BADRI PRASAD Vs. GYAN PRAKASH

JUDGEMENT

(1.) There are two appeals arising out of the proceedings of Original Suit No.323 of 2006 (Badri Prasad and another Vs. Gyan Prakash and others). FAFO No.1282 of 2010, filed under section 6 A of the Court Fees Act, 1870 read with section 104 C.P.C., is directed against the order dated 17th April, 2010 passed by Additional District Judge (Court No.2), Allahabad, whereby issue no.1 in respect of valuation and payment of court fees has been decided against the appellants/plaintiffs (hereinafter referred as appellants). The other i.e. First Appeal No.279 of 2010 (Badri Prasad Vs. Gyan Prakash and others), filed under section 96 of the Civil Procedure Code, is directed against the judgment and decree dated 31stMay,2010 passed by the Additional District Judge (Court No.2), Allahabad. Since both the matters are inter-connected, these appeals are decided by a common judgment.

(2.) Before noticing the arguments of the parties, we would like to have a glimpse of the facts, relevant for the present purpose, as gleaned from the pleadings of the parties.

(3.) Briefly stated the appellants-plaintiffs, filed a suit against respondent nos. 1 to 3 with prayer to declare the registered gift deed dated 26th September 2005, executed in respect of property in dispute, details whereof have been given at the foot of the plaint as null and void. The appellants and respondent nos. 1 and 3 are real brothers. Respondent No.2 is their nephew (Bhanja). Property in dispute was acquired by late Hazari Lal, father of appellants and respondent nos. 1 and 3. In his life time late Hazari Lal had constructed a residential house on the land purchased by him. In respect of the land, late Hazari Lal executed a will dated 11th May, 1989 in favour of his all four sons. After his death, all the four brothers became owner in possession of their share in the suit property. In the will it was provided that respondent No.1 would not have a right of alienation. Respondent No.1 in contravention of that condition had executed a registered gift deed dated 26th September, 2005 in favour of respondent no.2. On this account, registered gift deed was void and liable to be declared so. The suit was valued on twenty times of the house tax payable by the owners along with thirty times of the land revenue, payable on the rest of the open land, thus, the suit was valued Rs.1,08,083/-. Respondent nos. 1 and 2 filed a common written statement whereby relationship of the parties was admitted. Execution of gift deed was also admitted. Other averments of the plaint were denied. In the additional written statement filed subsequent to the amendment in the plaint, in para 6 specific ground was raised that suit was under valued and paid court fees was in-sufficient. Court fees should have been paid ad valorem.