IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY,THE23D DAY OF MAY20142ND JYAISHTA, 1936 WP(C).No. 33129 of 2009 (O) AGAINST THE JUDGMENT
IN OS952006 of III ADDL.SUB COURT, KOZHIKODE DATED1610-2009 PETITIONER: ------------------- P. NARAYANAN NAIR, S/O.KANNAN NAIR, RESIDING AT "SREE HARI", KASABAAMSOM, KARYAKUNNU DESOM, KOZHIKODE DISTRICT. BY ADVS. SRI.CIBI THOMAS SRI.K.PRAVEEN KUMAR RESPONDENTS: ----------------------- 1. DR.LOKESHAN NAIR,S/O.NARAYANAN NAIR, WORKING AT BONE & JOINT HOSPITAL, ERANHIPALAM KACHERI AMSOM DESOM, KOZHIKODE DISTRICT.
2. SMT.KANTHIMATHI,D/O.NARAYANAN NAIR, WORKING AT CANARA BANK, HOSKOTE BRANCH, BANGALORE. R2 BY ADV. SRI.V.G.ARUN R2 BY ADV. SRI.T.R.HARIKUMAR R1 BY ADV. SMT.T.J.SEEMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON151.2014, THE COURT ON2305-2014, DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.95 OF2006OF SUB JUDGE III, KOZHIKODE. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT. EXT.P3 TRUE COPY OF THE REJOINDER FILED BY THE PLAINTIFF. EXT.P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT. EXT.P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXT.P6 TRUE COPY OF THE JUDGMENT
IN O.S.NO.95/2006 OF SUBORDINATE JUDGE, KOZHIKODE. EXT.P7 TRUE COPY OF THE JUDGMENT
IN W.P.(C) NO.16175/2009 OF THIS COURT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J.
------------------------------------------------------ W.P.(C) NO. 33129 OF2009(O) ------------------------------------------------------ Dated this the 23rd day of May, 2014 JUDGMENT
The question involved in this Writ Petition is whether the plaintiff has to pay court fee after determining the market value under Section 7(2) of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as 'the Court Fees Act') or whether the market value should be computed in accordance with sub-section (3A) of Section 7 of the Court Fees Act.
2. The petitioner filed O.S.No.95 of 2006 on the file of the Court of the Subordinate Judge, Kozhikode against the respondents for a decree "declaring that on the strength of documents 1655/1970, 2248/1970 and 892/1972 of Chevayur S.R.O., late Smt.Soudamini Amma had not acquired any right, title and possession over the plaint schedule property, transfers as per the aforesaid documents were only Benami transaction and to the effect that plaintiff is the actual absolute owner and is in lawful possession of the same". W.P.(C)NO.33129 OF2009::
2. :: There is also a prayer for permanent prohibitory injunction. The market value of the plaint schedule properties was estimated at `2,10,000/- and for the purpose of court fee, one-half of the market value was assessed at `1,05,000/-. The court fee for the prayer for declaration was shown as payable under Section 25(b) of the Court Fees Act. The total court fee payable was shown in the plaint as `9,000/-. The jurisdictional value was shown as `2,11,000/- for the reliefs of declaration and injunction.
3. Three items of immovable properties are scheduled to the plaint. Item No.1 is admittedly a "nilam" having an extent of 7 cents. Item No.2 is described as a portion of "Panoli Kizhakkuveedu Parabu", having an extent of 54 cents. Item No.3 of the plaint schedule is also having the same description as shown in item No.2. The extent of item No.3 is 9.25 cents.
4. The plaintiff is the father of the defendants. According to the plaintiff, Soudamini Amma died on 13.6.1979, while, according to the second defendant, she died on 13.6.1980. The plaint schedule properties were purchased as per registered documents of the year W.P.(C)NO.33129 OF2009::
3. ::
1970. and 1972. According to the plaintiff, he purchased the property with his funds in the name of his wife Soudamini Amma. The averments in the plaint would disclose that there is a residential house in the plaint schedule property and it was originally let out to one Basheer and thereafter, let out to different persons from time to time. It is not clear from the averments in the plaint or in the schedule to the plaint as to whether the house is situated in item No.2 or item No.3. What is the rent fetched for the house is also not stated.
5. In the written statement filed by the second defendant, she contended that the properties were acquired by Soudamini Amma with her own funds and the funds provided by her family members. The second defendant contended that the plaintiff was having illicit relationship with another woman and Soudamini Amma was ill- treated by the plaintiff. The second defendant also expressed her suspicion in the written statement that Soudamini Amma was murdered. In paragraph 13 of the written statement, the second defendant averred as follows: W.P.(C)NO.33129 OF2009::
4. :: "The plaint schedule property is valuable and the same is situated in a very important locality. The plaintiff may be directed to pay court fee on the market value fixed by the District Collector." 6. A rejoinder was filed by the plaintiff, in which, he stated that his daughter, the second defendant, was responsible for the suicide of Soudamini Amma. It is also stated that after the death of Soudamini Amma, the plaintiff was compelled to contract a second marriage.
7. The second defendant filed an application to decide the issue of court fee as a preliminary issue. Additional issue No.6 framed in the suit is whether the suit is properly valued for the purpose of court fee.
8. The court below tried additional issue No.6 and delivered a "Judgment" dated 16.10.2009 holding that the valuation made in the plaint for the purpose of court fee is not correct. The court below held that item Nos.2 and 3 of the plaint schedule are "residential W.P.(C)NO.33129 OF2009::
5. :: garden" and therefore, valuation should be made in respect of those items under sub-section (3A) of Section 7 of the Act. Relying on the oral evidence of the Sub Registrar, Chevayur, who was examined in the case, and on the basis of Exts.C1 to C4 sale deeds executed in 2006, the court below held that the market value of the plaint schedule property would be `25,000/- per cent of land. It was also held by the court below that no fair value was fixed under Section 28A of the Kerala Stamp Act in respect of the property in question and therefore, the market value of the property on the date of filing of the suit should be ascertained with reference to the materials produced in the case. The court below also held that the value shown in Exts.C1 to C4 (`25,000/- to `30,000/- per cent) was really as a result of undervaluation and the value of the property would be much more. The respective extent of property covered in Exts.C1 to C4 is less than five cents.
9. Section 25(b) of the Court Fees Act provides that in a suit for declaratory decree or order, whether with or without consequential relief, not falling under Section 26, where the prayer is for a declaration and for consequential injunction and the relief W.P.(C)NO.33129 OF2009::
6. :: sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on `1,000/-, whichever is higher. The market value of the property is to be determined as provided under Section 7 of the Court Fees Act. Section 7 of the Court Fees Act reads as follows: "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. W.P.(C)NO.33129 OF2009::
7. :: (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." 10. The suit is one falling under Section 25(b) of the Court Fees Act. If so, the market value is to be determined under sub- section (2) of Section 7 of the Court Fees Act, provided it is an agricultural land. Item 1 of the plaint schedule is admittedly an agricultural land. Items 2 and 3 are parambas. The nature of the improvements in the property are not correctly shown either in the plaint or in the written statement. The learned counsel for the petitioner submitted that items 2 and 3 contain coconut trees and W.P.(C)NO.33129 OF2009::
8. :: other fruit bearing trees and a house is also situated in one of those items. According to the counsel, items 2 and 3 are also agricultural lands and therefore, the market value is to be determined not under sub-section (3A), but under sub-section (2) of Section 7 of the Court Fees Act.
11. The term 'agricultural land' is not defined in the Court Fees Act. If it is agricultural land, market value 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, as provided in sub-section (2) of Section 7 of the Court Fees Act. Sub-section (3) of Section 7 of the Court Fees Act provides for determining the market value of a building. Section 7 does not give any indication as to whether market value is to be determined under sub-section (3) of Section 7 of the Court Fees Act for an agricultural land in which a residential building is situated. On a combined reading of sub-sections (2) and (3) of Section 7 of the Court Fees Act, the only reasonable construction that could be placed is that in the case of a residential property which is also an agricultural land, determination of market value is to be made under W.P.(C)NO.33129 OF2009::
9. :: sub-section (2). The expression "gross profits of such land" would include the rental value of the residential building also. Sub-section (3) of Section 7 of the Court Fees Act, to my mind, would apply only where the property consists of the building and not where a building is situated in an agricultural land. The predominant purpose for which the land is used is material in determining whether sub-section (2) or sub-section (3) would apply. If a commercial building is situated in a property and the predominant purpose is to generate income from the building and not from the land, it would be a case where sub-section (3) of Section 7 of the Court Fees Act would apply. On the other hand, when the predominant purpose is agricultural operation or agricultural operation-cum-residence, I am of the view that sub-section (2) of Section 7 of the Court Fees Act would apply. Sub-section (3A) of Section 7 of the Court Fees Act would apply only when sub-sections (2) and (3) of Section 7 would not apply.
12. The next question to be considered is whether a land which is not used for paddy cultivation would also be an agricultural land. The court below held that since item 1 is a "nilam", it is an W.P.(C)NO.33129 OF2009::
10. :: agricultural land, while items 2 and 3 being dry lands, they are not agricultural lands. As stated earlier, the term "agricultural land" is not defined in the Court Fees Act. The Kerala Stamp Act, 1959 also does not define "agricultural land" or "agricultural purpose". While defining "lease" under Section 2(l), the Kerala Stamp Act includes in the said definition an agreement or other undertaking in writing not being a counterpart of a lease, to cultivate, occupy or pay or deliver rent for immovable property. Agreement executed by the renters of abkari and opium farms is also included in the definition of the term "lease" under the Kerala Stamp Act.
13. The Oxford Dictionary defines "agriculture" as "cultivation of the soil". In Black's Law Dictionary, the term "agriculture" is defined as follows: "Agriculture. The science or art of cultivating the soil, harvesting crops, and raising livestock and also as the science or art of the production of plants and animals useful to man and in varying degrees the preparation of such products for man's use and their disposal." W.P.(C)NO.33129 OF2009::
11. :: The term "agricultural" is defined as: "Pertaining to, or dealing with, agriculture; also, characterized by or engaged in farming as the leading pursuit." The term "agricultural product" is defined as follows: "Agricultural product. -- Things which have a situs of their production upon the farm and which are brought into condition for uses of society by labor of those engaged in agricultural pursuits as contradistinguished from manufacturing or other industrial pursuits. That which is the direct result of husbandry and the cultivation of the soil. The product in its natural unmanufactured condition." 14. In Advanced Law Lexicon by P.Ramanatha Aiyar, "agricultural land" is shown to have the following meaning: "Field or soil pertaining to farming or capable for the purpose of agriculture or tilling." The term "agriculture" cannot be defined by the nature of products cultivated, but should be defined rather by the W.P.(C)NO.33129 OF2009::
12. :: circumstances in which the cultivation is carried on. The mere fact that an industry has some connection with or is in some way dependent on land is not sufficient to bring it within the scope of the term. The term 'agricultural' should be construed in its primary sense as meaning the art or science of cultivating the ground. The expression "land used for agricultural purposes" cannot extend to forests of spontaneous growth, where nothing is done to prepare the soil for trees to be planted therein, and where the growth of the trees is not fostered by tillage. Income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is not agricultural income. The expression 'agricultural lands' must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. Paramananda Das v. Shankar Rath, AIR1951 Ori.
11. A piece of agricultural land including sites of buildings thereon occupied by a land owner for practical purposes is the "agriculture land". I.Hussain v. Abbasi, NLR1979Revenue 96 (Pak), (Legal Terms & Phrases - It YAS KHAN). "Agricultural land" is a species of land. It must be land which could be said to be either actually used or ordinarily used or meant to be used for agricultural W.P.(C)NO.33129 OF2009::
13. :: purposes. In other words, "agricultural land" must have a connection with an agricultural user or purpose. It is on the nature of user that the meaning of "agricultural purpose" and "agriculture" become relevant. Commissioner of Wealth Tax, Andhra Pradesh v. Officer- in-Charge (Court of Wards), Paigah, AIR1977SC113 116; (1976) 3 SCC864 (Wealth Tax Act (27 of 1957), S.2(e)(i). "Agricultural property" means, agricultural land, pasture, and woodland; and also includes such cottages, farm buildings, farm-houses and mansion- houses, (together with the lands occupied therewith) as are of a character appropriate to the property. "Agricultural purpose' would include all those purposes which are associated with agriculture and it cannot be confined merely to the production of grain and food products for human beings and beast and must be understood as comprising all the products of the land which have some utility either for consumption or for trade and commerce and would also include forest products such as timber, sal and plyasal trees casuarina plantations, tendu leaves, horranuts etc. I.T.Commissioner v. Benoy Kumar, AIR1957SC768" 15. Clause (c) of the proviso to Section 60 of the Code of W.P.(C)NO.33129 OF2009::
14. :: Civil Procedure exempts houses and other buildings of an agriculturist from attachment and sale. Explanation V defines 'agriculturist' as a person who cultivates land personally and who depends for his livelihood mainly on the income from the agricultural land.
16. Section 13 of the Kerala Land Reforms Act, 1963 provides for fixity of tenure. The expression "tenant" is defined under Section 2(57), which includes a kanam-kuzhikanamdar and a kuzhikanamdar. Kanam-kuzhikanam and kuzhikanam are defined respectively in Sections 2(23) and 2(28) of the Kerala Land Reforms Act. They are in respect of garden lands. The expression "net income" is defined under Section 2(37) of the Kerala Land Reforms Act as follows: ""net income" means income derived from any property after deducting therefrom the cultivation expenses or charges for maintaining fruit trees, timber trees or other useful trees and plants, and taxes and cesses due to the Government or any local authority;" W.P.(C)NO.33129 OF2009::
15. :: Section 2(11) of the Kerala Land Reforms Act defines "dry land" as a land which is not a nilam, garden, palliyal land or plantation. Garden is defined under Section 2(15) as land used principally for growing coconut trees, arecanut trees or pepper vines, or any two or more of the same. "Gross produce" is defined under Section 2(16) of the Kerala Land Reforms Act as follows: "gross produce" in the case of a nilam, means the normal produce of that nilam less the cost of harvesting and, in the case of a garden or dry land, means the normal produce of that garden or dry lands;" The various provisions in the Kerala Land Reforms Act would indicate that a person who actually possesses, cultivates and enjoys the land would get benefits under the Act, provided the necessary conditions are satisfied. The beneficiaries include persons who cultivate garden lands as well.
17. Agriculture is an activity in which the person involved therein cultivates the land. Cultivation need not necessarily be paddy cultivation. Growing coconut trees, pepper vines, arecanut W.P.(C)NO.33129 OF2009::
16. :: trees etc. also would be cultivation. If so, such lands also would be agricultural lands. There is no reason to hold that an agricultural land is only that land which is cultivated with paddy. An arecanut garden or a coconut garden would also come within the term "agricultural land" under sub-section (2) of Section 7 of the Court Fees Act. The mere presence of a residential house in such a land would not make it a non-agricultural land. The predominant purpose for which the land is used is to be taken into consideration to ascertain whether the land in question is an agricultural land.
18. In P.N.Sekhara Menon v. Ismail Sait Ummar Sait & others (1968 K.L.T. 619), Justice V.R.Krishna Iyer held thus: "3. Speaking broadly, court-fee is a fetter on the assertion of a right or the seeking of a remedy by a party, although a person who is unable to pay court-fee may thereby be deprived of the equal protection of the laws notwithstanding the considerate treatment extended, under Order XXXIII CPC., to paupers. That question, however, does not arise here, but I am persuaded to take the view that the provisions of the law of court-fees which are ameliorative in the sense of W.P.(C)NO.33129 OF2009::
17. :: enabling a party to pay a lesser court-fee should be interpreted liberally. ......" 19. In Ammunni Amma v. Ammalu Ammal (1977 K.L.T.285), it was held that the general rule is that court fee should be fixed on the basis of the averments in the plaint. In that case, the suit related to a property which was described as "Valarthukadu". The suit was filed for recovery of possession on the basis of title. Court fee was paid under Section 30 of the Court Fees Act determining the market value under Section 7 of the Court Fees Act on the basis of ten times annual gross profits derived by way of green manure. In that context, the Court held as follows: "4. The general rule is that court-fee should be fixed on the basis of the averments in the plaint. As matters now stand, there is no definiteness with regard to the income by way of cutting of trees. There are no materials to show that the plaintiffs are getting an income by way of cutting of trees every year. Therefore, the statement in the plaint that the annual gross income of the property is Rs.400/- derived from collecting green manure must be taken to be correct. The Court Fees Act is a fiscal statute. It is a well-known principle that in W.P.(C)NO.33129 OF2009::
18. :: taxing statutes, if words are possible of more than one interpretation, then effect should be given to that construction which favours the citizen and not the one that imposes a burden on him." 20. When Ammunni Amma v. Ammalu Ammal (1977 K.L.T.285) was decided, the expression "market value of land" was available in sub-section (2) of Section 7 of the Court Fees Act. By Act 6 of 1991, sub-section (2) of Section 7 of the Court Fees Act was amended and the expression "market value of land" was substituted by the expression "market value of agricultural land". To my mind, that would not make much change in considering the question whether a particular type of land is an agricultural land or not.
21. In Smt.Tara Devi v. Sri.Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Prasad and Meshwar Prasad and another (AIR1987SC2085, the Supreme Court held that in a suit for declaration with consequential relief, the plaintiff is free to make his own estimation of the reliefs sought for in the plaint and such valuation, both for the purpose of court fee and jurisdiction, has to be ordinarily accepted. It was further held thus: W.P.(C)NO.33129 OF2009::
19. :: " ... It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. The plaintiff has valued the lease hold interest on the basis of the rent. Such a valuation, as has been rightly held by the Courts below, is reasonable and the same is not demonstratively arbitrary nor there has been any deliberate underestimation of the reliefs..." 22. The view taken by the court below is incorrect and illegal. The finding on the issue of court fee affects the jurisdiction of the Court. I am of the view that the "Judgment" rendered by the court below is liable to be set aside. Accordingly, the "Judgment" dated 16.10.2009 is set aside.
23. As stated above, all the relevant details are not available in the plaint and in the written statement. The plaintiff is permitted to incorporate such averments in the plaint as are necessary for determining the market value of the property. Both parties will be W.P.(C)NO.33129 OF2009::
20. :: entitled to get an opportunity of being heard. If the plaint is amended, defendants would have a right to file an additional written statement also. The court below shall consider additional issue No.6 afresh in accordance with law and in the light of the findings rendered above. The Writ Petition is allowed as indicated above. (K.T.SANKARAN) Judge ahz/