written statement is not relevant is acceptable to the  extent  that  what  has  been  contended  in  the  written statement is not relevant, but the court has to consider while determining the market value for the purpose of court fee and jurisdiction  of  the  court,  the  court  has  to  consider  the

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averments of plaint, whether the suit has been valued for the purpose of court fee and jurisdiction as per the relief claimed and in accordance with the provisions contained in the Court fee and Suit Valuation Act. The court is not supposed to accept the plain averment in regard to the payment of court fee and jurisdiction as contended by the plaintiff. On a perusal of the plaint averments and the provisions contained in Section 7(iv- A), this Court is of the view that at one place the plaintiff has valued the suit for cancellation of sale deed and for the purpose of payment of court fee and jurisdiction Rs. 2,00,00,000/- and immediately thereafter at  thirty times of  the revenue payable i.e. Rs. 3,000/- and paid the court fee on 1/5 of the valuation of Rs. 3,000/-. 20. It is nowhere stated in the plaint that how the plaintiff has valued  the  market  value  of  the  property  in  question  at  Rs. 2,00,00,000/-  whereof  as  per  the  circle  rate  fixed  by  the Collector,  the market  value of  the property  in  dispute  is  Rs. 11,00,00,000/-. The stamp duty has been paid on an amount of Rs.  2,00,00,000/-  sale  consideration  but  in  view  of  the provisions  contained  in  Section  7(iv-A)  of  the  Act  the  sale consideration  is  not  the  relevant  factor  for  the  purpose  of payment of court fee and jurisdiction of the court. It is only the market value of the suit property the court fee is to be paid and jurisdiction of the court be fixed. The plaintiff cannot take two contradictory market value in his plaint, as in one place he has fixed the market value of Rs. 2,00,00,000/- and the jurisdiction of hearing the suit for valuation of Rs. 1,00,000/- vests in Civil Judge (Sr.  Div.),  whereof a suit  valued for an amount of Rs. 3,000/- for the purpose of payment of court fee and jurisdiction, the jurisdiction to try the suit of the valuation of Rs. 3,000/- vests in the court of Civil Judge (Jr. Div.). 21. Section 15 the Code of Civil Procedure provides that every suit  shall  be  instituted  in  the  court  of  the  lowest  grade competent to try it. Section 15 of CPC is quoted hereunder: "15. Court in which suits to be instituted.- Every suit shall be instituted in the Court of the lowest grade competent to try it." 22. Assuming that the market value of the suit property is Rs. 3,000/-, as per the averment of the plaint, then the suits could

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not have been filed in the Court of Civil Judge (Sr. Div.). If it is a valuation of Rs. 2,00,00,000/- as per the plaint averment for the purpose of payment of court fee and jurisdiction and the suits have been instituted in the competent court of jurisdiction, then there is no basis of it that the market value of the suit is Rs.  2,00,00,000/-.  The submission of  learned counsel  for the petitioners that circle rate is not the correct mode to ascertain the  market  value  has  some force,  but  it  is  not  the  absolute proposition. In some cases, the market value may be higher or lower then the circle rate but to ascertain the market value, the party assailing the market value as fixed in the circle rate has to  prove  that  the  circle  rate  has  not  been  fixed  on  the  real market  value.  Unless  otherwise  market  value  is  proved  on higher or lower side, the market value assessed on the basis of circle rate cannot be said improper/incorrect market value. 23. A perusal of the impugned order would show that the trial court having considered the market value as mentioned in the sale  deed  has  found  the  correct  market  value  of  the  suit property and held that the suits have not been valued properly. Thus, I am of the considered view that since no other market value  has  been  proved  by  the  petitioners/plaintiff  that  the settled revenue of the land is Rs. 3,000/- and in absence of any evidence in this regard, the trial court has rightly considered the market value of the property in dispute in accordance with the market value fixed by the Collector in order to charge the stamp duty, which is the correct market value. 24.  So  far  the  findings  recorded  by  the  trial  court  that  the petitioners/plaintiff is required to pay the ad valoram court fee on  the  market  value  is  incorrect  in  view  of  the  provisions contained in Sub Section (2) of Section 7(iv-A) of the Court Fee Act. Since the petitioners/plaintiff or its predecessor-in-interest is  not  the  party  to  the  instrument,  therefore,  the petitioners/plaintiff  is  obliged to  pay 1/5 of  the value of  the subject matter as mentioned in the instrument involved in the suit. 25.  In  view  of  the  findings  recorded  above,  I  am  of  the considered view that the trial court has rightly held that O.S. no. 24 of 2013 and O.S. 25 of 2015 have been undervalued and

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court fee paid is insufficient and in fixation of market value as mentioned in the sale deed Rs. 11,79,09,000/- (in O.S. no. 24 of 2013) and Rs. 7,20,36,000/- (in O.S. no. 25 of 2013) is correct, whereof  the finding in  regard to  the payment  of  ad valorem court  free  are  illegal  and  is  liable  to  set  aside.  Thus,  the judgment and order passed by the trial court on issue nos. 8 and 9 are modified to the extent that the plaintiff shall value the suit no. 24 of 2013 at the rate of Rs. 11,79,09,000-and O.S. no. 25 of  2013 at  the rate  of  Rs.  7,20,36,000/-  respectively,  and shall pay the court fee on 1/5 of the aforesaid value thereon. So far Relief 'B' and 'C' are concerned, the petitioners have paid the  fixed  court  fee.  The  petitioners  shall  pay  the  remaining court  fee  within  two  months  from  today,  on  payment  of remaining court fee the trial court shall proceed to decide both the suits in accordance with law.”

9. For a proper appreciation of the issue, it would be essential to extract the

relevant provisions of law. Section 7(iv-A) of the U.P. Court Fees Act, 1870 reads

as follows:

“7. Computation of fees payable in certain suits- The amount of  fee  payable  under  this  Act  in  the  suits  next  hereinafter mentioned shall be computed as follows: - XXXXXX XXXXXX XXXXXX For cancellation or adjudging void instruments and decrees. (iv-A) In suit for or involving cancellation of or adjudging void or  voidable  decree  for  money  or  other  property  having  a market  value,  or  an  instrument  securing  money  or  other property having such value: (1) 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 (2) where he or his predecessor-in-title was not a 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 is passed or the instrument executed, and if only a

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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 the sub-section (v), (v-A) or (v-B) as the case may be. For easement.- (iv-B) In suits – (a) for a right to some benefit (not herein otherwise provided for) to arise out of land; For an injunction – (b) to obtain an injunction: To establish an adoption – (c) to establish an adoption or to obtain a declaration that an alleged adoption is valid; To set  aside an adoption- (d)  to set aside an adoption or to obtain  a  declaration  that  an  alleged  adoption  is  invalid  or never, in fact, took place; To set aside an award other than awards mentioned in Section 8. - (e) to set aside an award not being an award mentioned in Section 8; according to the amount at which the relief sought is valued in the plaint: [Provided that such amount shall not be less than one fifth of the market value of the property involved in or effected by the relief sought or Rs.200 whichever is greater: Provided further that in the case of suits falling under clauses (a) and (b), the amount of court fee leviable shall in no case exceed Rs.500]. Explanation 1.- When the relief sought is with reference to any immovable property the market value of such property shall be deemed  to  be  the  value  computed  in  accordance  with  sub- section (v), (v-A) or (v-B) of this section, as the case may be. Explanation 2 – In the case of suits- (i)  falling  under  clauses  (a)  and  (b),  the  property  which  is affected by the relief sought, and where properties of both the plaintiff and defendant are affected, the property of the plaintiff so affected; (ii) falling under clauses (c) and (d), the property to which title by succession or otherwise may be diverted or affected by the alleged adoption; and (iii) falling  under  clause  (e),  the  property  which  forms  the subject-matter of the award;

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shall be deemed to be the property involved in or affected by the relief sought within the meaning of the proviso to this sub- section. For restitution of conjugal rights – (iv-C) in suits – (a) for the restitution of conjugal rights; For  marital  rights  –  (b)  for  establishing  or  annulling  or dissolving a marriage; For guardianship – (c) for establishing a right to the custody or guardianship  of  any  person  such  as  a  minor,  including guardianship for the purpose of marriage. according to the amount at which the relief sought is valued in the  plaint,  but  in  no  case  shall  such  amount  be  less  than Rs.200. For possession of lands, buildings or gardens – (v) 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—ten  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, but not permanently— ten times the revenue so payable; (c) where the land 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 year next before 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

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

For possession of superior proprietary and under-proprietary land – (v-A) In suits for possession -  (1)  of  superior proprietary  rights  where  under-proprietary  or sub-proprietary rights exist in the land- according to the market value of the subject matter, and such value shall be determined by multiplying by fifteen the annual net profits of the superior proprietor; (2) of under proprietary or sub-proprietary land as such - according to  the  value  of  the  subject  matter,  and such  value shall  be  determined by  multiplying by  ten  the  annual  under- proprietary  or  sub-proprietary  rent,  as  the  case  may  be, recorded in the Collector’s register as payable for the land for the year next before the presentation of the plaint. If no such rent is recorded in the collector’s register the value shall be determined in the manner laid down in clause (c) of sub-section (v) of this section save that the multiple will be ten. Explanation  –  Land  held  by  any  permanent  lessees  shall  be treated  for  the  purposes  of  this  sub-section,  as  under- proprietary or sub-proprietary land.

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Possessory suit between tenants – (v-B) In suits for possession of land between rival tenants and by tenants against trespasser according to the value of the subject-matter and such value shall be determined if such land is the land of- (a)  a  permanent  tenure-older  or  a  fixed  rate  tenant  –  by multiplying by twenty the annual rent recorded in the Collector’s register  as  payable for  the  land for  the year  next  before  the presentation of the plaint; (b) an ex-proprietary or occupancy tenant – by multiplying by two such rent in case of suits for possession of land between rival  tenants,  and by  annual  rent  in  suits  by  tenants  against trespassers; (c) any other tenant – by annual rent. If no such rent is recorded in the Collector’s register, the value shall be determined in the manner laid down in clause (c) of sub-section (v) of this section save that the multiple shall be that entered in clauses (a), (b) and (c) of this sub-section according as the class of tenancy affected is governed by clauses (a), (b) or (c) of this sub-section.”

10. In OS No. 24/2013, the averment with respect to suit valuation and court fee

was as follows:

"15. That the valuation of the suit for the purpose of court fee and jurisdiction is as under: - (a) Relief "A" is for cancellation of sale deed. The  relief  "A"  is  valued  for  the  purpose  of  court  fee  and jurisdiction at Rs.2,00,00,000/- Hence, relief "A" is valued for the purpose of court fee and jurisdiction at 30 times of the land revenue,  i.e.,  Rs.3,000/-.  The plaintiff  was not a party to the sale deed, hence the court fee of 1/5 of Rs.3,000/- is being paid. (b)  For  Relief  "B"  -  Rs.5,00,000/-,  on  which  the  prescribed court fee has been paid. (c)  For  Relief  "C"  -Rs.5,00,000/-,  on  which  the  prescribed court fee has been paid."

In O.S. No. 25 of 2013, the averment with respect to valuation for purposes

of court fees, is as below:

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"15. That the valuation of the suit for the purpose of court fee and jurisdiction is as under: - (a) Relief "A" is for cancellation of sale deed. The  relief  "A"  is  valued  for  the  purpose  of  court  fee  and jurisdiction at Rs.1,00,00,000/- Hence, relief "A" is valued for the purpose of court  fee and jurisdiction at 30 times of the land revenue, i.e., Rs.3,000/-. The plaintiff was not a party to the sale deed, hence the court fee of 1/5 of Rs.3,000/- is being paid. (b)  For Relief  "B" -  Rs.5,00,000/-,  on which the prescribed court fee has been paid. (c)  For  Relief  "C"  -Rs.5,00,000/-,  on  which  the  prescribed court fee has been paid."

11. The reliefs sought in each case were: (i) for a decree for declaration that the sale deed dated 08.03.2013

executed by defendant no. 1 in favour of defendant no. 3 (suit no. 24 of

2013)  is  void  and  not  binding  on  the  plaintiff  and  a  decree  of

cancellation thereof; (ii) for a decree for declaration that the sale deed dated 08.03.2013

executed by defendant nos. 1 and 2 in favour of defendant no. 3 (suit

no. 25 of 2013), is void and not binding on the plaintiff and a decree of

cancellation thereof; (iii) a decree for permanent injunction restraining defendant nos. 1 to

3, their agents, employees, representatives etc. from interfering in any

way with  the  property  more  fully  described in  the  schedule  of  the

plaint, till the disposal of the suit (in both suits); and (iv) a decree of permanent injunction restraining defendant no. 3, his

agents, employees, representatives etc. from in any way transferring,

alienating or  creating third party interest  in the property more fully

described in the schedule of the plaint till the disposal of the suit (in

both suits). 12. In Suhrid Singh alias Sardool Singh v. Randhir Singh & Ors. (2010) 12 SCC

112, this court noted that the trial court ruled that the claims relating to the sale

deeds amounted to seeking cancellation of the sale deeds and therefore, ad valorem

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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 issue of court fee

payable in regard to the claim 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 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 amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the

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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.”

13. In Shailendra Bhardwaj & Ors. v. Chandra Pal & Anr. (supra), this court had

to  consider  whether  a  suit  for  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. The trial court

had held that the court fee had to be paid under Section 7(iv-A) and the High Court

affirmed that view. This court noted the provisions of the Court Fees Act, 1870 as

amended by the U.P. Amendment Act (Act 19 of 1938) and held as follows:

“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 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.”

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14. The Court observed that the suit was filed after the death of the testator, and

that the suit property covered by the will had to be valued. The court felt that since

Section 7(iv-A) of the U.P. Amendment Act specifically provided that payment of

court  fees  in  cases  where  the  suit  is  for,  or  involving  cancellation  or

adjudging/declaring null  and void a  decree for  money or  an instrument,  Article

17(iii) of Schedule II of the Court Fees Act was inapplicable. The U.P. Amendment

Act, therefore, was applicable despite the fact that no consequential relief had been

claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act,

court fees were to be computed according to the value of the subject-matter. The

trial court and the High Court correctly held it to be so. The court distinguished

Suhrid Singh's case (supra) stating that:

“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 above mentioned 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.”

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15. It is evident from the above discussion that it is undisputed that the point in

issue was with respect to valuation for purposes of court fee; equally, it is not in

issue  that  since  the  plaintiff  (i.e.  petitioner  herein)  sought,  in  addition  to  a

declaration, in both the suits, decrees of cancellation, the crucial point was what the

correct  value  for  purposes  of  court  fee  was.  Now,  market  value  has  been

specifically defined, in the context of a litigation like the present one. According to

Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to

the decree or instrument, the value was to be according to one-fifth of the value of

the subject matter, “and such value shall be deemed to be” under Section 7 (iv-A),

“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 is passed or the instrument

executed”.  Importantly,  the  explanation  to  Section  7  (iv-A)  created  a  deeming

fiction as to what constitutes the “value of the property” by saying that “in the case

of immovable property shall be deemed to be the value as computed in accordance

with the sub-section (v), (v-A) or (v-B) as the case may be.” 16. The plaintiff/petitioners’ contention was and continues to be that the value

determinable is in terms of clause (v) of Section 7, by reason of Section 7 (iv-A).

Section 7 (v) (i) contains two clauses- (a) and (b): both are in respect of revenue

paying  lands.  The  petitioner  valued  its  suits  on  the  basis  of  revenue  which

according to it, was payable. While so stating, the value (for purposes of court fee)

was determined to be ₹ 3000/- in each of the suits.  17. A plain reading of the impugned judgment reveals that what weighed heavily

with the High Court was the fact that the plaintiff valued the suits differently for the

purposes of court fees and jurisdiction, and secondly that:

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

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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.   18. In view of the above discussion, the impugned judgment and order, and that

of the trial court, cannot stand. Consequently, the question of what is the market

value,  based on the revenue payable,  would be an issue to be tried in  the suit.

Resultantly, the appeals succeed and are allowed without any order on costs.

.…....................…….....................J.                                                     [ARUN MISHRA]     

.…....................…….....................J.                                                     [M. R. SHAH]     

..……….......................................J.                                                   [S. RAVINDRA BHAT]

New Delhi, February 19, 2020.