OP(C) No.3019/2019; Sangeeth M.S & Vineeth M.S v. Sujatha, Vasanti, Vimala, Jyothi, Valsan, M.K. Yajithra & M.K. Rajeev

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2022-04-05
Court Decision / Holding: Original Petition dismissed.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

Sangeeth M.S
Vineeth M.S

Respondents

Sujatha
Vasanti
Vimala
Jyothi
Valsan
M.K. Yajithra
M.K. Rajeev

Legal Representation & Advocates

Counsels for Petitioners

• V.T. Madhavanunni
• Sri M. Vivek Rabindranath

Case Synopsis & Summary

This Original Petition (OP(C)) challenges an order passed in I.A.1298/2019 in O.S.488/2011 of the Additional Sub Court, Irinjalakuda. The plaintiffs in the partition suit moved to amend the valuation of the relief 'AA' to Rs.25,01,000 and to add a declaration that Thriprayar documents 1285/2011 and 1286/2011 are null and void and not binding on the plaint schedule property. The Munsiff initially allowed the amendment, treating the 'AA' relief as ancillary and thus not requiring a separate court fee. Petitioners (defendants 2 and 4) challenged this on the ground that aa relief is not purely incidental and should attract ad valorem court fee under Section 25(d)(1) of the Kerala Court Fees and Suits Valuation Act, relying on Shamsher Singh v. Rajinder Prashad. Respondents argued that the 'AA' relief is ancillary, and the court should not require a separate fee. The Kerala High Court analyzed authorities, including Sankaran v. Velukutty, which held that in partition suits, a prayer for declaration that a settlement deed is invalid is incidental, and no separate court fee should be paid. The court held Sankaran would apply here; thus the order permitting amendment was proper and did not require interference. Accordingly, the Original Petition was dismissed. The decision clarifies the boundary between main relief and incidental relief in partition suits and the corresponding court fee obligations.

Provisions of Law Cited

Order 6 Rule 17 of the Code of Civil ProcedureSection 25(d)(1) of the Kerala Court Fees and Suits Valuation Act

Legal Doctrines & Maxims

Ancillary relief is incidental to the main relief; no separate court fee payable.
Sankaran v. Velukutty doctrine: in partition suits, declaration that a settlement deed is invalid is incidental and does not require separate court fee.
Shamsher Singh v. Rajinder Prashad doctrine (cited) on ad valorem court fee in mortgage cases (cited but distinguished)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the amendment under I.A.1298/2019 to value the AA relief at Rs.25,01,000 and to declare two documents null and void is not purely incidental. They argued that determining and valuing the AA relief would require payment of ad valorem court fee under Section 25(d)(1). They relied on Shamsher Singh to support the proposition that the relief would attract ad valorem court fee. They argued the trial court erred in treating the AA relief as ancillary and incorrectly exempted it from a separate court fee requirement.

Contentions of Respondents

The respondents objected to treating the AA relief as ancillary, contending that it could not be considered incidental. They argued that the relief is a separate declaration that requires proper court fee and objected to the amendment on the grounds that it should not be classified as incidental.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sankaran v. Velukutty	1986 KLT 794	Positive	Cited as authority that the declaration that a settlement deed is invalid in a partition suit is incidental and does not require a separate court fee; the ratio applied in the present case.
Shamsher Singh v. Rajinder Prashad & Ors.	AIR 1973 SC 2384	Mentioned Only	Cited by petitioners for ad valorem court fee; court distinguishes and does not apply this ratio to the present partition-suit context.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **OP(C) NO. 3019 OF 2019** **(AGAINST THE ORDER DATED 06/11/2019 IN I.A 1298/2019 IN O.S** **488/2011 OF ADDITIONAL SUB COURT, IRINJALAKUDA)** ## **PETITIONERS:** **1 SANGEETH M.S, AGED 47 YEARS, S/O LATE M.R.SREENIVASAN, KOVIL THEKKE VALAPPIL HOUSE, HOUSE NO.IX/460, CHAMAKKALA P.O, CHENTHRAPINNI VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN CODE - 680 687. 2 VINEETH M.S, AGED 49 YEARS, S/O LATE M.R.SREENIVASAN, “SHREE NIVAS”, JOSEPH ROAD, CALICUT BEACH P.O, KACHERI VILLAGE, KOZHIKODE TALUK, KOZHIKODE CITY, PIN CODE - 673 032.** **BY ADVS. V.T.MADHAVANUNNI SRI.M.VIVEK RABINDRANATH** ## **RESPONDENTS:** - **1 SUJATHA, AGED 61 YEARS, W/O PALLATHUPARAMBIL SUDHAKARAN, NJARAKKAL VILLAGE, ERNAKULAM DISTRICT, PIN CODE - 682 505.** **2 VASANTHI, AGED 58 YEARS, W/O.LATE UNNIKOCHAN VEETTIL PRATHAPAN, ENGANDIYUR VILLAGE, THRISSUR DISTRICT, PIN CODE - 680 615.** - **3 VIMALA, AGED 56 YEARS, W/O.KAVUNGAL SUDHARSHAN, NJARAKKAL VILLAGE, ERNAKULAM DISTRICT, PIN CODE - 682 505.** O.P(C).No.3019/2019 2 - **4 JYOTHI,** **AGED 52 YEARS, W/O KIZHAKEVEETIL SOMAN, MUNAMBAM, PALLIPPURAM VILLAGE, ERNAKULAM DISTRICT, PIN CODE - 683 515.** - **5 VALSAN,** **AGED 54 YEARS, S/O PANAKKAL BALAKRISHNAN, NATTIKA VILLAGE, THRISSUR DISTRICT, PIN CODE - 680 566.** **6 M.K.YAJITHRA, AGED 50 YEARS, W/O.THAMPI, MUZHANGIL HOUSE, PERUMPADANNA, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN CODE - 683 513.** - **7 M.K. RAJEEV** **AGED 48 YEARS, S/O LATE KUNJUNNI, MADATHINGAL HOUSE, NEAR BAJANA MADAM, NEDUMPARAMBU, KOOLIMUTTAM, THRISSUR DISTRICT, PIN CODE-680691.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:** O.P(C).No.3019/2019 3 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P.(C) No.3019 of 2019_ ================================ _Dated this the 5[th] day of April, 2022_ ## _**J U D G M E N T**_ Defendants 2 and 4 in O.S.No.488/2011 on the file of Additional Sub Court, Irinjalakuda, are the petitioners herein and they impugn order dated 06.11.2019 in I.A.No.1298/2019 in the above case. Respondents herein are the plaintiffs and other defendants in the above case. 2. Though notice served upon the respondents, nobody appeared. 3. In a Suit filed for partition, I.A.No.1298/2019 was filed by the plaintiffs 1 to 4 in the Suit under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the valuation of `AA' relief at `Rs.25,01,000/-' and also to incorporate an O.P(C).No.3019/2019 4 amendment to the effect that since relief `AA' is ancillary, no separate court fee is required'. Earlier the court below allowed application for amendment and incorporated prayer `AA' for declaring that document Nos.1285/2011 and 1286/2011 of Thriprayar, S.R.O as null and void and the same shall not bind the plaintiff or the plaint schedule property and the same lack consideration. The respondents in the above I.A filed objection mainly contending that the relief sought for as `AA' could not be considered as an ancillary relief. However, the learned Munsiff relying on the decision reported in [1986 KLT 794], _**Sankaran v. Velukutty**_ , allowed the application holding that relief `AA' is ancillary in nature. 4. While assailing the said order, the learned counsel for the petitioners submitted that the court below went wrong in allowing the amendment treating `AA' relief as an ancillary one, thus court fee for the said relief shall be payable under Section O.P(C).No.3019/2019 5 25(d)(1) of the Kerala Court Fees and Suits Valuation Act. The learned counsel placed reliance on a decision reported in [AIR 1973 SC 2384], _**Shamsher Singh v. Rajinder Prashad & Ors.**_ According to the learned counsel for the petitioners, going by the ratio in the above decision, court fee for the amount of valuation shown as Rs.25,01,000/- shall be paid. In the above decision, the Apex Court considered a Suit filed by the son couched in declaratory form or in substance for setting aside decree and for consequential relief of injunction to a mortgage effected by the father and had held that court fee payable is advalorem court fee. 5. It is not in dispute that in _**Shamsher Singh v. Rajinder Prashad & Ors.**_ 's case ( _supra_ ), the Apex Court dealt with a case of mortgage, whereby the son sought the relief of declaraion that the mortgage executed by the father in respect of the joint family property was null and void for want of legal necessity and consideration. In the said case it was held so. Whereas in the O.P(C).No.3019/2019 6 present Suit, originally the Suit was filed for partition of the plaint schedule property. Subsequently, `AA' relief was incorporated to the effect that document Nos.1285/2011 and 1286/2011 would not bind the plaintiffs or the right of the plaintiffs over the plaint schedule property and to declare the same as null and void. In _**Sankaran v. Velukutty**_ 's case ( _supra_ ), this Court while delaing with a Suit for partition with prayer for declaration that a settlement deed is invalid and not binding on the plaintiff or the plaint schedule property, it was held that the prayer for declaraion of the settlement deed as invalid is only purely incidental and no separate court fee need be paid. 6. As far as the facts involved in this case is concerned, decision in _**Sankaran v. Velukutty**_ 's case ( _supra_ ) would squarely apply and the learned Munsiff rightly followed the said ratio and allowed I.A.No.1298/2019 and hence the order impugned does not require any interference at the hands of this Court. O.P(C).No.3019/2019 7 Therefore, the Original Petition fails and is accordingly dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.3019/2019 8 ## **APPENDIX OF OP(C) 3019/2019** ## **PETITIONERS’ EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.488/2011 PENDING BEFORE THE ADDITIONAL SUB COURT, IRINJALAKUDA.** **EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.3418/2015 FILED BY PETITIONERS IN O.S.NO.488/2011 BEFORE THE ADDITIONAL SUB COURT, IRINJALAKUDA DATED 23/11/2015.** **EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS IN I.A NO.3418/2015 IN OS.NO.488/2011 BEFORE THE ADDITIONAL SUB COURT, IRINJALAKUDA DATED 06/02/2016.** **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION OF I.A.NO.484/2017 FILED BY THE ABOVE PLAINTIFFS IN O.S.NO.488/2011 IN THE ADDITIONAL SUB COURT, IRINJALAKUDA DATED 17/02/2017.** **EXHIBIT P5** **EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE ABOVE PETITIONERS IN I.A.NO.484/2017 IN O.S.NO.488/2011 BEFORE THE ADDITIONAL SUB COURT, IRINJALAKUDA DATED 22/06/2017. EXHIBIT P6 TRUE COPY OF THE ORDER OF THE ADDITIONAL SUB COURT, IRINJALAKUDA IN I.A.NO.484/2017 DATED 06/11/2017.** O.P(C).No.3019/2019 9 |**EXHIBIT P7**|**TRUE COPY OF THE ORDER OF THIS**| |---|---| ||**HONOURABLE HIGH COURT IN O.P(C)409/2018**| ||**DATED 07/02/2019.**| |**EXHIBIT P8**|**TRUE COPY OF THE ORDER OF THE ADDITIONAL**| ||**SUB** **COURT,** **IRINJALAKUDA** **IN**| ||**I.A.NO.3418/2015 DATED 11/04/2019.**| |**EXHIBIT P9**|**TRUE COPY OF THE AFFIDAVIT AND PETITION**| ||**OF I.A.NO.1298/2019 FILED BY THE**| ||**PLAINTIFFS IN O.S.NO.488/2011 BEFORE THE**| ||**ADDITIONAL SUB COURT, IRINJALAKUDA DATED**| ||**20/5/2019.**| |**EXHIBIT P10**|**TRUE COPY OF THE COUNTER STATEMENT FILED**| ||**BY** **THE** **ABOVE** **PETITIONERS** **IN**| ||**I.A.NO.1298/2019** **IN** **O.S.NO.488/2011**| ||**BEFORE THE ADDITIONAL SUB COURT,**| ||**IRINJALAKUDA DATED 16/09/2019.**| |**EXHIBIT P11**|**CERTIFIED COPY OF THE ORDER OF THE**| ||**ADDITIONAL SUB COURT, IRINJALAKUDA IN**| ||**I.A.NO.1298/2019** **IN** **O.S.NO.488/2011**| ||**DATED 06/11/2019.**|