P. Thillai Selvan Petitioner v. Mrs. Shyna Paul

This Civil Revision Petition is filed challenging the order dated 3.3.2011 made in I.A.No.175 of 2010 in O.S.No.12123 of 2010 on the file of the Additional District and Sessions Court (Fast Track Court-V), Chennai, in dismissing the application filed by the petitioner under Order 7 Rule 11 CPC for rejection of the plaint.

2. The petitioner herein is the second defendant in the said suit. The first respondent herein is the plaintiff and the second respondent herein is the first defendant in the said suit. The first respondent/plaintiff filed the said suit for declaration to declare the gift deed, dated 16.7.2001 and the sale deed, dated 16.3.2005 as null and void; for possession of the suit premises and for permanent injunction restraining the defendants from alienating, encumbering and transferring the suit property in favour of third parties.

3. The petitioner as second defendant filed the said application for rejection of the plaint mainly by contending that the suit was barred by limitation and it was not properly valued. The said application was resisted by the first respondent/plaintiff contending that the suit was not under-valued, as the Court fee was rightly paid under Section 25(a) of the Tamil Nadu Court Fees and Suits Valuation Act by valuing the suit property at Rs.21 laks. It is further contended that the relief of possession being the consequential relief, there need not be any separate valuation of the suit property for such consequential relief. Insofar as the objection with regard to the limitation, it is contended by the plaintiff that she filed O.P.No.520 of 2004 before this Court for grant of Letters of Administration and such petition was ordered only on 14.6.2007, and hence, the right to sue accrued to the plaintiff only from the date of the said order. Thus it is contended that the suit was filed within three years from the said date, and therefore, the suit was filed well within the period of limitation.

4. The Court below found that the suit was filed for declaration that the gift deed, dated 16.7.2001 is null and void and the relief of possession was sought for only as a consequential relief. Thus, the Court below has found that the valuation under Section 25(a) of the said Act is sufficient for the relief. Insofar as the question of limitation is concerned, the Court below found that the suit was filed well within three years from the date of the order made by this Court in O.P.No.520 of 2004 granting Letters of Administration to the first respondent/plaintiff. Thus, by observing so, the Court below found that the petition seeking rejection of the plaint on those grounds, cannot be sustained, and accordingly, dismissed the said petition.

5. Learned counsel appearing for the petitioner submitted that the suit has to be filed within three years from the date of the document sought to be declared as null and void, and therefore, the suit having not been filed within such period, is hopelessly barred by limitation, and hence, the Court below ought to have rejected the plaint. He further submitted that the Court fee paid by the plaintiff was by under-valuing the property, since for the relief of recovery of possession, the plaintiff has not valued the suit property properly. In support of his submissions, learned counsel relied on the decision of the Honourable Supreme Court reported in 2006 (10) SCC 442 (Binapani Kar Chowdhury Vs. Sri Satyabrata Basu).

6. Per contra, learned counsel appearing for the first respondent submitted that the right to sue accrued to the plaintiff only after the order was made by this Court in O.P.No.520 of 2004 and therefore, filing the suit within three years from the date of such order, is within the period of limitation. He further submitted that Section 213 of the Indian Succession Act contemplates that no right can be claimed in respect of the property referred to under a Will, unless probate of the said Will is ordered by the competent Court. Insofar as the question of limitation is concerned, it is contended by the learned counsel for the first respondent that such question is a mixed question of law and fact and it can be gone into only during trial. He further contended that the Court fee is a matter between the Court and the party, namely the plaintiff, and therefore, the second defendant, namely the petitioner herein, has no locus-standi to question the same. He further contended that valuation of Court fee is also mixed question of law and fact, and therefore, it cannot be a ground for rejection of plaint. In support of his submissions, learned counsel for the first respondent relied on the following decisions of this Court:

(a) 1996 (2) CTC 523 (Varadaraja Pillai Vs. Muthusamy Pillai and two others);

(b) 2013 (5) CTC 12 (L.P.Alaghappa Chettiar Vs. V.Janardhanan);

(c) 2010 (2) CTC 502 (P.S.Karunakaran Vs. Madras Race Club);

(d) 1996 (1) CTC 280 (G.Krishnamurthy Vs. Sarangapani);

(e) 2011 (2) CTC 763 (Nagarjuna Oil Corporation Ltd. Vs. R.Revathi).

7. Heard the learned counsel appearing on either side and perused the materials placed before this Court.

8. The first respondent herein as plaintiff filed the said suit for the reliefs as discussed supra. Insofar as the relief of declaration of sale deed, dated 16.3.2005 is concerned, the first respondent/plaintiff valued the suit at Rs.21 lakhs and paid the Court fee of Rs.24,525/-. Insofar as the relief of declaration against the gift deed, dated 16.7.2001 is concerned, the first respondent/plaintiff valued the suit at Rs.1,000/- and paid the Court fee of Rs.75.50. Insofar as the consequential relief of recovery of possession is concerned, the first respondent/plaintiff valued the suit at Rs.1,000/- and paid the Court fee of Rs.75.50. In respect of the relief of permanent injunction, the first respondent/plaintiff valued it at Rs.1,000/- and paid the Court fee at Rs.75.50.

9. According to the second defendant who is the petitioner herein, such valuation of the suit is not correct and therefore, the plaint has to be rejected. The valuation of the suit property and payment of Court fee thereon, are certainly not purely question of law and on the other hand, it is a mixed question of law and fact. Therefore, the plaint cannot be rejected based on the objection raised in respect of the valuation of the suit property, especially when such objection is opposed and denied by the plaintiff. At this juncture, it is useful to refer the decision of this Court reported in 2011 (2) CTC 763 (cited supra), wherein, in paragraph 9, it has been observed as follows:

"9. According to me, that question can be decided by the Court below by permitting the party to lead the evidence. The reason is that the Court fee is a mixed question of fact and law and it cannot be decided as a preliminary issue. Nevertheless, under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, any Defendant may, by his Written Statement filed before the first hearing of the Suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject matter of the Suit has not been properly valued or that the fee paid is not sufficient. When such questions are raised, the same shall be decided before the evidence is recorded. ...."

10. In the decision of this Court reported in 2010 (2) CTC 502 (cited supra), it was observed in paragraph 26 as follows:

"26. ..... At any rate, the Petition filed under Order 7, Rule 11 of the Code of Civil Procedure is not at all maintainable as there was no direction flowed from the Court for payment of any stamp duty and there was no failure on the part of the plaintiff to pay the difference in Court-fee."

11. In the decision of this Court reported in 1996 (1) CTC 280 (cited supra), this Court observed that the issue regarding the Court fee is between the Court and the plaintiff and such issue or findings rendered thereon, will not cause any prejudice to the defendant. The relevant portion of the said decision is extracted hereunder:

"3. ... .... The preliminary issue regarding court-fee is essential and the matter is between the Court and the suitor and the finding rendered by the Court cannot be said to have caused any prejudice to the defendants. As pointed out by learned counsel for the plaintiff, the revision under section 115, C.P.C. is also not maintainable. ..."

12. In the decision reported in 1996 (2) CTC 523 (cited supra), this Court observed that the Court fee must be considered in the light of the allegations made in the plaint.

13. Insofar as the question of limitation is concerned, as rightly submitted by the learned counsel for the first respondent/plaintiff, it is purely a mixed question of law and fact, and therefore, based on such allegations, the plaint cannot be rejected even before trial is conducted to find out as to whether such allegations are true and sustainable in the eye of law.

14. Learned counsel for the petitioner/second defendant relied on the decision of the Honourable Supreme Court reported in 2006 (10) SCC 442 (cited supra) to contend that the suit ought to have been filed within three years from the date of execution of the gift deed. In paragraphs 4 and 5 of the said decision, the Honourable Supreme Court observed as follows:

4. Section 213 of the Indian Succession Act ("Act" for short) provides as to when the right of the executor or legatee is established. Sub-section (1) thereof provides that no right as executor or legatee can be established in any court unless a court of competent jurisdiction in India, has granted probate of the Will under which the right is claimed (or has granted letters of administration with the Will or with a copy of the Will annexed.) It is not in dispute that the said Section applies in the case of Wills made by a Hindu who is a resident of Calcutta. The trial court and the High Court have proceeded on the basis that having regard to section 213 of the Act, the suit cannot be decided unless the executor of the Will produces the probate. Section 213 clearly creates a bar to the establishment of any right under a Will by the executor or legatee unless probate or letters of administration of the Will have been obtained. This Court in Mrs.Hem Nolini Judah v. Mrs.Isolyne Sarojbashini Bose (1962 Supp (3) SCR 294 = AIR 1962 SC 1471), held as follows :

"The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration."

5. Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has been appointed under the Will) or letters of administration (where no executor is appointed under a Will) have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a, claim as an executor or a legatee, in the absence of a Probate or Letters of Administration in regard to such a will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs) and he dies during the pendency of the suit, the executor or legatee under his will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration has not been granted by a competent court."

15. A perusal of the abovesaid decision would show that an executor or a legatee claiming under a Will can file a suit or initiate action and however, the Court cannot pass a decree or final order in such suit or action in the absence of a probate or a Letters of Administration in regard to such a Will. In this case, the question as to whether the action initiated by the plaintiff is an action which can be initiated only when he gets a right or otherwise, is purely a question of fact that has to be gone into by the Court below during the time of trial to decide the question as to whether the suit was filed within the period of limitation. The abovesaid decision of the Apex Court does not deal with the application filed under Order 7 Rule 11 CPC and on the other hand, it has dealt with the issue as to whether Section 213 of the Indian Succession Act, 1925, bars an executor or a legatee under a Will from establishing any right under a Will, unless probate or Letters of Administration is obtained. Therefore, to apply the said decision to the present case, the facts and circumstances of the case supported by material evidence, have to be gone into by the Court below at the time of trial. Therefore, in my considered view, the said decision cannot be applied while deciding an application under Order 7 Rule 11 CPC seeking for rejection of the plaint itself and hence, the abovesaid decision will not help the petitioner herein, at this stage, in any manner. However, it is open for the petitioner/second defendant to canvass the said issue by filing written statement and substantiate his stand during the time of trial. It is needless to say that the trial Court will consider all those issues including the issue of payment of Court fee as well as the question of limitation, and give its finding on merits and in accordance with law, in all those issues.

16. Since the limited scope of this Civil Revision Petition is as to whether the application filed by the petitioner seeking rejection of the plaint, is maintainable or not, I find that the Court below has rightly rejected the application based on the above discussion of the facts and circumstances.

17. Therefore, I find no irregularity or infirmity in the impugned order. Accordingly, the Civil Revision Petition is dismissed. The trial Court is directed to take up the suit and dispose of the same on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. It is made clear that any observations made in this order, shall not prejudice the mind of the trial Court while disposing the suit on merits. No costs. The Miscellaneous Petition is closed.

19.9.2014 Index: Yes Internet: Yes Office to note: Issue order copy by 22.9.2014 cs To The Additional District and Sessions Judge (Fast Track Court-V), Chennai, C.R.P.(PD).No.2557 of 2011