Lalitha B. Menon v. Ravikumar and Sasikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **TUESDAY, THE 21ST DAY OF MAY 2013/31ST VAISAKHA 1935** **OP(C).No. 619 of 2013 (O)** **-------------------------OS 37/2010 of PRINCIPAL SUB COURT,KOLLAM-I** **PETITIONER(S):** - **-------------** **LALITHA B.MENON, AGED 56 YEARS D/O. LATE N.KRISHNAPILLAI, THITTAVILA, DECENT JUNCTION, KOLLAM.** **BY ADV. SRI.K.SUBASH CHANDRA BOSE** **RESPONDENT(S):** - **------------** **1. RAVIKUMAR** - **RESIDING AT THIRUVATHIRA, DECENT JUNCTION, KOLLAM - 691520** **2. SASIKUMAR,DOCTOR'S QUARTERS, SABARAGIRI HOSPITAL, ANCHAL P.O. KOLLAM - 691528** **BY ADV. SRI.BECHU KURIAN THOMAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **OP(C).No. 619 of 2013 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE PLAINT IN O.S.NO.37/2010 OF THE SUB COURT, KOLLAM, DT 14/1/2010.** - **P2: COPY OF THE WRITTEN STQTEMENT IN O.S. NO.37/2010 OF SUB COURT, KOLLAM DT 16/7/2010.** - **P3: COPY OF THE ORDER IN O.S. NO.37/2010 OF SUB COURT, KOLLAM DT 23/11/2012** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **P.N.RAVINDRAN, J.** ## **---------------------------** ## **O.P.(C) No.619 OF 2013** ## **-------------------------Dated this the 21[st] day of May, 2013** ## **J U D G M E N T** The second defendant in O.S.No.37 of 2010 on the file of the Court of the Subordinate Judge of Kollam has filed this original petition challenging the order dated 23.11.2012 passed by the court below overruling the preliminary objection raised by her as regards the valuation of the plaint schedule property and the adequacy of court fee paid on the plaint. The respondents are the plaintiffs in the suit. In O.S.No.37 of 2010, the respondents have prayed for the following reliefs:- - _"(a) declaring that late P. Karthyayani Amma had no legal right and not competent to transfer title of entire properties owned by late N. Krishna Pillai covered under Will No.105/93 of Sub Registrar's office, Kollam;_ - _(b) declaring that later P.Karthyayani Amma had only 1/16th share over the ancestral properties covered under the Will No.6 dated 13/Chingam/1114 executed by father of late P.Karthyayani Amma, Sri.Krishna Pillai;_ - _(c) declaring that Will No. 133/05 of Sub Registrar's office, Kollam executed by late P.Karthyayani Amma is null and void abinitio;_ - _(d) declaring that late P.Karthyayani Amma is only authorised to administer the properties covered under the Will No.105/93 of Sub Registrar's office,_ OP(C) No.619/2013 2 _Kollam and that she had no absolute, valid, clear and marketable title over the properties covered under the Will No.105/93 of Sub Registrar's office, Kollam;_ - _(e) declaring that Sale deed No.2573/02 dated 12.7.02 of Sub Registrar's office, Kannanalloor is invalid, null and void and not binding on the plaintiffs;_ - _(f) declaring that sale deed No.3485/02 dated 19.9.02 of Sub Registrar's office, Kannanalloor is invalid, null and void and not binding on the plaintiffs;_ - _(g) declaring that settlement deed No.3486/02 dated 19.9.02 of Sub Registrar's office, Kannanalloor is invalid, null and void and not binding on the plaintiffs;_ - _(h) declaring that sale deed No.1369/05 dated 31.3.05 of Sub Registrar's office, Kannanalloor is invalid, null and void and not binding on the plaintiffs;_ - _(i) declaring that plaintiffs and defendants 1 to 12 and defendants 13 and 14 jointly are entitled to get 1/15 share each on all properties covered under the Will No.105/93 of Sub Registrar's office, Kollam executed by late N. Krishna Pillai and all the ancestral properties of late P. Karthyayani Amma;_ - _(j) directing partition by metes and bounds of plaint A and B Schedule properties and allotting 1/15th share for each of the plaintiffs by actual division and recovery of possession to the respective share of properties of the plaintiffs;_ - _(k) of permanent injunction restraining the defendants from alienating plaint A and B Schedule properties and from inducting strangers to the plaint A and B schedule properties;_ - _(l) allowing the plaintiffs to realise the costs of the suit from the defendants and their_ OP(C) No.619/2013 3 _assets;_ - _(m) granting such other relief or reliefs which are deemed just and necessary in the nature and circumstances of this case."_ 2. They have averred that reliefs (a) to (i) are not capable of valuation and therefore, each of the said reliefs is valued at Rs.1,000/under section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act, 1959 and for each of the said reliefs, a court fee of Rs.40/- is paid. Relief (j) is valued at Rs.1,39,934/- under section 37(1) of the Kerala Court Fees and Suits Valuation Act, 1959 and a court fee of Rs.13,000/- is paid. Relief (k) is valued at Rs.1,000/- under section 27 (c) of the Kerala Court Fees and Suits Valuation Act, 1959 and a court fee of Rs.40/- is paid. Except the second defendant, none of the other defendants raised any objection to the valuation of the reliefs or the adequacy of the court fee paid on the plaint. The second defendant did not however dispute the valuation of reliefs (j) and (k) and the adequacy of the court fee paid for the said reliefs. 3. The principal contention raised by the petitioner before the trial court was that as the immovable properties which are the subject matter of the wills/settlement deeds/sale deeds are capable of valuation, court fee should have been paid under section 25(a) of the Kerala Court Fees and Suits Valuation Act, 1959. The second petitioner contended that the suit should have been valued as provided under OP(C) No.619/2013 4 section 25(a) of the Kerala Court Fees and Suits Valuation Act, 1959 read with section 40 thereof. The trial court considered the objections raised by the petitioner and held relying on the decision of a learned single Judge of this Court in **Usman Kurikkal v. Parappur Achuthan** **Nair** (2012 (3) KLT 261) that a non-executant suing for declaration that the deed is null and void and does not bind his share, need not pay advalorem court fee on the consideration stated therein and that the relief has to be valued as per section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act, 1959. The trial court accordingly held that the plaintiff has correctly valued the suit and that the court fee paid is adequate. 4. I heard Sri.K.Subhashchandra Bose, learned counsel appearing for the petitioner and Sri.Bechu Kurian Thomas, learned counsel appearing for the respondents/plaintiffs. Shorn of details, the main contention raised by the learned counsel for the petitioner is that as the relief sought in prayers (a) to (i) is for a declaration that the documents referred to in the said reliefs are invalid, null and void and not binding on the plaintiffs, the plaintiffs ought to have paid court fee on the market value of the property in terms of the provisions contained in section 25(b) read with section 25(d)(i) of the Kerala Court Fees and Suits Valuation Act, 1959. The learned counsel also OP(C) No.619/2013 5 placed reliance on the decision of a Full Bench of this Court in **Pankajaksha Kurup v. Fathima** (1998 (1) KLT 668) and the decision of the Apex Court in **Suhrid Singh v. Randhir Singh & others** [(2010) 12 SCC 112), more particularly paragraph 7 thereof. Per contra, Sri.Bechu Kurian Thomas, learned counsel appearing for the respondents/plaintiffs contended relying on the decision of a learned single Judge of this Court in **Sankaran v. Velukutty** (1986 KLT 794) that as the plaintiffs are not parties to the deeds/documents mentioned in reliefs (a) to (i), it is unnecessary for them to have the same annulled, that they can ignore it and sue for partition and separate possession of their share over the immovable properties. The learned counsel appearing for the respondents/plaintiffs also contended that the valuation for the purpose of reliefs (j) and (k) is not challenged and therefore, the order passed by the court below does not merit interference. 5. I have considered the submissions made at the Bar by the learned counsel on both sides. I have also gone through the pleadings and the materials on record. The plaintiffs have in prayers (a) to (i) of the plaint sought various declarations, all in relation to deeds/documents to which they are not parties. They have also prayed for partition and separate possession of their 1/15 share in the OP(C) No.619/2013 6 plaint A and B schedule properties. They have also prayed for a permanent prohibitory injunction restraining the defendants from alienating plaint A and B schedule properties and from inducting strangers therein. As stated earlier, valuation of the aforesaid reliefs is not in dispute. The plaintiffs have averred that they and defendants 1 to 12 are the children of late N.Krishna Pillai and late P.Karthyayani Amma. They have also averred that defendants 13 and 14 are the wife and daughter of late T.K.Sreekumar, yet another son of late N.Krishna Pillai and late P.Karthyayani Amma. Shorn of details, the contention raised by the plaintiffs in the plaint is that though late N.Krishna Pillai had executed a will dated 4.8.1991, late P.Karthyayani Amma, mother of plaintiffs and defendants 1 to 12, did not derive absolute title over the properties covered by the will. The plaintiffs have also questioned the competence of the mother to execute Will No.133 of 2005. The plaintiffs have also challenged three sale deeds and a settlement deed executed by her. The second defendant/petitioner has no case that the plaintiffs are parties to the said documents. In **Sankaran v. Velukutty** (1986 KLT 794), a learned single Judge of this Court considered an identical question and held that in a suit for partition with a prayer for declaration that the settlement deed is invalid and not binding on the plaintiff, the plaintiff OP(C) No.619/2013 7 need not pay separate court fee for the relief of declaration sought by him. It was held that as the plaintiff is not a party to the document even though there is a prayer for a declaration that the settlement deed is invalid and not binding on the plaintiff or the plaint schedule property, he need not pay separate court fee under the Kerala Court Fees and Suits Valuation Act, 1956 and it is purely an incidental and ancillary relief. This Court also held that as the plaintiff is not a party to the document, it is unnecessary for him to have the same annulled as he can very well ignore it. The same view was reiterated by another learned single Judge of this Court in **Usman Kurikkal v. Parappur Achuthan Nair** (2012 (3) KLT 261). Though the learned counsel appearing for the petitioner contended relying on the decision of the Apex Court in **Suhrid Singh v. Randhir Singh** (2010 (12) SCC 112) and the decision of the Full Bench of this Court in **Pankajaksha Kurup v. Fathima** (1998 (1) KLT 668) that the subject matter of the suit property is capable of valuation and therefore court fee should be paid on the market value, I find no merit or force in the said contention. The issue that arose before the Full Bench in **Pankajaksha Kurup v. Fathima** (1998 (1) KLT 668) was whether in a suit where the decree in an earlier suit is sought to be declared as null and void, court fee has to be paid on the market value of the suit OP(C) No.619/2013 8 property. The contention raised was that the decree in the earlier suit was obtained when the plaintiff therein was a lunatic without a guardian being appointed and therefore it is null and void. The Full Bench held that on the relief of declaration court fee has to be paid under section 25(b) of the Act. In the case before the Full Bench, the plaintiff who had sought the declaration that the decree in the earlier suit is a nullity was a party to the earlier suit. In the case before the Apex Court the question raised was whether court fee is payable for the relief of declaration by a person who is not a party to the document. The Apex Court answered the question in favour of the plaintiff and held that if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid or non est and when the executant wants it to be annulled, he has to seek cancellation of the deed. It was held that if the executant seeks cancellation of the deed, he has to pay ad valorem court fee, but if a non-executant in possession 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 court fee. The Apex Court held that if the non-executant is not in possession and seeks a declaration that the sale deed is invalid and also the consequential relief of possession, he has to pay ad valorem court fee as provided under section 7(iv)(c) of the Court Fees Act, OP(C) No.619/2013 9 1870. In the instant case, as stated earlier, the plaintiffs have paid court fee for the relief of partition in terms of section 37(1) of the Kerala Court Fees and Suits Valuation Act, 1959. They have also paid separate court fee for the relief of permanent prohibitory injunction. In such circumstances, as the plaintiffs are not parties to the documents/deeds in respect of which the declarations are sought, I am of the opinion that the plaintiffs are not bound to pay court fee on the market value of the property covered by the deeds/documents. I accordingly hold that there is no merit in the original petition. The original petition fails and is dismissed. No costs. ## **P.N.RAVINDRAN, (JUDGE)** vpv/vps OP(C) No.619/2013 10 OP(C) No.619/2013 11