Krishnaveni, Jaya and Sheela v. Balabhadran, T.V. MAMMU, Jayaprakash, District Collector, Palakkad and State of Kerala

**6** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** **OP(C) NO. 164 OF 2022** **AGAINST THE ORDER DT.26.09.2018 IN OS 29/2014 OF SUB COURT,** ## **OTTAPPALAM** ## **PETITIONERS/PLAINTIFFS 1 TO 3:** 1 KRISHNAVENI AGED 57 YEARS W/O.PRABHAKARAN, CHOORAKKODE VEEDU, P.O.NHANGATTIRI, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. 2 JAYA AGED 55 YEARS W/O.MOHANDAS, KUTTATHU VEEDU, P.O.EDAPPAL, MALAPPURAM DISTRICT - 679 576. 3 SHEELA AGED 53 YEARS W/O.VASUDEVAN, KARUVADIYIL VEEDU, P.O.PERUMUDIYUR, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. BY ADVS. P.JAYARAM GIGI PAPPACHAN ## **RESPONDENTS/DEFENDANTS & 4TH PLAINTIFF:** 1 BALABHADRAN AGED 63 YEARS S/O.LATE RAMAN, KARUVADIYIL VEEDU, P.O.PERUMUDIYUR, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. 2 T.V.MAMMU AGED 70 YEARS S/O.AYAMUNNI, THEKKATHUVALAPPIL VEEDU, P.O.PERUMUDIYUR, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. O.P(C).No.164/2022 2 3 JAYAPRAKASH AGED 47 YEARS S/O.LATE RAMAN, KARUVADIYIL VEEDU, P.O.PERUMUDIYUR, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. REPRESENTED BY POWER OF ATTORNEY HOLDER JALAJA, AGED 40 YEARS, W/O.JAYAPRAKASH, KARUVADIYIL VEEDU, P.O.PERUMUDIYUR, PATTAMBI TALUK, PALAKKAD DISTRICT - 679 303. 4 THE DISTRICT COLLECTOR CIVIL STATION, PALAKKAD - 678 001. 5 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TAX, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. SENIOR GOVERNMENT PLEADER SRI DENNY DEVASSY FOR R4 & R5 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD 02.02.2022, THE COURT ON 25.02.2022 DELIVERED THE FOLLOWING: _**“C.R”**_ O.P(C).No.164/2022 3 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C). No.164 of 2022_ ================================ _Dated this the 25[th] day of February, 2022_ ## _**J U D G M E N T**_ Plaintiffs 1 to 3 in O.S.No.29 of 2014 on the file of Sub Court, Ottappalam, have filed this Original Petition under Article 227 of the Constitution of India challenging order dated 26.09.2018 passed by the learned Sub Judge, Ottappalam in the suit, whereby the learned Sub Judge found that plaint A relief was not properly valued and proper court fee also was not paid. 2. Heard the learned counsel for the petitioners as well as the learned Government Pleader representing respondents 4 and 5. Respondents 1 to 3, though served with notice, did not appear. 3. The crux of the matter is that the plaintiffs herein filed Suit for declaration and partition of the plaint schedule properties. O.P(C).No.164/2022 4 The first prayer in the Suit is to declare that the plaint schedule properties covered by registered documents, viz., 1663/1978, 66/1979, 106/1979, 1059/1978 and 14/1987 were purchased by the earnings of Sri Raman (father), who is no more, for the benefit of all legal heirs of Raman. 4. The second prayer was for partition of the above items and allotment of 4/5 share of the plaintiffs out of the same. 5. In the Suit, the plaint B relief is valued at Rs.13 lakh on the assertion that the market value of the property comes to Rs.13 lakh. Out of which, Rs.10,40,000/- is valued for the purpose of payment of court fee towards 4/5 claimed by the plaintiffs and court fee for the same also was paid. Whereas, as regards to relief `A' is concerned, court fee was paid after valuing `A' relief for Rs.14,700/-, being the total consideration shown in the five documents, under Section 25 of the Court Fees and Suits Valuation Act. The learned Sub Judge found that since `B' relief is valued at Rs.13 lakh (the market value of the property), `A' O.P(C).No.164/2022 5 relief also to be valued at Rs.13 lakh as the said amount is the market value for valuing `A' relief, also. 6. The learned counsel for the petitioners would submit that there is no need to pay court fee based on the market value and the plaintiffs have to pay only fixed court fee in tune with the value shown in the documents. As such, the plaintiffs correctly valued `A' relief the amount in the Suit at Rs.14,700/- and court fee thereof was paid. Therefore, the learned Sub Judge went wrong in finding otherwise, as per the order impugned. The learned counsel for the petitioners highlighted a decision of the Apex Court reported in [AIR 2010 SC 2807], _**Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors**_ . In the said decision, the Apex Court carved out a difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance by illustrating 2 instances as extracted in para.6 of the above judgment. For clarity, I am inclined to extract para.6 as such: _"6. Where the executant of a deed wants it to be annulled, he_ O.P(C).No.164/2022 6 _has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the folowing illustration relating to `A' and `B' – two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of he deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court-fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If `B', who is a non executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed courtfee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court-fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court-fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."_ Apart from that, the learned counsel for the petitioners placed O.P(C).No.164/2022 7 decisions reported in [2012 (3) KLT 261], _**Usman Kurikkal v. Parappur Achuthan Nair**_ , to contend that non executant suing for a declaration that the deed is null or void and does not bind his share, need not pay advalorem court fee on the consideration fixed therein and the valuation shall be done under Section 25(d)(ii) of the Court Fees and Suits Valuation Act, 1959. In fact, Section 25(d)(ii) provides that in a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25(a) to (c), where the subject-matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher. In fact, Section 25(d)(ii) has no application to the present case, since the subject matter herein is capable of valuation as admitted by the plaintiffs by valuing `B' relief @ Rs.13 lakh as the market value of the property. 7. Another decision reported in [1986 KLT 794], _**Sankaran**_ _**v. Velukkutty**_ , has been placed to contend that in a suit for partition O.P(C).No.164/2022 8 with prayer for declaration that a settlement deed is invalid and not binding on the plaintiff or plaint schedule properties, separate court fee is not necessary for the said declaration. 8. In fact, the legal position as settled in _**Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors**_ . _**' case** (supra_ ) is not in dispute. Otherwise, it has to be held that if an executant of a deed seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed and if a non executant is in possession and seeks for a declaration that the deed is null or void and does not bind on him or his share, he has to merely pay a fixed court fee, as provided under the relevant provisions of the Court Fees and Suits Valuation Act. However, how far this ratio would apply to the facts of the case, required to be addressed. 9. In this case, the prayer (`A' relief), in fact, is at the instance of non executants of the documents. But, the petitioners, who are non executants of the documents not prayed for treating the documents as null or void or not binding on the plaintiffs or the O.P(C).No.164/2022 9 plaint schedule properties. Instead, a positive declaration had been canvassed in the suit to the effect that the above documents are to be treated as documents whereby Raman (now no more) had purchased the plaint schedule properties by spending his money for the benefit of all his legal-heirs (plaintiffs and defendants). The said plea is neither an anciliary relief nor a relief either to avoid or treat the above documents as null and void. To the contrary, no doubt, a positive relief of declaration with regard to the plaint schedule properties treating the same as one purchased by Raman for the benefit of all his legal-heirs has been prayed for. In such a Suit, no doubt, the court fee shall be paid on the market value of the property as provided under Section 25(d)(i) of the Court Fees and Suits Valuation Act, since in such cases, the said provision provides that where the subject matter of the Suit is capable of valuation, fee shall be computed on the market value of the property. Even as per Section 25(a) also, for a declaration and possession of the property to which the declaration relates, fee shall O.P(C).No.164/2022 10 be computed on the market value of the property or on rupees one thousand, whichever is higher, as stipulated in Section 25(b) of the Act. It is true that when the prayer is for declaration and for consequential injunction and relief sought for is with reference to an immovable property, fee shall be computed on one half market value of the property or on rupees one thousand, whichever is higher. Thus it appears that in the present case declaration sought cannot be held as one discussed in the decisions highlighted by the learned counsel for the petitioners and therefore, the petitioners are bound to pay court fee as mandated under Section 25(d)(i) of the Court Fees and Suits Valuation Act and therefore the learned Sub Judge is justified in passing the impugned order, finding so. 10. In view of the matter, this Original Petition fails and is accordingly dismissed. It is ordered that the plaintiffs shall pay the court fee in accordance with the impugned order within a period of 15 days from today and on failure to do so, the learned Sub Judge can reject O.P(C).No.164/2022 11 the Suit by invoking the power under Order 7 Rule 11(c) of the Code of Civil Procedure. Registry is directed to forward a copy of this judgment to the learned Sub Judge, Ottappalam for information and compliance within 7 days from today. ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ ## **APPENDIX OF OP(C) 164/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO.29/2014 ON THE FILES OF THE SUB COURT, OTTAPALAM. Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN OS NO.29/2014 ON THE FILES OF SUB COURT, OTTAPALAM. Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT IN OS NO.29/2014 ON THE FILES OF SUB COURT, OTTAPALAM. O.P(C).No.164/2022 12 Exhibit P4 TRUE COPY OF THE ORDER DATED 26/09/2018 IN OS NO.29/2014 ON THE FILES OF SUB COURT, OTTAPALAM.