Soudamini v. A.P. Padmanabhan Namboodiri and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 30TH DAY OF OCTOBER 2014/8TH KARTHIKA, 1936 OP(C).No. 1435 of 2014 (O) ------------------------------(OS 743/2010 of ADDITIONAL MUNSIFF COURT-II, KOZHIKODE. PETITIONER/PLAINTIFF: --------------------------- SOUDAMINI, AGED 76 YEARS, D/O. JANAKI AMMA MELE CHANDANAM, PARAMBATH P.O. CHEROOPA, CHEROOPA AMSOM, MALAPPURAM DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN ## RESPONDENTS/DEFENDANTS: --------------------------------- 1. A.P.PADMANABHAN NAMBOODIRI, AGED 57 YEARS S/O. CHERIYA GOVINDAN NAMBOODIRI ERANHAM PARAMBATH ILLATH, PO PERUVAYAL PERUVAYAL AMSOM DESOM, KOZHIKODE - 673 024. 2. A.P SUKUMARAN, AGED ABOUT 46 YEARS S/O CHERIYA GOVINDAN NAMBOODIRI ERANHAM PARAMBATH ILLATH, PO PERUVAYAL PERUVAYAL AMSOM DESOM, KOZHIKODE - 673 024. - 3. SAVITHRI ANTHARJANAM, AGED 76 YEARS - W/O CHERIYA GOVINDAN NAMBOODIRI ERANHAM PARAMBATH ILLATH, P.O PERUVAYAL, PERUVAYAL AMSOM DESOM KOZHIKODE - 673 024. (DIED. LR's RECORDED). 4. SUPPL. SARALA ANTHARJANAM, AGED 49 YEARS, W/O DIVAKARAN, AKKOTTILLAM, MAYYIL KUTTIATTUR AMSOM PAZHASSI DESOM, TALIPARAMBA - 670 141. 5. DIVAKARAN, AGED ABOUT 54 YEARS, S/O DIVAKARAN, AKKOTTILLAM, MAYYIL KUTTIATTUR AMSOM PAZHASSI DESOM, TALIPARAMBA - 670 141. OP(C).No. 1435/2014 6. RAMANI, AGED 34 YEARS W/O PADMANABHAN NAMBOODIRI ERANHAM PARAMBATH ILLATH P.O., PERUVAYAL PERUVAYAL AMSOM DESOM, KOZHIKODE - 673 024. 7. CHITHRALEKHA, AGED ABOUT 40 YEARS W/O SUKUMARAN, ERANHIPALAM PARAMBATH ILLATH P.O. PERUVAYAL, PERUVAYAL AMSOM DESOM, KOZHIKODE - 673 024. * (RESPONDENTS 1, 2 & 4 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED R3, AS PER THE ORDER DTD. 26.8.14 IN I.A.11452/2014). R1,R 2, R 4 -R 7 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R1,R 2,R 4 -R 7 BY ADV. SRI.PUSHPARAJAN KODOTH R1,R 2,R 4 -R 7 BY ADV. SRI.K.JAYESH MOHANKUMAR R1,R 2,R 4 -R 7 BY ADV. SMT.VANDANA MENON R1,R 2,R 4 -R 7 BY ADV. SMT.N.DEEPA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1435 of 2014 (O) ------------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS : ------------------------------ - EXHIBIT P1 : COPY OF THE PLAINT IN OS NO.743/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF-II, KOZHIKODE. - EXHIBIT P2 : COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS DATED 25.11.2010. - EXHIBIT P3 : COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE RESPONDENTS DATED 04.04.2013. - EXHIBIT P4 : A COPY OF THE ORDER DATED 27.01.2013 IN OP(C) NO.3130/2013. - EXHIBIT P5 : COPY OF THE ORDER DATED 30.05.2014 IN OS NO.743/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF-II, KOZHIKODE. - EXHIBIT P6 : COPY OF THE RECEIPT SHOWING THE PAYMENT TO KERALA AGRICULTURAL WORKERS WELFARE FUND BOARD, TRICHUR, DATED 14.7.2010. - EXHIBIT P7 : COPY OF THE LATEST ELECTRICITY BILL ISSUED BY THE KERALA STATE ELECTRICITY BOARD TO THE PETITIONER DATED 24.04.2014. ## I.A.9137/2014 EXHIBIT P8 : COPY OF CERTIFICATE ISSUED BY ASST.ENGINEER, ELECTRICAL SECTION, KSEB, MAVOOR DTD.25.6.14. - EXHIBIT P9 : COPY OF CERTIFICATE DTD.27.6.14 ISSUED BY AGRICULTURAL OFFICER, KRISHI BHAVAN, MAVOOR TO THE PETITIONER. ## I.A.11452/2014 EXHIBIT P10: COPY OF STATEMENT DTD. 22.9.12 FILED BY PETITIONER IN O.S.743/2012 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE. RESPONDENT(S)' EXHIBITS : NIL -------------------------------- // True Copy // P.A. To Judge. smp ## **P.BHAVADASAN, J.** **------------------------------------------------Original Petition (Civil) No.1435 OF 2014 ------------------------------------------------Dated this the 30[th] day of October, 2014.** ## **J U D G M E N T** 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. 2. The court below seems to have greatly impressed by the contention raised by the learned counsel for the respondentsdefendants and ordered payment of court fee under Section 7 (3A) of the Act. The said order is under challenge. **O.P.(C) No.1435/2014** **2** 3. Learned counsel appearing for the petitioner 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. 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 Commissioner's report shows that there are 147 coconut trees in the property. The petitioner has also produced certain documents to show that electricity for the pump set used in the property is being paid by Krishi Bhavan since the property is put to use for agricultural purpose. According to the petitioner, these facts have been lost sight of by the court below. 4. The court below, according to the petitioner, was carried away by the nomenclature of the property shown in the documents so also the fact that there is a residential building. In support of his contention, learned counsel relied on the decision **O.P.(C) No.1435/2014** **3** ## in _**Narayanan Nair** vs._ _**Dr.Lokeshan Nair**_ (2014 (2) KLT 868). 5. Learned counsel appearing for the respondents 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. Further contention is that the petitioner had assigned a portion of her property to her daughter in which too the property is shown as garden land. Further, it is an admitted fact that there is a residential building in the property. These facts cannot be lost sighted of and if these aspects are taken into consideration, it follows that the property is not an agricultural property. According to the respondents, the court below has rightly come to the conclusion that court fee has to be paid under Section 7(3)(A) of the Act. 6. In the light of the decision in _**Narayanan Nair** vs._ _**Dr.Lokeshan Nair**_ (2014 (2) KLT 868), it is difficult to accept the contention put forward by the learned counsel for the respondents. In the said decision, an identical case was considered and it was held as follows: “11. The term 'agricultural land' is not defined in the Court Fees Act. If it is agricultural land, market value shall **O.P.(C) No.1435/2014** **4** 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 S.7 of the Court Fees Act. Sub-section (3) of S.7 of the Court Fees Act provides for determining the market value of a building. S.7 does not give any indication as to whether market value is to be determined under sub-section (3) of S.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 S.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 sub-section (2). The expression “gross profits of such land” would include the rental value of the residential building also. Sub-section (3) of S.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 S.7 of the Court Fees Act **O.P.(C) No.1435/2014** **5** 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. 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 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 S.2(1), 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”. 7. As rightly pointed out by the learned counsel for the petitioner, going by the said decision, nomenclature of the land **O.P.(C) No.1435/2014** **6** as specified in the plaint or in the document may not have much relevance in the context. Going by the above decision, it would appear that it is the purpose for which the property is being put to use that should determine the issue. Viewed from that angle, it could be seen that various documents produced by the petitioner including the additional documents before this Court would clearly suggest that the property is an agricultural property. 8. True, the petitioner, while assigning the property to her daughter showed the nomenclature as garden land and also that there is a residential building. But, as long as agricultural land is not defined under the Court Fees and Suits Valuation Act and also since there is no prohibition that garden land cannot be used as agricultural land, the dictum laid down squarely applies to the facts of the case. The court below has erred in directing the petitioner to pay court fee under Section 7(3A) of the Court Fees and Suits Valuation Act. Going by the test laid down in the decision cited above, it is clear that the property qualifies as agricultural **O.P.(C) No.1435/2014** **7** property and that the petitioner needs to pay court fee under Section 7(2) of the Act. As to whether proper court fee has been paid on that basis is a matter to be considered by the court below in which case the respondents shall also be heard. This original petition is disposed of as above. Sd/- **P.BHAVADASAN JUDGE** smp