K.K. Vasanthakumary v. K.G. Chandrashekaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **OP(C).No.2434 OF 2014(O)** **AGAINST THE JUDGMENT IN O.S.NO.741/2011 OF I ADDITIONAL SUB COURT, THRISSUR** ## **PETITIONER:** **K.K.VASANTHAKUMARY, AGED 59 YEARS W/O. K.G.BALAKRISHNAN, KOSSERY HOUSE, CIVIL LANE ROAD, AYYANTHOLE P.O., THRISSUR-680 003, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, PANKAJAVALLY, W/O. K.G.RAGHUNANDANAN, KOSSERY HOUSE, PERUMBILAVU P.O., THRISSUR.** **BY ADVS. SRI.M.T.BALAN SRI.P.K.HASSANKUTTY SRI.B.JAYABAL SRI.VINAY RAMDAS** ## **RESPONDENT:** **K.G.CHANDRASHEKARAN AGED 62 YEARS S/O. LATE GANGADHARAN, KOSSERY HOUSE, KOORKANCHERY P.O., THRISSUR-680 007.** ## **R1 BY ADV. SRI.P.V.CHANDRAMOHAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-09-2020, THE COURT ON 24-09-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.2434/2014 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.2434 of 2014 -----------------------------------------------Dated this the 24[th] day of September, 2020 ## **J U D G M E N T** The petitioner is the defendant and the respondent is the plaintiff in the suit O.S.No.741/2011 on the file of the Additional Sub Court, Thrissur. 2. There are three reliefs claimed in the suit. They are: (1) A decree of declaration that the plaintiff has got 3/4 share and ownership over the plaint schedule property. (2) A decree for partition of the plaint schedule property by metes and bounds allotting 3/4 share in the property to the plaintiff. (3) A decree of prohibitory injunction restraining the defendant from making any alteration to the nature of the plaint schedule property and from alienating, encumbering or assigning the property. 3. The relief of declaration is valued in the plaint at Rs.1,00,000/- and the court fee thereon is shown as Rs.8,600/-. O.P.(C) No.2434/2014 3 The relief of partition is valued at Rs.3,30,00,000/- and the court fee thereon is shown as Rs.200/-. The relief of injunction is valued at Rs.500/- and the court fee thereon is shown as Rs.50/-. 4. The defendant filed Ext.P3 application in the trial court praying that the court may conduct an enquiry and direct the plaintiff to value the suit properly and to remit the requisite court fee and on his failure to do so, to reject the plaint. This prayer was made by the defendant contending that the valuation of the reliefs claimed in the suit is not correct. 5. As per Ext.P10 order, the trial court partly allowed Ext.P3 application stating as follows: _“The relief of declaration is valued under Section 25(ii)(d) of Kerala Court Fees and Suit Valuation Act. The relief of declaration is sought in respect of immovable property and the plaintiff shall pay court fee for declaration on one half of market value under Section 25(b) of the Act. Since relief of injunction is consequent to the relief of declaration no separate court fee is required for the same. Since it is not admitted in plaint that plaintiff is not in_ O.P.(C) No.2434/2014 4 _possession of the property, court fee paid for partition under Section 37(2) is correct._ _This I.A is allowed in part directing the plaintiff to pay court fee under Section 25(b) of the Kerala Court Fees and Suit Valuation Act for the relief of declaration.”_ 6. This original petition is filed by the defendant under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P10 order. 7. Heard learned counsel for the petitioner and also the respondent. 8. Section 7(1) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'the Act') states that, save as otherwise provided, where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. Section 7(4) of the Act states that, where the subject - matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or O.P.(C) No.2434/2014 5 fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property. 9. Section 25 (a) of the Act states that, in a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26 -- (a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on one - half of the market value of the property or on rupees one thousand, whichever is higher; and (b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher. Section 25(d) of the Act states that, in other cases, (i) where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and (ii) where the subject-matter of the suit is not capable of valuation, fee shall be computed on O.P.(C) No.2434/2014 6 the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher. 10. Section 37(1) of the Act provides that, in a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. Section 37(2) of the Act provides that, in a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the rates prescribed. 11. Here, it is asserted in the plaint that the plaintiff is in joint possession of the property which is sought to be partitioned. Therefore, court fee on the relief of partition has to be paid by the plaintiff only at the prescribed rate under Section 37(2) of the Act and not on the market value of the property (See **Victoria v. Yesuraj : 2017 (5) KHC 319** ). Therefore, the finding of the trial court that the plaintiff is required to pay the O.P.(C) No.2434/2014 7 court fee only at the fixed rate as provided under Section 37(2) of the Act is correct. 12. The relief of declaration is valued at Rs.1,00,000/- by the plaintiff under Section 25(d) of the Act. However, since the plaintiff had also sought a relief of injunction which is consequential to the relief of declaration, the trial court found that, on the relief of declaration, he has to pay court fee under Section 25(b) of the Act which shall be computed on one half of the market value of the property. 13. However, after the passing of Ext.P10 order, the plaintiff has filed Ext.P11 application for amendment of the plaint for deleting the relief of injunction prayed for by him. If the application for amendment is allowed, the direction made by the trial court that the plaintiff should pay court fee under Section 25(b) of the Act will not survive. If the amendment is allowed, the trial court has to decide the question of valuation of the suit afresh. 14. At this juncture it is also to be noted that, the relief of declaration, though sought to be valued under Section 25(d) of O.P.(C) No.2434/2014 8 the Act by the plaintiff, the valuation is shown as only Rs.1,00,000/-. This is presumably for the reason that, as per the averment in the plaint, the plaintiff had paid only Rs.1,00,000/towards the sale consideration of the property. The valuation of the relief of declaration made by the plaintiff at Rs.1,00,000/ignores the provision under Section 7(1) of the Act which provides that, where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. Even as per the averments in the plaint, the market value of the entire property would come to Rs.4,40,00,000/-. One of the main contentions raised by the defendant regarding the valuation of the suit is that, though the market value of the entire property is shown in the plaint as Rs.4,40,00,000/-, the plaintiff has valued the relief of declaration only at Rs.1,00,000/-. The trial court has not considered the merits of this contention raised by the defendant while passing Ext.P10 order. 15. In the above circumstances, it has become necessary to set aside Ext.P10 order and to direct the trial court to consider O.P.(C) No.2434/2014 9 Ext.P3 application afresh after the disposal of Ext.P11 application for amendment filed by the plaintiff for deleting the relief of injunction. 16. The court fee payable on a plaint is to be decided on the basis of the allegations and the prayer in the plaint. The question whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the court. The court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for (See **Shamsher Singh v. Rajinder Prashad : AIR 1973 SC 2384** ). 17. Consequently, the original petition is allowed and Ext.P10 order is set aside. The trial court shall consider and pass appropriate orders on Ext.P11 application for amendment filed by the plaintiff. Thereafter, the trial court shall consider and dispose of Ext.P3 application afresh and decide the question of valuation of the suit and the adequacy of the court fee paid, on the basis O.P.(C) No.2434/2014 10 of the allegations in the plaint and also on consideration of the contentions raised by the defendant. The parties shall appear before the trial court, through counsel, on 19.10.2020. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.2434/2014 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **P1 : COPY OF THE PLAINT DTD.4.6.2011 IN OS NO.741 OF 2011 ON THE FILE OF 1ST ADDITIONAL SUBORDINATE COURT, THRISSUR.** **EXHIBIT P2** **P2 : COPY OF THE WRITTEN STATEMENT DTD.7.1.2012.** **EXHIBIT P3 P3 : COPY OF THE IA NO.2406/2014 DTD.26.3.2014.** - **EXHIBIT P4 P4 : COPY OF THE SALE DEED NO.4330/1978 DTD.27.9.1978 OF TRICHUR, DTD.27.9.1978 OF TRICHUR, SRO.** - **EXHIBIT P5 P5 : COPY OF THE LAND TAX RECEIPTS OF FINANCIAL YEAR 2010-11 DTD.11.5.2010.** - **EXHIBIT P6** - **P6 : COPY OF THE LAND TAX RECEIPTS OF FINANCIAL YEAR 2011-2012 DTD.23.7.2011.** - **EXHIBIT P7** - **P7 : COPY OF THE LAND TAX RECEIPTS OF FINANCIAL YEAR 2013-14 DTD.3.5.2013.** - **EXHIBIT P8 P8 : COPY OF THE BUILDING TAX RECEIPTS FOR 2012-13 DTD.3.4.2012 AND 2013-14 DTD.2.4.2013.** - **EXHIBIT P9 P9 : COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE ARANATTUKARA VILLAGE OFFICER DTD.14.1.1997 FOR TEH PLAINT SCHEDULE PROPERTY.** - **EXHIBIT P10 P10: COPY OF THE ORDER DTD.13.8.2014 OF THE HON'BLE 1ST ADDL.SUB COURT, THRISSUR IN IA NO.2406/2014.** - **EXHIBIT P11 P11: COPY OF THE IA NO.4936/14 DTD.28.8.2014.** **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** PS TO JUDGE