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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10975 OF 2018
Sanjay Ramchandra Shendkar & Ors .. Petitioners
…
Mr. Sarthak S. Diwan for the petitioner in WP No. 10975/2018.
Mr.Dormaan Jamshid Dalal for the respondent no.18 in WP
10975/2018.
PRONOUNCED: 17th MARCH, 2022
JUDGMENT
1 Heard learned Advocate Shri Sarthak Diwan for the petitioner and Advocate Dormaan Dalal for the respondent/ defendant no.18.
2 A short point that arise for consideration is whether the Suit filed by the plaintiffs, seeking declaration and perpetual injunction ought to have attracted the Court fee in terms of Section 6(iv)(ha) or the Court fee was to be charged under Section 6(iv)(j) of the Maharashtra Court Fees Act. The aforesaid question arose in the backdrop of the fact that the Suit property is an agricultural property described in paragraph no.1 of the plaint and it was pleaded to be the ancestral property of one Shri Savla, having two sons – Ramchandra and Baban and four daughters. It was pleaded that the suit property was never partitioned in the joint family of Savla and it was cultivated in that capacity. After the demise of Savla, his widow Chandrabhaga was recorded as the owner of the suit property. The contention of the plaintiffs is to the effect that defendant no.18 prepared a fraudulent unregistered document titled as ‘Power of Attorney’ and the plaintiffs dispute execution of any such document, by pleading that they have never been to Pune for the purpose of executing the said document, but with an ill-intention to grab the property, the document was forged and therefore, it is pleaded that the Power of Attorney is not binding on the plaintiffs and the said document is void, illegal. The plaintiffs further plead that on the basis of the aforesaid Power of Attorney, the defendant no.18 started disposing off the suit property as it was required for Rayata Dam Project and the same was declared as a ceiling area in 1972, and there was a prohibition on sale of the property as per The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and the permission of Revenue Authority was required to dispose off the property. Despite prohibition in existence, the defendant no.18 is alleged to have sold the property vide various sale deeds in favour of the defendants right from defendant no.1 to defendant no.17 and defendant nos.19 to 76, and all the sale deeds are executed on the basis of the forged Power of Attorney and third party rights have been created in favour of other defendants. It is in the backdrop of the aforesaid facts, the plaintiff filed a Suit, praying for a declaration that all the sale deeds executed in pursuance of the Power of Attorney by defendant no.18 are not binding on the plaintiffs and the sale deeds executed in favour of defendant no.1 to defendant no.17 and further in favour of defendant no.19 to defendant no.76 are null and void.
3 Summons came to be issued in RCS No.123/2013 filed by plaintiffs, pursuant to which, the defendant no.18 marked his appearance and filed written statement. He also filed an application (Exhibit 140) under Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of plaint alleging that the plaintiffs have undervalued the Suit and not paid proper Court fee as per Section 5 of the Act. It was also pleaded that the Suit was not maintainable since it was filed by holder of Power of Attorney and also on the ground, that it is not filed within limitation and there is no cause of action.
4 On 30/11/2017, the Civil Judge, Jr. Division, Saswad, partly allowed the application filed by defendant no.18 and declared that the Suit for perpetual injunction is properly valued and the Court fee is accordingly paid, but concluded that, since plaintiffs are challenging sale deeds more particularly described in the plaint and since the Suit embraces more distinct reliefs, the plaint was to be charged on the aggregate of the amount of fees separately and it was held that the Suit is not properly valued. As far as the other objections are concerned, that being not the subject matter of the Writ Petition, I need not get deep into the said controversy, but suffice it so say that the following portion of the order is the bone of contention between the parties. “(ii) The plaintiffs are hereby directed to value the suit for declaration for seeking immunity in respect of sale deeds, more particularly described in plaint para no.5, as per section 6(iv)(ha) of the Maharashtra Court Fees Act, 1959 and to pay the court fees on or before next date”.
5 In order to appreciate the contention of the respective parties, the petitioners/plaintiffs submitted that the Court fee payable shall be under Section 6(4)(j) and the respondent/ defendant no.18 argue that the Court fee is to be charged as per Section 6(iv)(ha). It is necessary to reproduce both the aforesaid entries pertaining to computation of fees payable. (ha) for avoidance of sale, contract for sale, etc. In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any movable or immovable property is void of ad valorem fee leviable on the value of the property; (j) for other declaration: In suits where declaration is sought, with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee payable, as if the amount or value or the subject matter as one thousand rupees. In all suits under clauses (a) to (i) the plaintiff shall state the amount at which he values the relief sought, with the reasons for the valuation: In order to appreciate and determine what relief is sought in the plaint, it is necessary to read the plaint in it’s entirety as mere reading of prayer clause may not be determinative of the claim of the plaintiff. It is, therefore, necessary to look at the plaint to discover what is the true nature of the Suit.
6 In the plaint, the plaintiff nos.[1] to 11 and the Power of Attorney holder of 1, 6 and 7 specifically disclose that their Suit is for declaration and perpetual injunction. After setting out the description of the suit property, which is an agricultural property as described in para-1 of the plaint, the genealogy is set out in paragraph no.2, where it is pleaded, that the suit property is the ancestral property of Savla who had two sons, Ramchandra and Baban and four daughters, and the family is described to be a Hindu Joint family and it is pleaded that there is no partition of the family property by metes and bounds and the property jointly held by all the members of the family. Defendant no.18 is alleged to be the person who had hooking for lands in the nearby vicinity and he was assisted by some persons in his venture. It is alleged that defendant no.18 procured a Power of Attorney without the knowledge of the plaintiffs and got the Power of Attorney notarized in Pune, and it is alleged that he had no right to execute the said Power of Attorney and it is apparently fraudulent since the executants never visited Pune and therefore, their signatures and thumb impressions were forged. The said Power of Attorney was registered and though it bears the signatures and the photographs, it is pleaded that they were neither present at the time of it's execution nor have signed the Power of Attorney. With these pleadings, it is pleaded that the said Power of Attorney is illegal, and since it do not contain signatures of the plaintiffs and since it was executed behind their back, the same is liable to be declared as invalid, null and void.
7 In the plaint, it is also pleaded that based on the forged Power of Attorney, the defendant no.18 executed various sale deeds in favour of the other defendants on various dates though they were never delivered the possession and it is pleaded that the possession still remain with the plaintiffs. The sale deeds executed in favour of other defendants, was sought to be declared as illegal. The plaint contain the details of the various sale deeds and it is alleged that all the defendant nos.[1] to 76 have conspired together with an unlawful intention to deprive the plaintiffs of their property and behind their back, got the sale deeds executed. It is therefore, pleaded that the sale deeds are void ab initio and not binding upon the plaintiffs. Pertinent to note that the plaint which is in vernacular (Marathi) repeatedly uses the word ‘रद बादल’ which is as per ‘Chaos Dictionary’ means ‘null and void’. The plaint also uses the phraseology ‘ ’ मुलतः रदबादल meaning ‘void ab initio’. Another phrase which is implied in the plaint is ‘ ’ बेकायदेशीर, and as per the Chaos Dictionary, it indicate illegal, illicit and illegitimate.
8 In Paragraph no.7 of the plaint, it is pleaded that the Suit is filed for declaration and permanent injunction and therefore, the stamp duty for Rs.300/- is paid. If the prayer clause in the plaint is perused, by virtue of prayer clause (a), the declaration is sought for the Power of Attorney not binding upon the plaintiff or their shares, since it is not executed by them and it shall be declared that the Power of Attorney is false and obtained by playing fraud and therefore, it is prayed to be declared as null and void (रद बादल). The prayer (b) similarly seek a declaration that the sale deeds executed in favour of defendant nos.[1] to 17 and 19 to 76 is completely unauthorized (अनधधक ृ त) and illegal since inception (मुलतः बेकायदेशीर) and therefore, not binding on the plaintiffs. Prayer clause (c) of the plaint seek restraint order against defendant nos.[1] to 76 to the effect that they shall not enter into any transaction of sale, mortgage, gift, lease in respect of the suit property. The argument of the respective counsel will therefore, have to be appreciated in the wake of the aforesaid pleadings and the reliefs sought.
9 In the present Writ Petition, on 6/10/2018, the contention of the petitioners was recorded to the effect that the claim in the Suit will have to be valued u/s.6(iv)(j) and not u/s.6(iv)(ha) of the Maharashtra Courts Fee Act, 1959. The learned counsel for the petitioner seek to derive benefit of the order passed by the learned Single Judge (Justice R.D. Dhanuka) in case of Anant Chavan vs. Manoj Kamble & ors, (Writ Petition No.1327/2019 decided on 18/9/2018, where relying upon the decision of the Apex Court in case of Suhrid Singh @ Sardool Singh Vs Randhir Singh & Ors, AIR 2010 SC 2870, it was held that if the petitioners are not party to the sale deed and if there is a prayer for cancellation of the sale deed, the plaintiff will have to pay the Court fee under 6(iv)(j) and not under Section 6(iv)(ha) of the Bombay Court Fees Act. The aforesaid decision is based upon the decision of the Apex Court in case of Suhrid Singh (supra).
10 The bone of contention between the respective counsel is whether the present case is covered by the decision in Suhrid Singh (supra), since the learned counsel Mr.Sarthak Diwan would heavily fall back on the said decision, whereas the learned counsel for the respondent Mr.Dalal, would submit that the ratio flowing from Suhrid Singh is peculiar to the provisions contained in the Courts Fee Act, 1870 as amended in Punjab, whereas the State of Maharashtra has enacted the Maharashtra Court fees Act, 1959, which contemplate a different scheme than the Courts Fee Act and the learned counsel for the respondent has placed reliance upon various decisions of this Court, which has distinguished the ratio flowing from Suhrid Singh.
11 It is therefore, apt to refer to the decision of the Apex Court in Suhrid Singh. The facts reveal that the plaint sought the following reliefs:-
(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;
(ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third defendant, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est "qua the co-parcenary";
(iii) for a declaration that the sale deeds dated 20.4.2001,
24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S.Rajender Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "co-parcenary", as they were not for legal necessity or for benefit of the family; and
(iv) for consequential injunctions restraining defendants 1 to
4 from alienating the suit properties. The question that arose for consideration, was about the Court fee payable in regard to the prayer for declaration that the sale deeds were void and not binding, and for the consequential relief of joint possession and injunction.
12 The Apex Court, therefore, considered scheme of enactment governing the Court fees, if paid in the State of Punjab by referring to Section 7(4)(c), the question came to be answered. It is appropriate to reproduce the relevant provision:-
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:
(iv) in suits -
(c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
13 In the wake of the aforesaid provision and the relief sought in the plaint, the Apex Court ruled as under:-
18 Since it is a settled position of law that in order to appreciate the nature of a Suit, pleadings therein will have to be read as a whole and not into bits and pieces and depending upon what relief is sought by the plaintiff, he shall be directed to pay the Court fee. The Maharashtra Courts Fee Act, determine the fees to be paid in suits filed, praying for distinct reliefs, since the nature and/or the frame of the Suit necessiates consideration of judicial issues, question of court fees and also the remedies sought for.
19 Section 6 set out the amount of fees payable under the Act in the Suit and it's computation and a Suit seeking a declaration that any sale or contract for sale or termination of contract for sale of any movable or immovable property being void, is set out in section 6(iv)(ha), whereas a Suit where the declaration is sought with or without injunction, or other consequential reliefs, and if the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided under the Act, such Suit is governed by clause (j). When the plaint of the present Suit is perused, the plaintiffs though claim that they are not executants of the Power of Attorney nor they are parties to the sale deeds executed by defendant no.18 in favour of defendant nos.[1] to 17 and 19 to 72 on the basis of the fraudulent Power of Attorney, the relief sought is a declaration that the said documents is void, illegal and not binding on the plaintiffs. The nature of relief sought is therefore, of avoidance of the sale, for which a specific provision is available under Section 6(iv)(ha) in the Maharashtra Court Fees Act, and where a Suit seek a declaration that sale of any movable or immovable property is void and a party want to avoid the same, clause (ha) is attracted. For other declarations, the Suit should be governed by clause (j). A declaration to the effect that the sale deed is void and it is not binding upon the plaintiff, thus must squarely fall within the purport of clause (ha). Merely because the plaintiffs are not party, either to the Power of Attorney since they claim that it is forged one, nor are they parties to the sale deeds, the situation would not turn around, since ultimately they intend to avoid the sale deed executed by defendant no.18 in favour of the other defendants and the declaration is sought to the effect that the sale deeds are not binding upon the plaintiffs, since they are void. The contingency being specifically stipulated by clause (ha) of Section 6(iv), the impugned order which levy the Court fee on the basis of the said entry do not warrant any interference.
20 Reliance placed by Advocate Diwan on the decision of the learned Single Judge in case of Ravindra Narayan Rajashri (supra) is not applicable in the present case, since the facts would reveal that the original suit was filed for specific performance of the agreement and the prayer was made for execution of sale deed and handing over of peaceful possession of the Suit property. This suit was valued u/s.6(iv)(j) of the Bombay Court Fees Act and rejection of the plaint was sought by the defendant on the ground that it was not properly stamped. The decision in case of Abdul Gaffar (supra) as well as Prism Reality & Anr Vs. Mr.Govind Yashwant Khalade & Ors, (supra) was cited along with several other decisions of the Bombay High Court and the learned Single Judge (Justice Mridula Bhatkar) applied the law laid down, through the authoritative pronouncements; to the facts of the case, which involve a Suit for specific performance and not for avoidance and cancellation of contract and the plaintiff was not a non-executant to the sale deed which was executed, lis pendens. The learned Judge, therefore, invoked the ratio laid down by the Apex Court in case of Surhid Singh (supra) and applied the same. She brushed aside the decision in case of Prism Reality by recording that the facts of the case were distinct. Another decision in case of Narendra Walle (supra) which place reliance on Surhid Singh, record that the plaintiff is non-executant of the sale deed nor a deed of possession is prayed for, and therefore, the Court fee is not payable as per Section 6(iv) (ha) of the Maharashtra Court Fees Act.
21 On appreciating the ratio flowing from all the judgments cited before me at the bar, I do not agree with Mr.Diwan that the aforesaid two judgments determine the question involved since in Prism Reality (supra), the learned Judge has clearly enunciated the position applicable in State of Maharashtra, where the Maharashtra Court Fee Act specifically include a provision for payment of Court fee in a Suit seeking avoidance of sale, contract for sale etc, by virtue of Section 6(iv) (ha). The residuary clause is Section 6(iv)(j), where declaration is sought, with or without injunction or with or without consequential relief and the subject matter is not susceptible to monetary evaluation, for such declaration which is not otherwise provided by the Act. This is not the case before me and in the peculiar facts where the plaintiff has specifically prayed for injunction of the sale deed executed on the basis of the alleged fraudulent Power of Attorney, which is prayed to be not binding upon him and where he specifically seek avoidance of those sale deeds as being void, his case clearly falls within 6(iv)(ha). The impugned judgment which direct the plaintiff/petitioner to pay Court fee being governed by the said clause, therefore do not suffer from any legal infirmity and deserve to be upheld and the Writ Petition is liable to be dismissed and is accordingly dismissed. (SMT.BHARATI DANGRE, J)