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Krishna Kishore   07 January 2022

About court fee in suits of immovable property

This question is about court fee for different suits dealing with immovable property. 

Let us say the value of immovable property is rupees one crore only. 

Consider the following suits. 

Suit for declaration and injunction 

Suit for possession 

Suit for partition 

We know that the court fee for the above suits is governed by different sections of court fee act and the court fee is different for different suits. 

Many lawyers know how to calculate court fee for the above suits. 

Now consider the Suits for cancellation of decrees granted in the above Suits. 

What will be the court fee to be paid for  CANCELLATION OF DECEEE of declaration and injunction?

What will be the court fee to be paid for CANCELLATION OF DECREE of possession?

What will be the court fee to be paid for CANCELLATION OF DECREE of partition?

I asked lawyers and they are not sure. The section of CANCELLATION OF DECREE in the court fee act is not clear. Will the court fee for cancellation of all the above decrees be same or different? Will it depend on the type of decree to be canceled? Or will it be same irrespective of the type of decree to be canceled? 

Assume that the value of immovable property is rupees one crore only. 

I consulted a couple of lawyers, but they are not sure, because they never worked on cancellation of decrees. 

If any of you know, please tell the answer. 

Krishna Kishore 

Krishnakishorekdp@gmail.com

 



Learning

 29 Replies

P. Venu (Advocate)     07 January 2022

The posting is a question paper than  a query.

Dr J C Vashista (Lawyer)     08 January 2022

Court fees, Stamp duty and registration charges are a State subject which differ from a State to another State.

What is your dispute / problem / locus standi/ facts vis-a-vis query for consideration and obligation of experts on this platform, if it is not an examination hall question paper ? 

Why should we assume for a hypothetical and fabricated post ?

It would be better to seek professional consultancy from a local prudent lawyer.

G.L.N. Prasad (Retired employee.)     08 January 2022

A legitimate query in AP as courts are not accepting such court fee SC Judgment after full high court bench decision.

Mr.KK

If you are from AP, the full bench of the AP High court has ruled that the market value of the property must be considered for payment of the court fee on the declaration.

However, Supreme Court overruled and delivered judgment interpreting the minds of law markers and clearly stated that the amount stated in the decree stated in that decree to be canceled has to be considered for arriving as court fee 

That judgment is available in google and please make a search.

 

If the market value shown in the decree  was Rs.5lakhs

the present market value is Rs.1 crore

the fee must be collected on such decretal amount of Rs.5 lakhs only.

If you fail to found inform me so that I can enclose such judgment.

 

37. Suits for cancellation of decrees, etc :-

 (1) In a suit for cancellation of a decree for money or other property having a money value, or other documents which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be

- (a) if the whole decree or other document is sought to be canceled, the amount or value of the property for which the decree was passed or other document was executed;

 (b) if a part of the decree or other document is sought to be canceled, such part of the amount or of the value of the property

1 Like

T.K.DAS   08 January 2022

Dear G L N Prasad sir, 

Thank you for your kind reply. 

For an immovable property value of rupees one crore only, usually the court fee for partition suit will be very low, such as Rs. 200. But the court fee for suit for possession will be quite high, probably Rs. 50,000. 

Will the court fee be same or different for CANCELLATION of different types of decrees? 

Now, my question is, in the above cases, what will be the court fee for cancellation of decree of partition? What will be the court fee for cancellation of decree of possession? 

Will the court fee for CANCELLATION be same irrespective of the type of decree (partition or possession)? Or, will it be different for CANCELLATION of different types of decrees?

Thank you once again for your kind reply, G L N Prasad sir. 

 

I already consulted a couple of lawyers and they are not sure. This is not an acadenic examination hall question paper query. 

Right now, I am faced with the problem of cancellation of decree for partition. Originally, the suit was valued at rupees one crore only and a court fee of Rs. 200 was paid. Now, if I want to cencel this decree of partition what is the court fee to be paid? 

I was shocked when a lawyer told me that I have to pay a few lakhs as court fee for cancellation of decree of partition. How is this logical? Court fee to obtain a decree of partition is Rs. 200 only, but the court fee to cancel the decree of partition is a few lakhs of rupees. Is this fair and just? Is the lawyer right or wrong? 

That is why I posted this question. 

Very few lawyers worked on cancellation of decrees. Many of them do not know about cancellation of decrees. 

 

G.L.N. Prasad (Retired employee.)     08 January 2022

As  you are well aware the "possession" determines the ultimate court fee for partition suits.

If the property is in possession of any undivided co-sharer, it is deemed that the possession is joint and the possession with co-sharer is as trustee for others.

However if one of the co-sharer sells the property without knowledge of others, the possession is lost and decreetal amount decides the court.

There are conflicting judgments.  According to Madras HC Judgment (which is ultimate for mitakshara law the court felt that the co-sharer can not bind other's share and such sale of the entire property is not bonafide and hence he can file partition suit with such PRAYER FOR DECLARATION OF HIS PART.

But the court registry guides the advocates and demands for court fees on market rates and still some partition suits are dismissed stating that the party has to file a declaration suit with an Advelorium court fee.  The unfortunate thing was when such an issue was not framed, after 15 years the court dismissed with such inadequate stamp duty and a declaration suit had to be filed.

Declaration suit without seeking possession is dismissed.

Workshops are conducted for working judges and eminent judges participate and contribute articles with latest judgments and please search in google for such judgments on 'declaration'.  These articles are guides to understand the latest and correct interpretation.

1 Like

Krishna Kishore   09 January 2022

Thank you very very much, sir.

Your answers are enlightening and useful. 

Thank you very much for answering my questions with patience. 

G.L.N. Prasad (Retired employee.)     09 January 2022

Sir

I am not a junior doctor but a  senior patient.

1 Like

Krishna Kishore   09 January 2022

Thank you, sir. 

P. Venu (Advocate)     10 January 2022

I am afraid that the querist yet to come up with the facts. It is seldom that a fresh suit could be filed for cancellation of decree in  a partition suit as law and its procedure discourages multiplicity of suits. In the absence of the complete and material facts as to the realtime issue, if any, any amount of discussion and debate is bound to be inchoate.

2 Like

G.L.N. Prasad (Retired employee.)     10 January 2022

Sir,

In Andhra Pradesh when one co-sharer sells the entire property as his own, the partition suit is being dismissed with a finding that he has to file a declaration suit and pay court fee on market value and establish such fraud.

Supreme Court has also not intervened in such dismissals and as such after the dismissal of partition suits, parties are filing declaration suits on fraud as per directions of the trial court.

Regarding the limitation period, the property is being treated as a joint family property suit by a co-sharer and for determining the court fee the share in such market value of the sale deed executed by the co-sharer is being treated as the factor

THESE types of declaration suits are being filed in cases where one of the co-sharer is NRI and the trustee/co-sharer in joint possession sells away the property in his possession, and in most of the cases, even after such sale the sharer who was in possession, even after the sale is sending the crop sale proceeds for decades, and the NRIs are treating that the property is still in existence when they came to know the facts, it takes decades.  The purchasers are not bothered if possession is taken and they are aware that it takes several decades for getting a final verdict from courts and there may be a compulsive compromise within the seller's family.  These types of cases are many now and some became Dickensian cases pending for generations.

2 Like

P. Venu (Advocate)     10 January 2022

To my knowledge, in such scenerio, it is a viable option to file suit for partition pleading the property to be in the joint possession of all plaintiff and the defendants leaving it to the defendant(s) who had sold the property to plead the factum of sale and establish his title to sell the property.

1 Like

Shashi Dhara   11 January 2022

In partition suit  decree passed he has to file  petition to pass final decree ,after passing final decree each sharer gets his specific share as decree ,now how many parties are their to cancel partition decree ,more than two parties ,laa of you jointly filing petition ,the defendants will agree  ,you do one thing when brihat lok Adalat is conducted their you  claim your relief no court fee ,no plaint ----

2 Like

G.L.N. Prasad (Retired employee.)     11 January 2022

It is the practice and trial courts are dismissing such partition suits, stating that the physical possession was already with strangers, and hence a declaration suit has to be filed with the market value of the property.   AP High court  has agreed with trial contentions and SLP at SC has not admitted stating that SC interference is required.

1 Like

Krishna Kishore   11 January 2022

I am very grateful to all of you for your very very useful and insightful answers. 

I am on the defendants side in the partition suit and I had already filed an IA (interlocutory application) within the same suit in the lower court and prayed the lower court to set aside the preliminary decree saying that it is obtained by fraud. It was rejected without even numbering saying that it is not maintainable. In a Civil Revision Petition, the High Court also said it is not maintainable. They say that a preliminary decree (or any other decree) cammot be set aside in the same suit in which it was granted, even if the suit is still pending. They say a separate suit has to be filed to set aside the preliminary decree. They said that this partition suit was filed by the plaintiff claiming certain RELIEFS. Now if you want your own RELIEFS, then you must file your own suit. Now the question is, whether setting aside a preliminary decree obtaned by fraud can be termed as a RELIEF ?

My contention is that I am merely defending myself against a preliminary decree obtained by fraud and that I am entitled to defend myself against a preliminary decree obtained by fraud, and therefore the preliminary decree must be set aside in the same suit. But they say it is a RELIEF and therefore I must file a separate suit. 

A search on internet for SUIT FOR SETTING ASIDE DECREE shows that such suits had been filed in the past. In the court fee act also, we have a separate section for CANCELLATION OF DECREES AND OTHER INSTRUMENTS. 

I was eager to file a separate suit to set aside the preliminary decree and started consulting lawyers. In one such discussion, one lawyer said that I would have to pay an exorbitant court fee. That is what made me to post this question in this forum. 

Many many thanks. 

Krishna Kishore

 


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