SATHYANARAYAN Vs. SURYOJI RAO

JUDGEMENT

(1.) THE plaintiffs have preferred these writ petitions challenging the order passed by the Trial Court holding the Court fee paid on the plaint is insufficient and directing the plaintiffs to value the suit under Section 38 of the Court Fee and Suit Valuation Act and to pay the deficit Court fee. Further, it also passed an order holding that the market value of the property as on the date of the suit is Rs. 25,00,000/ -. Therefore, the Court fee has to be paid on the said amount is a sum of Rs. 1,29,625/ -. The suit is filed by the three plaintiffs. The first plaintiff has executed two gift deeds in favour of the defendants. Plaintiffs 2 and 3 are her children. Their case was that the gift deed executed by the first plaintiff is voidable as it was obtained by fraud. Plaintiffs 2 and 3 are seeking the relief of partition and separate possession. They paid a sum of Rs. 750/ - as Court fee on the memorandum of plaint belonging to the suit under Section 35(2) read with Section 24(d) of Karnataka Court Fee and Suit Valuation Act.

(2.) THE defendants contend that, the suit is not properly valued and the Court fee paid is not sufficient. Issue No. 7 was framed in this regard. The Trial Court after hearing both the parties held that, the first plaintiff executed the gift deed and when she wanted to get over the said document, it is only by a decree of cancellation and therefore, the suit is to be valued under Section 38 of the Act. The partition relief is auxiliary to the same. Even if the first plaintiff is dead, defendants 1 and 2 being the LRs, they have to pay the requisite Court fee before prosecuting the suit and therefore, passed the impugned order. Aggrieved by the same, plaintiffs 2 and 3 are before this Court.

(3.) THE Apex Court in the case of Suhrid Singh @ Sardool Singh Vs Randhir Singh and Others reported in : AIR 2010 SC 2807, had an occasion to consider this aspect and it was held "if the prayer is for declaration that the deeds do not bind the "co -parcenary" and for joint possession, the plaintiff in the suit was not the executant of the sale deeds, the court fee was computable as if it is a suit for partition. It is only to the extent to get over the said document, then it amounts to suit for cancellation of the instrument.