SUGUNA Vs. SUNIL KUMAR HOLLA

JUDGEMENT

(1.) MATERIAL facts of this case are that, petitioners are the plaintiffs and respondents are the defendants in O.S. No. 12/2008 pending in the Court of Senior Civil Judge at Kundapura. Suit was filed on 16 -9 -2008 to pass a decree for partition and allotment of separate possession of the plaintiffs' 3/5th share in the plaint schedule properties by metes and bounds and for awarding of the future mesne profits. Defendant No. 1 filed written statement on 24 -11 -2008 denying the plaint averments and seeking dismissal of the suit. On 6 -1 -2009, plaintiffs filed I.A. 2 for grant of permission to amend the plaint. The application having been dismissed on 17 -12 - 2009, writ petition No. 4823/2010 filed there against was allowed on 22 -4 -2010 and the plaintiffs were permitted to amend the plaint on certain terms. By incorporating the amendment, the plaintiffs have sought for passing a decree for cancellation of a sale deed dated 27 -1 -1997 in respect of the plaint 'A' schedule properties and to declare a sale - deed dated 10 -11 -2008 executed by the 1st defendant in favour of defendant Nos. 2 and 3 in respect of the portions of plaint 'A' schedule properties, as null and void and not binding on their share. After incorporating the amendment a fresh valuation slip was filed.

(2.) SRI R. V. Jayaprakash, learned advocate for the petitioners, contended that the main relief sought for by the plaintiffs is for cancellation of registered sale -deed dated 27 - 1 -1997 said to have been executed by the plaintiffs and the 2nd defendant and their mother in favour of the 1st defendant in respect of plaint 'A' schedule property as vitiated by fraud, misrepresentation and mistake and to declare the said document as null and void and not binding on the share of the plaintiffs and to pass a decree for partition and separate possession entitling the plaintiffs to

(3.) SINCE the matter pertains to payment of court -fee, by the order dated 13 -4 -2012, the petitioners were directed to implead the State of Karnataka represented by its Revenue Secretary and learned Additional Advocate General was directed to accept notice and appear in the matter. Sri Sajjan Poovaiah, learned Additional Advocate General appeared and submitted that S. 38 of the Act is pari materia with S. 40 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'Kerala Act') and neither S. 38 of the Act nor Sec. 40 of the Kerala Act refer to 'market value'. A written submission dated 21 - 3 -2013 was filed and he submitted that wherever the legislature has intended that market value be applied, it has expressly stated so. He submitted that since Section 38 of the Act relating to suits for cancellation of decree etc, does not provide for payment of court - fees on market value, inasmuch as it provides for value of the property for which the document was executed, the value denoted in the document should govern the process of calculation of court -fee.