Relying
on the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair1
that the predominant purpose for which
the land is used is material in determining whether sub-section (2) or
sub-section (3) of Section 7 Kerala Court Fees and Suits Valuation Act would
apply in the matter of determination of market value for the purposes of paying
court fee, the Kerala High Court in Soudamini v. A. Padmanabhan Namboodiri2
has held that the purpose for which the property is put to use, rather than the
nomenclature shown in any document, is to be the basis for the purpose of
fixing court fee under Section 7 of the Kerala Court Fees and Suits Valuation
Act ("the Act" for short).
Sub-sections
(1), (2) and (3) of Section 7 of the Kerala Court Fees and Suits Valuation Act
are extracted below:
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 the 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.
[“(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.”]
In
Soudamini (supra), in a suit for
injunction, when the defendants disputed the title of the plaintiff over the
plaint schedule property, issue on title was framed and the court below
directed to remit court fee under Section 27(a) of the Court Fees and Suit
Valuation Act. The plaintiff calculated the market value of the property under
Section 7 (2) of the Act treating the suit property as agricultural land and
claimed that he is only bound to pay court fee on that basis. This stand of the
plaintiff was disputed by the defendants by pointing out that the property in
question is a garden land with a residential building therein and if that be
so, court fee will have to be paid under Section 7 (3A) of the Act. The Trial
Court upheld the objection of the defendant and passed the impugned order
directing the plaintiff to pay court fee under Section 7 (3A) of the Act.The
plaintiff assailed the said order in the High Court of Kerala.
Mr.
P.V. Kunhikrishnan, the Counsel for the petitioner/plaintiff assailing the
order passed by the Trial Court contended that merely because the property is
described as garden land in the plaint, it does not mean that it cannot be used
for agricultural purpose. Relying on Narayanan Nair v. Dr.Lokeshan Nair
(supra), he contended that the court below has to ascertain the purpose for
which the property is put to use and fix court fee on that basis and not on the
basis of nomenclature shown in any document. Nomenclature of the property shown
in any of documents is not the sole criteria. But the actual purpose for which
the property is put to use should determine the issue. The Counsel for the
defendants, Mr. T. Sethumadhavan, Senior Advocate, on the other hand supported
the order passed by the trial Court. He contended that having shown the
property as garden land in the plaint and without amending the plaint, it
cannot be now termed as agricultural land. It was also pointed out that the
petitioner had assigned a portion of her property to her daughter in which too,
the property is shown as garden land, and that it is an admitted fact that
there is a residential building in the property. These facts cannot be lost
sight of and if these aspects are taken into consideration, it follows that the
property is not an agricultural property, contended the learned Counsel for the
respondents/defendants.
The
High Court of Kerala speaking through Justice P. Bhavadasan accepted the
contentions of the petitioner/plaintiff in the light of the dictum laid down in
Narayanan Nair v. Dr.Lokeshan Nair (supra) that Sub-section
(3) of Section 7 of the Court Fees Act would apply only where the property
consists of the building and not where a building is situated in an
agricultural land. In that case, the High Court had held thus:
"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 S.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 S.7 of the Court Fees Act would apply. Sub-section
(3A) of S.7 of the Court Fees Act would apply only when sub-sections (2) and
(3) of S.7 would not apply."
Answering
the contention of the respondents that in the documents executed by the
petitioner assigning portion of the property to her daughter, the property was
shown as garden land, the High Court of Kerala said that as long as
agricultural land is not defined under the Court Fees and Suits Valuation Act
and given the fact that there is no prohibition that garden land cannot be used
as agricultural land, the dictum laid down in Narayanan Nair v. Dr.Lokeshan
Nair (supra) squarely applies to the facts of the case and held that
nomenclature of the land as specified in the plaint or in the document may not
have much relevance in the context."
The
High Court of Kerala accordingly, held that the Trial Court had erred in
directing the petitioner to pay court fee under Section 7 (3A) of the Court Fees
and Suits Valuation Act, and going by the decision in Narayanan Nair v.
Dr.Lokeshan Nair (supra), the property qualifies as agricultural property
and that the petitioner needs to pay court fee under Section 7 (2) of the Act.
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1.
2014 (2) KLT 868
2.
O.P. (C).No. 1435 of 2014 (O) decided on 30.10.2014
