SHRI. NARAYAN BABURAO PAWARversusMARUTI BABURAO PAWAR AND ORS

                                                        30-WP-7431-2019.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO. 7431 OF 2019
Swapnil
          Narayan Baburao Pawar.                         …Petitioner
               Vs.
          Maruti Baburao Pawar and Ors.                  …Respondents


          Mr. Hemant Ghadigaonkar a/w. Ms. Pallabi Chatterjee,
          Mr. Ohm Gandhi for the petitioner.
          Mr. Nikhil Adkine h/f. Ms. Prachi Tatake for respondent no.13.

                                 CORAM : GAURI GODSE, J.

                                 DATE :        22nd JULY 2026

          ORDER :


          1.    This writ petition is filed by the original plaintiff to

          challenge the order passed by the trial court directing the

          plaintiff to value the suit as per Section 6 (iv) (ha) of the

          Maharashtra Court Fees Act. The suit is filed for a

          declaration that the sale deed executed by deceased Sahadu

          is false and illegal. The plaintiff is claiming through deceased

          Babu. The sale deed was executed by the deceased Mahadu

          and Sahadu, who were brothers of Babu. The defendants are

          from the branch of Mahadu and Sahadu. The plaintiff has

          also prayed for partition and separate possession.



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2.    Learned counsel for the petitioner submits that since

there is a prayer for partition and separate possession and

the valuation is made as per the plaintiff’s 2/5 th share, the

plaintiff cannot be held liable to value the suit under clause

(ha) for the prayer for declaration.


3.    Learned counsel for respondent no. 13, who claims

through the branch of deceased Mahadu and Sahadu,

submits that the prayer in the suit is for declaration that the

entire sale deed be declared as false and illegal. Hence, the

plaintiff would be liable to value the suit and pay the court

fees as per Section 6 (iv) (ha) of the Court Fees Act. He,

therefore, submits that the prayer is not restricted to the

plaintiff’s share. Hence, in view of prayer clause ‘a’, the suit

is rightly held to be valued as per Section 6 (iv) (ha).


4.    Learned counsel for respondent no.13 relies upon the

decision of this court in Diamond Developers Office

Through It’s Partner Dineshbhai Premjibhai Patel Vs.

Krishna Sitaram J. Shetty and Ors 1. He submits that this

position is clarified in the said decision in paragraph 25. He,

therefore, submits that there is a prayer for declaration in

respect of the entire sale deed, which has the effect of
1 2017 SCC ONLine Bom 9801

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cancellation of the entire sale deed, and not restricted to the

share of the plaintiff. Hence, the valuation has to be done as

per Section 6 (iv) (ha).


5.    Learned counsel for the petitioner relies upon the

observations in paragraphs 23 and 24 of the said decision to

support his submission that since the prayer for partition and

separate possession and for the share of the plaintiff is

already valued and the court fees is paid, the plaintiff cannot

be held liable to pay the court fees and value the suit as per

Section 6 (iv) (ha) of the Court Fees Act.


6.    I have perused the papers of the petition and the

aforesaid decision. A perusal of the plaint shows that the

substantive prayer is for a declaration that the sale deed is

false, invalid and illegal, and there is a prayer for partition

and separate possession of 2/5th share. Since the prayer is

for declaration in respect of the entire sale deed and not

restricted to the undivided share of the plaintiff, the valuation

made as per Section 6 (vii) of Court Fees Act would not inure

to the benefit of the plaintiff to contend that the suit is not

required to be valued for the substantive prayer clause ‘a’

which seeks declaration in respect of the entire sale deed.


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The effect of prayer clause ‘a’ would have the effect of

cancellation of the entire sale deed, not restricted to the

undivided share of the plaintiff. Hence, the suit will have to be

valued as per Section 6 (iv) (ha) of the Court Fees Act.


7.    The observation of this court in paragraph 25 of the

aforesaid decision clarifies that when the substantial relief is

for partition and separate possession and the prayer for

declaration is an incidental relief in respect of the sale deed

executed by another co-owner in favour of the third party, the

value of the claim for a declaration under Section 6 (iv) (j) of

the Court Fees Act would applicable. However, in the present

case, the prayer for declaration is not restricted to the

plaintiff’s undivided share. Hence, the plaintiff cannot rely

upon Section 6 (iv) (j), which is applicable to other

declarations.


8.    Therefore, in view of the substantial prayer clause ‘a’

for declaration of the entire sale deed, the valuation made as

per Section 6 (vii) of the Court Fees Act would not apply to

the substantive prayer of declaration and the plaintiff must

value the suit under Section 6 (iv) (ha). Hence, the impugned

order directing the plaintiff to value the suit under Section 6


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(iv) (ha) of the Court Fees Act would not warrant any

interference in this writ petition in the exercise of writ

jurisdiction under Article 227 of the Constitution of India.

There is no illegality or perversity in the reasons recorded in

the impugned order.


9.    The writ petition is therefore dismissed.


10.   It is clarified that in the event the plaintiff seeks any

prayer for the amendment of the plaint to amend the prayer

clause ‘a’ to restrict it to the extent of the plaintiff’s undivided

share, the plaintiff would be entitled to seek modification of

the impugned order for restricting the valuation as per the

amended prayer. If such an application is filed, the same

shall be decided in accordance with law by keeping in mind

the legal principles settled in the decision of this court in

Diamon Developers.



                                             [GAURI GODSE, J.]




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