Satheedevi
Vs. Prasanna & ANR. [2010] INSC 376 (7 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4347 OF
2010 (Arising out of S.L.P. (C) No.3597 of 2009) Satheedevi .......Appellant
Versus Prasanna and another .......Respondents
G.S.
Singhvi, J.
1. Leave
granted.
2. This
appeal filed for setting aside order dated 21.7.2008 passed by the learned
Single Judge of Kerala High Court in Writ Petition No.21820 of 2008 whereby he
declined to interfere with the direction given by Sub Judge, Palakkad
(hereinafter described as `the trial Court') to the appellant to pay court fee
on the market value of the plaint schedule property raises an important
question of law relating to interpretation of Section 40 of the Kerala
Court-Fees and Suits Valuation Act, 1959 (for short, `the Act').
3. The
appellant owned 9.98 acres rubber plantation. She executed power of attorney
No.376/2006 in favour of her own daughter (respondent No.1 herein). After
sometime, respondent No.1 transferred the property to her husband (respondent
No.2 herein) by registered sale deed No.1784/2007.
The
appellant filed O.S. No.231/2007 for cancellation of the power of attorney by
alleging that respondent No.1 had misused the same and sold the property to her
husband. By an order dated 21.5.2008, the trial Court directed the appellant to
pay court fees on the market value of the plaint schedule property. The
appellant challenged that order in Writ Petition No.17032/2008 (C) which was
disposed of by the learned Single Judge of Kerala High Court vide his order
dated 26.6.2008, the relevant portion of which reads as under:
"The
learned counsel appearing for the petitioner further submitted that in view of
the contentions raised in the plaint, petitioner has to file an application for
amendment of the plaint modifying the relief sought for. In the nature of the
contentions raised in the plaint, an amendment of the relief is definitely
necessary, as found by the learned Sub Judge. In such circumstances, Writ
Petition is disposed granting liberty to the petitioner to amend the plaint and
to pay the necessary court fee payable on such pleading. It is made clear that
the fact that a time limit is fixed by this Court will not prevent the court
from granting amendment, as it is necessary for an appropriate adjudication of
the dispute involved in the suit. It is made clear that the actual court fee
payable by the plaintiff is to be decided by the trial Court afresh, taking
into consideration the relief sought for in the plaint, in the light of the
amendment of the pleading."
4. In
furtherance of the direction given by the High Court, the appellant applied for
and she was granted permission to amend the plaint and to incorporate prayer
for cancellation of the sale deed executed by respondent No.1 in favour of
respondent No.2. In the amended plaint, value of the property was shown as
Rs.7,00,000/- and accordingly, the court fees was paid. However by an order
dated 3.7.2008, the trial Court directed the appellant to pay court fee on the
market value of the plaint schedule property which was assessed at Rs.12 lakhs
per acre.
5. Writ
Petition No.21820/2008 filed by the appellant against the above mentioned order
was dismissed by the learned Single Judge, who referred to the judgments of the
Division Bench in Krishnan Damodaran v. Padmanabhan Parvathy (1972) Kerala Law
Times 774, P.K. Vasudeva Rao v. Hari Menon AIR 1982 Kerala 35 and Pachayammal
v. Dwaraswamy Pillai (2006) 3 Kerala Law Times 527 and held that in terms of
Section 40 of the Act, the writ petitioner is required to pay court fees on
market value of the property and not on the value specified in the sale deed.
6. Shri
Bechu Kurian Thomas, learned counsel for the appellant argued that the
interpretation placed by the trial Court and the High Court on Section 40 of
the Act is ex facie erroneous and impugned order is liable to be set aside
because that section does not provide for payment of court fee 4 on the market
value of the property for which the document, which is subject matter of the
suit, was executed. Learned counsel emphasized that in terms of Section 40(1),
court fees is required to be paid on the value of the property for which the
document was executed and submitted that the appellant had correctly paid the
court fees as per the value of the property specified in the sale deed i.e.,
Rs. 7 lakhs. In support of his arguments, the learned counsel relied upon the
judgments of the learned Single Judges of Madras High Court in Andalammal v. B.
Kannaiah (1971) 2 Madras Law Journal 205 and of Andhra Pradesh High Court in Allam
Venkateswara Reddy v. Golla Venkatanarayana and others AIR 1975 Andhra Pradesh
122.
7. Shri
T.L.V. Iyer, learned senior counsel appearing for the respondent argued that
the expression `value of the property' for which the document was executed
means market value of the property and the same cannot be read as value
specified in the document. Learned senior counsel submitted that different High
Courts have, following the judgment of the Full Bench of Madras High Court in
Kutumba Sastri v. Sundaramma AIR 1939 Madras 462, consistently held that the
market value of the property has to be taken into consideration for the purpose
of payment of the court fees. Learned senior counsel relied upon the judgments
of different High Courts - Appikunju Meerasayu v. Meeran Pillai (1964) Kerala
Law Times 895, 5 Uma Antherjanam v. Govindaru Namboodiripad and others (1966)
Kerala Law Times 1046, T. Tharamma v. T. Ramchandra Reddy and others AIR 1968
Andhra Pradesh 333, Sengoda Nadar v. Doraiswami Gounder and others AIR 1971 Madras
380, Allam Venkateswara Reddy v. Golla Venkatanarayana and others (supra), S.
Krishna Nair and another v. N. Rugmoni Amma AIR 1976 Madras 208 and Smt.
Narbada v. Smt. Aashi AIR 1987 Rajasthan 162 and argued that the learned Single
Judge did not commit any error by refusing to interfere with the order of the
trial Court.
8. We
have considered the respective submissions. Sections 7(1) (2) (3) (3A) (4),
25(a) (b), 27(a), 29, 30, 37(1) (3), 38, 40, 45 and 48 of the Act which have
bearing on the issue raised by the appellant, read as under:
"7.
Determination of market value (1) Save as otherwise provided, where the fee
payable under this Act depends on the market value of any property, such value
shall be determined as on the date of presentation of the plaint.
(2) The
market value of agricultural land in suits falling under Section 25(a), 25(b),
27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the
annual gross profits of such land where it is capable of yielding annual
profits minus the assessment if any made to the Government.
(3) The
market value of a building shall in cases where its rental value has been
entered in the registers of any local authority, be ten times such rental value
and in other cases the actual market value of the building as on the date of
the plaint.
6 (3A)
The market value of any property other than agricultural land and building
falling under sub-sections (2) and (3) shall be the value it will fetch on the
date of institution of the suit.
(4) Where
the subject-matter of the suit is only a restricted or fractional interest in a
property, the market value of the property shall be deemed to be the value of
the restricted or fractional interest and the value of the restricted or
fractional interest shall bear the same proportion to the market value of the
absolute interest in such property as the net income derived by the owner of
the restricted or fractional interest bears to the total net income from the
property.
25. Suits
for declaration.- In a suit for a declaratory decree or order, whether with or
without consequential relief, not falling under Section 26- (a) where the
prayer is for a declaration and for possession of the property to which the
declaration relates, fee shall be computed on the market value of the property
or on rupees one thousand whichever is higher;
(b) where
the prayer is for a declaration and for consequential injunction and the relief
sought is with reference to any immovable property, fee shall be computed on
one-half of the market value of the property or on rupees one thousand,
whichever is higher;
27. Suits
for injunction.- In a suit for injunction- (a) Where the reliefs sought is with
reference to any immovable property, and (i) where the plaintiff alleges that
his title to the property is denied, or (ii) where an issue is framed regarding
the plaintiff's title to the property, fee shall be computed on one-half of the
market value of the property or on rupees five hundred, whichever is higher;
29. Suits
for possession under the Specific Relief Act, 1877.- In a suit for possession
of immovable property under Section 9 of the Specific Relief Act, 1877 (Central
Act 1 of 7 1877), fee shall be computed on one-third of the market value of the
property or on rupees one hundred and fifty, whichever is higher.
30. Suits
for possession not otherwise provided for.- In a suit for possession of
immovable property not otherwise provided for, fee shall be computed, on the
market value of the property or on rupees one thousand, whichever is higher.
37.
Partition suits (1) In a suit for partition and separate possession of a share
of joint family property or of property owned, jointly or in common, by a
plaintiff who has been excluded from possession of such property, fee shall be
computed on the market value of the plaintiff's share.
(2) xxx
xxx xxx (3) Where, in a suit falling under sub-section (1) or sub- section (2),
a defendant claims partition and separate possession of his share of the
property, fee shall be payable on his written statement computed on half the
market value of his share or at half the rates specified in sub-section (2),
according as such defendant has been excluded from possession or is in joint
possession.
38. Suits
for joint possession.- In a suit for joint possession of joint family property
or of property owned, jointly or in common, by a plaintiff who has been
excluded from possession, fee shall be computed on the market value of the
plaintiff's share.
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-- 8 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 be deemed to be a suit to set aside a decree
within the meaning of this section.
45. Suits
under the Survey and Boundaries Act.-In a suit under Section 14 of the Madras
Survey and Boundaries Act, 1923, Section 13 of the Travancore Survey and
Boundaries Act of 1094, or Section 14 of the Cochin Survey Act, II of 1074, fee
shall be computed on one-half of the market value of the property affected by
the determination of the boundary or on rupees one thousand, whichever is
higher.
48.
Interpleader suits.
(1) In an
interpleader suit, fee shall be payable on the plaint at the rates specified in
Section 50.
(2) Where
issues are framed as between the claimants, fee shall be payable computed on
the amount of the debt or the money or the market value of other property,
movable or immovable, which forms the subject-matter of the suit. In levying
such fee, credit shall be given for the fee paid on the plaint; and the balance
of the fee shall be paid in equal shares by the claimants who claim the debt or
the sum of money or the property adversely to each other.
(3) Value
for the purpose of determining the jurisdiction of Courts shall be the amount
of the debt, or the sum of money or the market value of other property to which
the suit relates."
9.
Section 7 (iv), (iv-A) (as inserted by Madras Act of 1922) and (v) of the
Court-fees Act, 1870 (for short, `the Court-fees Act'), which have been
considered in various judgments of Madras High Court relied upon by learned
counsel for the respondents reads as under:- "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:- "
xxx xxx
xxx (iv) In suits- for movable property of no market-value.-(a) for moveable
property where the subject-matter has no market-value, as, for instance, in the
case of documents relating to title, to enforce a right to share in joint
family property.-(b) to enforce the right to share in any property on the
ground that it is joint family property, for a declaratory decree and
consequential relief.-(c) to obtain a declaratory decree or order, where
consequential relief is prayed, for an injunction.-(d) to obtain an injunction,
for easements.-(e) for a right to some benefit (not herein otherwise provided
for) to arise out of land, and for accounts.-(f) for accounts- according to the
amount at which the relief sought is valued in the plaint or memorandum of
appeal;
In all
such suits the plaintiff shall state the amount at which he values the relief
sought (iv-A) In a suit for cancellation of a decree for money or other
property having a money value or other document securing money or other
property having such value, the valuation should be according to the value of
the subject-matter of the suit and such value shall be if the whole decree is
sought to be cancelled, the amount or value of the property for which the
decree was passed, and if a portion of the decree is sought 1 to be cancelled,
such part of the amount or value of the property.
(added by
Madras Act of 1922) for possession of land, houses and gardens.- (v) In suits
for the possession of land, houses, and gardens - according to the value of the
subject-matter; and such value shall be deemed to be- 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 - five 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 - fifteen times such net profits;
but where
no such net profits have arisen there from - the amount at which the Court
shall estimate the land with reference to the value of similar land in the
neighbourhood;
(d) where
the land forms part of an estate paying revenue to Government, but is not a
definite share of such estate and is not separately assessed as above-mentioned
- the market-value of the land:"
10.
Before proceeding further, we may notice two well recognized rules of
interpretation of statutes. The first and primary rule of construction is that
the intention of the legislature must be found in the words used by the
legislature itself. If the words used are capable of one construction, only
then it would not be open to the courts to adopt any other hypothetical
construction on the ground that such hypothetical construction is more
consistent with the alleged object and policy of the Act. The words used in the
material provisions of the statute must be interpreted in their plain
grammatical meaning and it is only when such words are capable of two
constructions that the question of giving effect to the policy or object of the
Act can legitimately arise - Kanai Lal Sur v. Paramnidhi Sadhukhan 1958 SCR
360. The other important rule of interpretation is that the Court cannot
rewrite, recast or reframe the legislation because it has no power to do so.
The Court cannot add words to a statute or read words which are not therein it.
Even if there is a defect or an omission in the statute, the Court cannot
correct the defect or supply the omission. - Union of India v. Deoki Nandan
Aggarwal 1992 Supp (1) SCC 323, Shyam Kishori Devi v. Patna Municipal
Corporation (1966) 3 SCR 366.
11.
Section 7 of the Act lays down different modes for determination of the market
value of the property for the purpose of payment of court fee.
Sub-section
(1) of Section 7 begins with the expression "Save as otherwise 1
provided" and lays down that where the fee payable under the Act depends
on the market value of any property, such value shall be determined as on the
date of presentation of the plaint. From the plain language of Section 7(1), it
is evident that it merely specifies the methodology for determination of the
market value of the property where the court fee payable under some other
provisions of the Act depends on the market value of the property which is
subject matter of the suit. Sections 25, 27, 29, 30, 37, 38, 45 and 48 deal
with different kinds of suit i.e., suits for declaration, suits for injunction,
suits for possession under the Specific Relief Act, 1877,
suits for possession not otherwise provided for, partition suits, suits for
joint possession, suits under the Survey and Boundaries Act and interpleader
suits. These sections provide for payment of court fee computed on the market
value of the property. Sub-section (2) of Section 7 lays down that the market
value of the agricultural land in suits falling under Sections 25(a), 25(b),
27(a), 29, 30, 37(1), 37(3), 38, 45 and 48 shall be deemed to be ten times the
annual gross profits of such land where it is capable of yielding annual
profits minus the assessment, if any, made by the Government. In terms of sub-
section (3), the market value of a building in cases where its rental value has
been entered in the registers of any local authority, shall be ten times such
rental value and in other cases, the actual market value of the building as on
the date of the plaint. Clause (a) of sub-section (3) lays down that market
value of any property other than agricultural land and building shall be the 1
value it will fetch on the date of institution of the suit. Sub-section (4) lays
down that where subject matter of the suit is only a restricted or fractional
interest in a property, the market value of the property shall be deemed to be
the value of the restricted or fractional interest. Section 40 deals with suits
for cancellation of decrees etc. which are not covered by other sections. If
this section is interpreted in the light of the expression `save as otherwise
provided' used in Section 7(1), it becomes clear that the rule enshrined
therein is a clear departure from the one contained in Section 7 read with
Sections 25, 27, 29, 30, 37, 38, 45 and 48 which provide for payment of court
fee on the market value of the property. In that sense, Section 40 contains a
special rule. Section 40(1) lays down that 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 further lays down that such value shall be deemed to be if the
whole decree or other document 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 constitute the basis for fixation of court
fee. Sub-section (2) lays down that if the decree or other document is such
that the liability under it 1 cannot be split up and the relief claimed relates
only to a particular item of the property belonging to the plaintiff or the
plaintiff's share in such property, fee shall be computed on the value of such
property, or share or on the amount of the decree, whichever is less. The
deeming clause contained in the substantive part of Section 40(1) makes it
clear that in a suit filed for cancellation of a document which creates any
right, title or interest in immovable property, the court fees is required to
be computed on the value of the property for which the document was executed.
To put it differently, the value of the property for which the document was
executed and not its market value is relevant for the purpose of court fee. If
the expression `value of the subject matter of the suit' was not followed by
the deeming clause, it could possibly be argued that the word `value' means the
market value, but by employing the deeming clause, the legislature has made it
clear that if the document is sought to be cancelled, the amount of court fee
shall be computed on the value of the property for which the document was
executed and not the market value of the property. The words "for
which"
appearing
between the words "property" and "other documents" clearly
indicate that the court fee is required to be paid on the value of the property
mentioned in the document, which is subject matter of challenge.
12. If
the legislature intended that fee should be payable on the market value of the
subject matter of the suit filed for cancellation of a document 1 which
purports or operates to create, declare, assign, limit or extinguish any
present or future right, title and interest, then it would have, instead of
incorporating the requirement of payment of fees on value of subject matter,
specifically provided for payment of court fee on the market value of the
subject matter of the suit as has been done in respect of other types of suits
mentioned in Sections 25, 27, 29, 30, 37, 38, 45 and 48. The legislature may
have also, instead of using the expression "value of the property for
which the document was executed", used the expression "value of the
property in respect of which the document was executed". However, the fact
of the matter is that in Section 40(1) the legislature has designedly not used
the expression `market value of the property'.
13. If
the interpretation placed by the trial Court and the High Court on the
expression "value of the property for which the document was
executed"
is
accepted as correct then the word `value' used in Section 40(1) of the Act will
have to be read as `market value' and we do not see any compelling reason to
add the word `market' before the word `value' in Section 40(1) of the Act.
14. We
may now advert to the judgments relied upon by the learned counsel for the
parties and some other judgments of different High Courts in 1 which Section
40(1) of the Act and similar provisions of other State legislations have been
interpreted.
15. In
Venkata Narasimha Raju v. Chandrayya AIR 1927 Madras 825, the Division Bench of
Madras High Court interpreted Section 7 (v) (a) of the Court-fees Act as
amended by Madras Act of 1922 and observed:
"One
point raised is whether the market value of the property should not be taken
for the purpose of this valuation, or whether the statutory value should be
adopted. We think the latter is the proper course as there is nothing in the
Act to show that the market value is the value contemplated in S.7 (iv) (a).
When there is in the Act itself a special rule as to valuing property in suits
for Court-fees, we think it is proper to take that method of valuation in
preference to any other method to get the value where there is no indication
that any other method should be adopted."
(emphasis
supplied)
16. In
Balireddi v. Khatipulal Sab AIR 1935 Madras 863, the learned Single Judge of
the High Court considered the question whether in a suit for setting aside
mortgage deeds and sale deeds, the plaintiff is required to pay court-fees on
the market value of the property and answered the same in affirmative. The
learned Judge referred to two earlier judgments in Venkata Narasimha Raju v.
Chandrayya (supra) and Venkatasiva Rao v.
Satyanarayanamurthi
AIR 1932 Madras 605 but disagreed with the ratio of those judgments and held:
"The
amount of court-fee payable depends upon "the value of the subject-matter
of the suit," that is what the section says.
1 Where a
document securing money is sought to be cancelled, the section goes on to say,
that the value of the subject-matter shall be deemed to be "the amount for
which the document is executed." In the case of a mortgage instrument
therefore the court-fee has to be computed on the amount for which the
instrument is executed, in other words, the principal amount secured by it.
This is the plain effect of the words of the section, and I fail to see how the
method of computation fixed in S.7(v) can possibly be applied. Now as regards
the sale- deed, the question arises, is the value referred to in the section,
the actual value of the property, that is to say, its market value or the
artificial value prescribed by S.7 (v)? The last mentioned section deals with
suits for possession and the legislature has expressly enacted that in such suits
the value shall be determined in a particular manner. Cl. (iv-A) refers simply
to "the value of the property," which means "value" as
generally understood, whereas Cl. (v) prescribes an artificial method of
valuation. There is no reason to construe Cl. (iv-A) in the light of Cl. (v)
which deals with a specific matter; indeed, when the legislature intends to
prescribe an artificial method, it says so in express terms, as Cl. (iv-c) also
shows. I am therefore of the opinion that in the case of the sale-deeds, the
amount of court- fee payable must be computed on the market value of the
properties with which they deal."
17. In
Kutumba Sastri v. Sundaramma (supra), the Full Bench of Madras High Court
interpreted paragraph (iv-A) of Section 7 of the Court- fees Act. The Full
Bench referred to the earlier judgments in Venkata Narasimha Raju v. Chandrayya
(supra), Venkatasiva Rao v. Satyanarayanamurthi (supra), Balireddi v.
Khatipulal Sab (supra) and approved the view expressed by the learned Single
Judge in Balireddi v.
Khatipulal
Sab (supra) by making the following observations:
"We
consider that the view taken by Venkatasubba Rao J. in 59 Mad 240 is preferable
to that taken in 53 MLJ 267. Para (iv-A) deals with suits where it is necessary
for the plaintiff to seek the 1 cancellation of a decree or of a deed. Para (v)
relates merely to suits for possession. In a suit for possession it is not
always necessary to set aside a decree or a document. Where a suit is merely
for possession the Act says how the value of the subject- matter shall be
arrived at. When adding para (iv-A) to S.7 the Legislature did not say that in
a suit falling within the new paragraph the valuation of the subject-matter
should be arrived at in accordance with the method indicated in para (v). It
said that a suit within para (iv-A) should be valued according to the value of
the property, and the value of the property, unless there is an indication to
the contrary, must mean to its market value.
By the
Amending Act of 1922 para (iv-C) was also amended.
Before
the amendment, this paragraph provided that in a suit to obtain a declaratory
decree or order where a consequential relief was prayed, the value should be
according to the value of the relief sought by the plaintiff. The Amending Act
inserted the Proviso to the effect that in a suit coming under this paragraph
in a case where the relief sought is with reference to immovable property the
valuation shall not be less than half the value of the immovable property
calculated in the manner provided for by paragraph (v). There the Legislature
expressly provided that the method of calculation was to be in accordance with
para (v) but in adding para (iv-A) no such direction was given. The court-fee
is to be calculated on the amount or the value of the property and to give the
wording of para (iv-A) its plain meaning the valuation must be the valuation
based on the market value of the property at the date of the plaint."
(emphasis
supplied)
18. In
Navaraja v. Kaliappa Gounder (1967) 80 Madras Law Weekly 19 (SN), the learned
Single Judge noted that in the earlier suit, the properties were valued at
Rs.4000/-, referred to Section 40(1) of the Madras Court-fees and Suits
Valuation Act, 1955, which is pari materia to the Section 40 of the Act and observed:
"............that
as the decree itself specified the value of the property it will fall within
the language of Section 40(1), 1 namely, the amount or value of the property
for which the decree was passed and ordered that the court-fee has to be paid calculated
on the sum of Rs.4000, which is the value given in the decree, and not the
market value of the properties on the date of the filing of the plaint."
(emphasis
supplied)
19. In
Arunachalathammal v. Sudalaimuthu Pillai (1968) 83 Madras Law Weekly 789,
another learned Single Judge examined the correctness of order passed by the
Subordinate Judge, Tirunelveli, who had allowed the plaintiff to pay the
court-fee for the cancellation of settlement deed on the value of the document
i.e. Rs.3500/-. While dismissing the revision filed by the defendants, the
learned Judge referred to Section 40(1) of the Madras Act, distinguished the
Full Bench judgment in Kutumba Sastri v.
Sundaramma
(supra) and observed:
"It
will be seen that the section provides for suits (1) relating to cancellation
of a decree for money, (2) cancellation of a decree for other property having a
money value, and (3) cancellation of other document which purports or operates
to create, declare, assign, limit or extinguish rights in moveable or
immoveable property. The sub-section provides that fee shall be computed on the
value of the subject matter of the suit. Then it proceeds to state how such
value should be calculated. It provides that if the whole decree is sought to
be cancelled, the amount or value of the property for which the decree was
passed should be taken into account. In the case of other document which
purports or operates to create, declare, assign, limit or extinguish rights in
moveable or immoveable property, the value shall be deemed to be the value of
the property. It is not clear as to whether the words "the amount or value
of the property for which the decree was passed" are applicable to the
cancellation of a document which creates or declares rights in moveable or immoveable
property. In the case of suits for cancellation of either documents, apart from
suits for cancellation of a decree 2 for money or other property, the above
clause would be certainly applicable. This would mean that in the case of suits
for cancellation of other documents, the value of the subject matter of the
suit shall be deemed to be the amount for which the documents was executed. It
was submitted on behalf of the defendants that even in the case of a suit for
cancellation of other documents, the value shall be deemed to be the value of
the property. But this contention would ignore the effect of the words
"value of the property for which the decree was passed".
Even
conceding that the value of the property should be taken into account in suits
for cancellation of other documents, there are two modes provided for to
compute the value of the subject matter of the suit, (1) the value of the
property and (2) the amount for which the document was executed.
Mr.
Venugopalachari, learned counsel for the petitioners, submitted that this view
is opposed to the one taken in the decision in Kutumba Sastri v. Sundaramma
where the Full Bench held that in a suit for cancellation of a deed of
conveyance the valuation must be the valuation based on the market value of the
property at the date of the plaint. The Full Bench was considering the question
as to the Court fee payable in a suit for cancellation of a deed of conveyance
and for possession of the property covered by the deed. The court held that the
plaintiff should value his relief in accordance with the provisions of
S.7(4)(A), and not according to S.7(V) of the old Court fees Act, 1870. After
referring to the difference of opinion between the various decisions, the Full
Bench preferred the view taken in Bali Reddi v. Khatifulal Sab 59 Mad. 240,
followed in Venkatakrishniah v. All Sahib 48 L.W. 277. S.
7(4-A),
of the old Act is slightly differently worded and it runs as follows:- "In
a suit for cancellation of a decree for money or other property having a money
value, or other document securing money or other property having such value,
according to 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 the value of the property for which the decree was
passed or the other document executed, 2 if a part of the decree or other
document is sought to be cancelled, such part of the amount or value of the
property".
It will
be seen that the above section relates to a suit for cancellation of a decree
for money or other property having a money value, or other document securing
money or other property having such value. There was some doubt whether the
third part of the section relating to either document securing money would
include sales. In Balireddy v. Badul Sabar, Venkatasubba Rao, J. referring to
his earlier decision in Doraiswami v. Thangavelu held that sale deeds would
come within the meaning of this section. Whether this sub-section includes sale
deeds or need not detain us, as S. 40(1) of Madras Act XIV of 1955 is
differently worded and there can be no doubt that it brings within its purview
sale deeds as it relates to other documents which purports or operates to
create, declare, assign, limit or extinguish any right in moveable or
immoveable property, S. 7(iv-A) of the old Act states that the value be deemed
to be "if the whole decree or other document is sought to be cancelled,
the amount or the value of the property for which the decree was passed or the
other document executed".
The same
words are used in S. 40(1) of the new Act. In construing this sub-clause in S.
7(iv-A) of the old Act, the Full Bench pointed out in the decision cited above
that the suit within the meaning of the above section should be valued
according to the value of the property, unless there is an indication to the
contrary, must mean its market value. It may be noted that the court was
considering the value of the property and does not appear to have taken note of
the words "the other document executed".
As
already pointed out, S. 7(iv-A) of the Old Act as well as S. 40(1) of the
present Act deal with suits for cancellation of a decree for money,
cancellation of a decree for other property having a money value and suit for
cancellation other document.
In the
case of other documents, the clause "the amount or the value of the
property for which the decree was passed" cannot be held to be applicable
and the only clause that can be properly applied is only the value for which
the document was executed.
In the
third category in S. 40(1), to the words `other document, the words `which
purports or operates to create, declare, assign, limit or extinguish' rights in
moveable or immoveable property 2 are included. Obviously in suits for
cancellation of other documents referred to in S. 40(1) of the new Act the
valuation should be the value of the other document executed. In Balireddy v.
Abdul Satar the court refers to the section which says that the value of the
subject matter shall be deemed to be the amount for which the document is
executed. But it confined its discussion to the actual value of the property
and held that it referred only to the market value. This decision also does not
refer to the valuation of the document on the basis of the amount for which the
document is executed."
(emphasis
supplied)
20. In
Appikunju Meerasayu v. Meeran Pillai (supra), the learned Single Judge of
Kerala High Court relied on the judgment of Madras High Court in Narasamma v.
Satyanarayana AIR 1951 Madras 793 and observed:
"As
I have pointed out earlier, the emphasis in S.40(1) of the Court Fees Act is
regarding the subject matter of this suit and in respect of that subject matter
which admittedly is immovable property it will have to be valued on the amount
or valued as the property which was no doubt covered by the decree in O.S.
21/1125.
But the value or amount must certainly be the market value as on the date of
the filing of the suit."
The same
view was reiterated by another learned Single Judge of the Kerala High Court in
Uma Antherjanam v. Govindaru Namboodiripad and others (supra).
21. In
Sengoda Nadar v. Doraiswami Gounder and others (supra), the learned Single
Judge of Madras High Court referred to earlier judgments but 2 disagreed with
the view expressed by the other learned Single Judges in Navaraja v. Kaliappa
Gounder (supra) and Arunachalathammal v.
Sudalaimuthu
Pillai (supra) and followed the ratio of Full Bench judgment by recording the
following observations:
"With
respect, I need hardly add that this is not the correct reading of the Full
Bench decision. He has concluded by stating that obviously in suits for
cancellation of "other documents"
referred
to in Section 40 (1) of the present Act, the valuation should be the value of
the other document executed. I have already pointed out that in the documents
just as in the case of decrees, the distinction is between those that dealt
with money and those that dealt with property. The amount mentioned in the
decree or the document is relevant only when the question is with regard to the
decree for money or document securing money. But in the case of decrees or
documents dealing with property of money value, the value of the subject-matter
of the suit should be computed on the value of the property for which the
decree was passed or the document was executed. I need not repeat that the
valuation in respect of the property dealt with by the decree or document
should be the market value and such a market value should be as on the date of
suit."
22. In S.
Krishna Nair and another v. N. Rugmoni Amma (supra), another learned Single
Judge followed the ratio of Sengoda Nadar v. Doraiswami Gounder and others
(supra) and held that in a suit for cancellation of decree, the property is to
be valued under Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation
Act, 1955 and the court fee is required to be paid on the market value of the
property as on the date of the plaint.
23. In
Krishnan Damodaran v. Padmanabhan Parvathy (supra), the Division Bench of
Kerala High Court reiterated the views expressed in Kutumba Sastri v.
Sundaramma (supra), Appikunju Meerasayu v.
Meeran
Pillai (supra) and Sengoda Nadar v. Doraiswami Gounder and others (supra) and
held that court fee is payable on the market value of the property covered by
the document and not on the basis of the valuation given in the document.
24. In
P.K. Vasudeva Rao v. Hari Menon (supra), the Division Bench of the Kerala High
Court held as under:
"True,
as contended for on behalf of the plaintiff-revision petitioner, S.40 nowhere
uses the expression `market value'.
But it is
clear therefrom that the legislative intent is to levy court-fee on the just
equivalent in money of the `other property' comprised in the decree or portion
thereof sought to be set aside; or dealt with in the `other document' or part
thereof sought to be cancelled. The section opens by saying that `in a suit for
cancellation of a decree for money or other property having a money value'
(emphasis supplied) `fee shall be computed on the value of the subject matter
of the suit'.
`Money
value' of a property is its worth in terms of the currency of the land or in
other words, is such money- equivalent thereof in open market; and not any
amount less than that as where it is overvalued at a fancy-price. It cannot be
that when, what is sought to be cancelled is a decree or part thereof for
`other property', i.e. property other than money, the value of such property
for computation of court-fees is its `money- value', and when, what is sought
to be cancelled is a document or part thereof in respect of `other property',
the value of such property for such computation is not its `money-value'. Value
of the subject matter, namely, value of the `other property' in both cases is
its money-value.
2 The
object of the second and the third paras in sub-section (1) of S.40 is not to
introduce any fiction but to provide for two situations, namely, (i) where the
decree or the document as a whole is sought to be cancelled and (ii) where only
part thereof is sought to be cancelled. In the first situation, the value of
the subject matter is the amount for which the decree was passed or the
document was executed; or the value of the property concerning which the decree
was passed or the document was executed. In the second class of cases, the
value of the subject matter of the suit is such part of the amount for which
the decree was passed or the document was executed, in respect of which part, the
decree or the document is sought to be cancelled; or the value of such part of
the property concerning which the decree was passed or the document was
executed, in respect of which part, the decree or the document is sought to be
cancelled.
Section
40(1) has to be read as a whole. So read: (A) when the suit is for cancellation
of a decree or other document for money, then the value of the subject-matter
of the suit will be:- (i) the whole amount for which the decree was passed or
the document was executed, if what is sought to be cancelled is the whole of
the decree or the whole of the document; and (ii) such part of the amount for
which the decree was passed or the document was executed, if only part of the
decree or part of the document is sought to be cancelled; (B) when the suit is
for cancellation of a decree or other document for a property having
money-value, then, the value of the subject-matter of the suit will be:- (i) if
the whole of the decree or the document is sought to be cancelled - the value
of the property covered by the decree or the document; and (ii) if only part of
the decree or of the document is to be cancelled; value of such part of the
property in respect of which the decree was passed or the document was executed
and to which extent such decree or such document is to be cancelled. We are not
impressed with the submission that there is a distinction between the
expressions `the value of the property for which the decree was passed or other
document was executed' and `the value of the property in respect of which the
decree was passed or other document was executed' for the purpose of
computation of court-fees. The scheme of S.40 is to make court-fees leviable on
the sum of money or portion thereof, when what the plaintiff seeks is to get
rid of his obligation and liability therefor or part 2 thereof under a decree
passed or a document executed by cancellation thereof, and on the
money-equivalent of the property or portion thereof, when what he seeks to get
rid of is his obligation and liability in relation to that property or portion
thereof under a decree passed or a document executed in respect of it by
cancellation thereof."
25. In R.
Rangiah v. Thimma Setty (1963) 1 Mysore Law Journal 67, the Division Bench of
Mysore High Court interpreted Section 4(iv)(A) of Mysore Court Fees Act, which
is substantially similar to Section 40 of the Act and held that:
"Now,
one thing which is very clear from the paragraphs 1 & 2 of S.4 (iv) A is
that in a suit brought for the cancellation of a document executed for the
purpose of securing property, the Court Fee payable is on the value of such
property. Although those paragraphs do not refer in terms to the market value
of the property, as some of the other parts of the Act do, I have no doubt in
my mind that the word `value' occurring in those paragraphs has reference to no
other value than the market value. The word `value' when it occurs in an
enactment like the Court Fees Act, has to my mind, particularly known and
definite meaning. That word has reference to the price which the property will
fetch when exposed to the test of competition.
Mr.
Gopivallabha Iyengar had to admit that the word `value' occurring in the first
paragraph would have to be understood as the market value if paragraphs 2 and 3
did not exist in S.4(iv) A. If, therefore, the word `value' occurring in the
first paragraph means market value, I see nothing in paragraphs 2 and 3 on
which Mr. Gopivallabha Iyengar strongly relied which can persuade me to take
the view that the word `value' occurring in the first paragraph which, as
ordinarily understood, is the market value, should be understood differently.
Paragraph
2 does no more than to merely provide that, if a document is sought to be
cancelled in its entirety, the Court Fee is payable on the value of the whole
of the property in 2 respect of which the document is executed. Likewise
paragraph 3 merely provides that where the cancellation sought is a partial
cancellation, Court Fee is payable only on the value of the property in respect
of which cancellation is sought. It is for that purpose that the words
"value shall be deemed to be" are used by the Legislature in the
first paragraph of the clause and not for the purpose of assigning to the word
`value' occurring in the first paragraph a meaning different from that which
has to be ordinarily given to it.
It is no
doubt true that the second paragraph of S.4(iv) A directs that the Court Fee
payable in a suit brought for the cancellation of a document is the Court Fee
on the value of the property `for which' the document was executed. Ordinarily
the expression `for which' occurring in that paragraph might have justified the
interpretation that the amount on which the Curt Fee has to be paid is the
amount specified in the document.
But,
that, that would not be correct way of understanding those words occurring in
paragraph 2 of that clause is clear from the fact that S.4(iv) A does not
provide merely for cancellation of a document executed for a specified
consideration such as a sale deed, but also provides for the payment of Court
Fee even in suits brought for cancellation of other documents such as a deed of
settlement, a gift deed or a trust deed. In the latter category of cases it
would not be appropriate to regard those documents as executed for a
consideration or a specified amount and those cases would not be cases in which
there would be any value `for which the document is executed.
The
second paragraph which requires the payment of Court Fee on the value of the
property `for which' the document was executed, does not, when properly
understood, direct the payment of such Court Fee on the value for which the
document was executed, but on the value of the property for which it was
executed. In other words, the words `for which' occurring in that paragraph do
not refer to the value but to the property to which the document relates. The
words `for which occurring in that paragraph, in my opinion, mean `for securing
which', so that what that paragraph directs is the payment of Court Fee on the
value of the property for securing which the document is executed.
2 That,
that is the correct interpretation is indicated by the word `securing'
occurring in the first paragraph of the clause in the context of a document of
which cancellation is sought.
It
therefore follows that what is relevant for the purpose of S.4(iv) A is not the
value of the property specified in the document but its real and actual value
when the suit is brought.
It is on
that value that the Court fee has to be paid if the suit is for the
cancellation of a document recording a transaction involving such
property."
26. In
Pachayammal v. Dwaraswamy Pillai (supra), another Division Bench of Kerala High
Court interpreted Sections 7 and 40 of the Act and held:
"Section
7 of the Act though deals with determination of market value, it starts with a
saving clause. A reading of Section 7(1) makes it clear that if there is a
specific provision in the Act for valuing the suit, the Sub-sections (2) to (4)
of Section 7 can have no application. According to the counsel for the
petitioners, Section 40 is an independent provision for valuation of suits for
cancellation of decrees and documents and in view of Section 7(1), market value
of the property is not a criteria at all. Whenever market value of the property
is to be taken into account, it is specifically stated in the statute.
Sections
24, 25, 27, 29, 30, 37, 38, 45 & 48 etc, specifically provide that market
value of the property involved in the suit is to be taken as basis for
valuation. But, the word 'market' is conspicuously absent in Section 40. When
the section is plain and unambiguous, courts should not venture to add words to
it to give an entirely different scope to the said provisions never intended by
the legislature. Therefore, it was argued that concept of "market value of
the property' cannot be brought into Section 40. Learned Counsel invited our
attention to the decisions of the Apex Court in Gurudevdatta VKSSS Maryadit and
Ors. v. State of Maharashtra and Ors (2001) 4 SCC 534 (Paragraph 26) and Padma
Sundara Rao (Dead) and Ors. v.
State of
T.N. and Ors. (2002) 3 SCC 533 (Paragraphs 14 and 15). It is true that when the
words of a statute are clear, plain or 2 unambiguous, i.e. they are reasonably
susceptible to only one meaning, the courts are bound to give effect to that
meaning irrespective of consequences. The rule stated by TINDAL, C.J.
in Sussex
Peerage case, (1844) 11 Cl & F 85, p. 143) is in the following form:
"If the words of the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves do alone in such cases best declare the
intent of the lawgiver".
Here, the
question is what is clearly stated in Section 40 as the criteria for valuation
of suit filed for cancellation of a document. Section 40 of the Act mandates
that if a suit is filed for cancelling a document which creates, assigns or
extinguishes the right, title or interest in an immovable property, if the
whole document is to be cancelled, the value of the property for which the
document was executed and if plaint is only to cancel part of the document,
such part of the value of property for which document was executed is the basis
for suit valuation. Therefore, value depends on the value of property for which
document was executed and sought to be cancelled and not the value mentioned in
the document. Here, a gift deed is sought to be cancelled. Then on a plain
meaning of Section 40, suit should be valued at the value of the property for
which gift deed was executed and not the value of the document or value
mentioned in the document. If a gift deed is executed out of love and
affection, which is a valid consideration, suit valuation depends upon not on
estimation of value of love and affection or null value, but, on the value of
the property covered by the gift deed. Then the question is what is the value
of property at the time of filing the suit. In legal terms value of property
means market value of property and when valuation is considered with regard to
suit valuation, it can only be market value of property at the time of filing
the suit and nothing else.
Section
7(1) clearly states that except otherwise provided, court fee payable under the
Act depends on the market value determined on the date of presentation of
plaint. No contrary indication is made in Section 40."
27. In
Smt. Narbada v. Smt. Aashi AIR 1987 Rajasthan 162, the learned Single Judge of
Rajasthan High Court followed the ratio of the Division 3 Bench of Kerala High
Court in P.K. Vasudeva Rao v. Hari Menon (supra) and held that in a suit for
cancellation of decree, the court fee is required to be paid on the market
value of the property.
28. In
Andalammal v. B. Kanniah (1971) II Madras Law Journal 205, the learned Single
Judge considered the question relating to court fee in the context of a suit
filed for cancellation of a settlement deed on the ground that the same had
been procured by fraudulent misrepresentation. In the settlement deed, the
property was valued at Rs.10,000/-. The learned trial Court held that the suit
should be valued on the market value of the property as on the date of plaint
and not on the basis of the value of suit in the settlement deed and
accordingly directed the plaintiff to pay deficit court fee after furnishing
the market value of the property. The learned Single Judge referred to Section
40 of the Madras Act and held:
"It
is important to mark the words "the amount or value of the property for
which the document was executed". If the Legislature had said "the
amount or value of the property in respect of which the document was
executed", it would be reasonable to hold that the basis shall be the
market value of the property, regardless of what the document says it is. But
as the section refers to "the amount or value of the property for which
the document was executed", the legislative intent is clear that the basis
for the purpose of valuation shall be the amount or value mentioned in the
document itself. Evidently, the intention of the Legislature is that when a
person seeks to cancel a document executed by himself, he shall pay Court-fee
upon the value which he has chosen to put upon the property in the document he
seeks to cancel. The word "value" ordinarily connotes the price set
on a thing, and when the Legislature 3 directs that the value of the
subject-matter shall be deemed to be the amount or value of the property for
which the document was executed, I see no warrant for ignoring the plain
language or the section and holding that the value shall be the market value of
the property. In fact, the Legislature has expressly used the words
"market value" in twelve other sections of the Act in contra
distinction to the word "value" used in section 40(1) of the Act. I,
therefore, hold that the Court-fee paid by the petitioner upon the basis of the
value of the property as given in the settlement deed is correct."
29. In
Allam Venkateswara Reddy v. Golla Venkatanarayana AIR 1975 A.P. 122, a learned
Single Judge of Andhra Pradesh High Court construed Section 37 of the Andhra
Pradesh Court-fees and Suits Valuation Act, which is pari materia to Section 40
of the Act, and held:
"Section
37(1) contemplated two kinds of suits, viz. suits for cancellation of decrees,
whether they are for money or for property having a money value and suits for
cancellation of documents creating or extinguishing rights whether in money,
movable or immovable property. It is stated therein that for the purpose of
payment of court-fee in the suit the fee shall be computed on the basis of the
value of the subject-matter of the suit and that such value shall be deemed to
be the one indicated in clause (a) of Section 37(1) wherein it is mentioned
that 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 shall be deemed to be the value for computation of court-fee
. From this it is very clear that for cancellation of a document regarding a
property the value shall be deemed to be the amount for which the document
regarding a property the value shall be deemed to be the amount for which the
document sought to be cancelled was executed with regard to the property. In
the present case, the two sale deeds in question were executed for a sum of
Rs.18,000/-. Therefore, the court-fee has to be paid on that amount and not on
the present market value of the properties which are the subject-matter of the
two sale deeds. A reading of Section 37 does not show that the court-fee has to
be 3 computed on the basis of the present market value of the document sought
to be cancelled."
30. In
view of our analysis of the relevant statutory provisions, it must be held that
the judgments of the Division Bench of Madras High Court and of the learned
Single Judges in Venkata Narasimha Raju v. Chandrayya (supra), Navaraja v.
Kaliappa Gounder (supra), Arunachalathammal v. Sudalaimuthu Pillai (supra) and
Andalammal v. B. Kanniah (supra) as also the judgment of the learned Single
Judge of Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla
Venkatanarayana (supra) lay down correct law. In the first of these cases, the
Division Bench of Madras High Court rightly observed that when there is a
special rule in the Act for valuing the property for the purpose of court fee,
that method of valuation must be adopted in preference to any other method and,
as mentioned above, Section 40 of the Act certainly contains a special rule for
valuing the property for the purpose of court fee and we do not see any reason
why the expression `value of the property' used in Section 40(1) should be
substituted with the expression `market value of the property'.
31. The
judgment of the learned Single Judge of Madras High Court in Balireddi v.
Khatipulal Sab (supra), which was approved by the Full Bench of that Court in
Kutumba Sastri v. Sundaramma (supra) turned primarily on the interpretation of
Section 7(iv-A) of the Court Fee Act as 3 amended by Madras Act which refers to
the value of the property simpliciter and the Court interpreted the same as
market value. Neither the learned Single Judge nor the Full Bench were called
upon to interpret a provision like Section 40 of the Act. Therefore, the ratio
of those judgments cannot be relied upon for the purpose of interpreting
Section 40 of the Act. In Arunachalathammal v. Sudalaimuthu Pillai (supra), the
learned Single Judge rightly distinguished the judgment of the Full Bench by
making a pointed reference to the language employed in Section 40(1) of the
Madras Act No.XIV of 1955, which is identical to Section 40 of the Act. In
Sengoda Nadar v. Doraiswami Gounder and others (supra) and S. Krishna Nair and
another v. N. Rugmoni Amma (supra), the other learned Single Judges did not
correctly appreciate the ratio of the judgment of the coordinate Bench in
Arunachalathammal v. Sudalaimuthu Pillai (supra) and distinguished the same
without assigning cogent reasons. We may also observe that if the learned
Single Judges felt that the view expressed by the co-ordinate Bench was not
correct, they ought to have referred the matter to the larger Bench. The
judgments of the Division Benches of Kerala High Court in Krishnan Damodaran v.
Padmanabhan Parvathy (supra), P.K. Vasudeva Rao v. Hari Menon (supra) and
Pachayammal v. Dwaraswamy Pillai (supra) and of the learned Single Judges in
Appikunju Meerasayu v. Meeran Pillai (supra) and Uma Antherjanam v. Govindaru
Namboodiripad and others (supra) also do 3 not lay down correct law because the
High Court did not appreciate that the legislature has designedly used
different language in Section 40 of the Act and the term `market value' has not
been used therein. The same is true of the judgments of the learned Single
Judges of Mysore and Rajasthan High Courts noticed hereinabove.
32. In
the result, the appeal is allowed. The impugned order of the learned Single
Judge of Kerala High Court as also the order passed by the trial Court
directing the appellant to pay court fee on the market value of the property,
in respect of which the sale deed was executed by respondent No.1 in favour of
respondent No.2, are set aside. The trial Court shall now proceed with the case
and decide the same in accordance with law. The parties are left to bear their
own costs.
.................................J. [G.S. Singhvi]
.................................J. [Asok Kumar Ganguly]
New Delhi
May 07, 2010.
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