Case Note & Summary
The petitioners, original plaintiffs, filed a suit challenging the Will of Narinder Singh Chowdhary, who died on 21/01/2012. The plaintiffs sought a declaration that the Will dated 22/12/2010 and the amended Will dated 4/4/2011 were vitiated by fraud, and for cancellation and setting aside of the Wills, along with a permanent injunction restraining the defendants from acting upon the Wills. The respondents filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, contending that the suit was not properly valued and that the plaintiffs had not paid the requisite court fees. The trial court partly allowed the application, directing the plaintiffs to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee within 15 days. The petitioners challenged this order by way of a writ petition under Article 227 of the Constitution of India. The High Court examined the prayers in the suit and held that the suit was not a mere declaratory suit but one for cancellation of the Will, which requires proper valuation under the Bombay Court Fees Act. The court found no infirmity in the trial court's order and dismissed the writ petition, upholding the direction to value the suit and pay deficit court fee.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Suit for Cancellation of Will - The suit seeking declaration that Will is vitiated by fraud and for cancellation and setting aside of the Will is not a mere declaratory suit but requires proper valuation under the Bombay Court Fees Act. The trial court partly allowed the application under Order VII Rule 11 CPC directing the plaintiffs to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee. (Paras 1-5)
B) Court Fees - Valuation - Sections 6(iv)(d) and 6(iv)(ha) of Bombay Court Fees Act, 1956 - Suit for Cancellation of Will - The plaintiffs sought declaration that the Will was vitiated by fraud and for cancellation of the Will. The court held that such a suit is not a mere declaratory suit but one for cancellation, and therefore the plaintiffs must value the suit under the relevant provisions of the Bombay Court Fees Act. The trial court's order directing valuation and payment of deficit court fee was upheld. (Paras 4-5)
Issue of Consideration
Whether the suit for cancellation of a Will on the ground of fraud is a suit for declaration simpliciter or requires valuation under the Bombay Court Fees Act, and whether the trial court's order directing valuation under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 is correct.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 13/09/2012 directing the plaintiffs to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee within 15 days.
Law Points
- Suit for cancellation of Will is not a mere declaratory suit
- valuation under Bombay Court Fees Act
- Order VII Rule 11 CPC
- Sections 6(iv)(d) and 6(iv)(ha) of Bombay Court Fees Act
- 1956
Case Details
2013 LawText (BOM) (02) 31
Writ Petition No. 9150 of 2012
Mr. Rajesh S Patil for the Petitioners, Mr. Siddharth R Ronghe for the Respondents
Mrs. Roopa Kailash Ganatra & Anr.
Mrs. Reena Sabherwal & Ors.
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order passed by the trial court on an application under Order VII Rule 11 CPC in a suit for cancellation of a Will.
Remedy Sought
The petitioners sought to set aside the trial court's order directing them to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee.
Filing Reason
The petitioners challenged the trial court's order partly allowing the application under Order VII Rule 11 CPC, which directed them to value the suit and pay deficit court fee.
Previous Decisions
The trial court (19th Civil Judge, Junior Division, Pune) passed an order on 13/09/2012 partly allowing the application Exhibit 51 under Order VII Rule 11 CPC, directing the plaintiffs to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee within 15 days.
Issues
Whether the suit for cancellation of a Will on the ground of fraud is a mere declaratory suit or requires valuation under the Bombay Court Fees Act.
Whether the trial court's order directing valuation under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 is correct.
Submissions/Arguments
The petitioners argued that the suit was a declaratory suit and did not require valuation under the Bombay Court Fees Act.
The respondents contended that the suit was for cancellation of the Will and required proper valuation and payment of court fees.
Ratio Decidendi
A suit seeking cancellation of a Will is not a mere declaratory suit but requires valuation under the relevant provisions of the Bombay Court Fees Act, 1956. The trial court's order directing valuation under Sections 6(iv)(d) and 6(iv)(ha) was correct and no interference was warranted under Article 227 of the Constitution of India.
Judgment Excerpts
The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order 13/09/2012 passed by the learned 19th Civil Judge, Junior Division, Pune, by which order the application Exhibit 51 filed under Order VII Rule 11 of the Code of Civil Procedure came to be partly allowed and the Plaintiffs were directed to value the suit as per the provisions of Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee within 15 days from the date of the said order.
A reading of the prayers therefore discloses that the Plaintiffs have sought a declaration that the alleged Will dated 22/12/2010 of late Mr.Narinder Singh Chowdhary is vitiated by fraud. The Plaintiffs have accordingly sought cancellation and setting aside of the said Will.
Procedural History
The petitioners (original plaintiffs) filed Regular Civil Suit No.3190 of 2012 challenging the Will of Narinder Singh Chowdhary. The respondents filed an application Exhibit 51 under Order VII Rule 11 CPC. The trial court partly allowed the application on 13/09/2012, directing the plaintiffs to value the suit under Sections 6(iv)(d) and 6(iv)(ha) of the Bombay Court Fees Act, 1956 and pay deficit court fee. The petitioners challenged this order by filing Writ Petition No.9150 of 2012 under Article 227 of the Constitution of India. The High Court dismissed the writ petition on 05/02/2013.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VII Rule 11
- Bombay Court Fees Act, 1956: 6(iv)(d), 6(iv)(ha)
- Constitution of India: Article 227
