Roy Michael P.J. and others v. Poorva Realities Pvt. Ltd. and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 OP(C) NO. 2688 OF 2019 AGAINST THE ORDER DATED 25/09/2019 IN OS 1416/2018 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **PETITIONERS/PLAINTIFFS:** 1 ROY MICHAEL.P.J AGED 47 YEARS S/O.JACOB, PAZHAMPILLY (H), PADIVATTOM, PAVOOR ROAD, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, KOCHI-24. 2 C.A.JOSEPH AGED 74 YEARS S/O.AUGUSTINE, CHAKKALAKKAL HOUSE, 30/158, VAZHAKKALA SOUTH VILLAGE, VAZHAKKALA, KOCHI-30. 3 JOHNSON O.J., AGED 50 YEARS S/O.JOSEPH, OLATTUPRAM HOUSE, P.T.ROAD, THRIKKAKARA P.O., VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KOCHI-682021. 4 XAVIER, AGED 47 YEARS S/O.JOSEPH, OLATTUPRAM HOUSE, P.T.ROAD, THRIKKAKARA P.O., VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KOCHI-682021. 5 MICHAEL C.C., AGED 49 YEARS S/O.CHOURO, CHAKKALAKKAL HOUSE, CHEMBUMUKKU, KAKKANAD WEST P.O., KOCHI-682030. 6 DOMINIC SHAJI,S/O JOSEPH AGED 52 YEARS VETTEKKATE, CIVIL LINE ROAD, CHEMBUMUKKU, THRIKKAKARA P.O., KOCHI-682021. 7 GEORGE JOB K.A., AGED 50 YEARS S/O.ANTONY, KOLOTHUM VEEDU, BROTHERS ROAD, VAZHAKKALA, KOCHI-682030. ## **OP(C) NO. 2688 OF 2019 2** BY ADVS. M.S.UNNIKRISHNAN SRI.V.S.SREEJITH SRI.K.SUNIL SMT.A.G.NISHA SMT.M.ARDRA KRISHNAN SRI.CHRISTINE MATHEW SMT.SUSAN JACOB (S-3481) SMT.C.V.VEENA ## **RESPONDENTS/DEFENDANTS:** 1 POORVA REALITIES PVT.LTD. REPRESENTED BY ITS DIRECTOR, NANI R.CHOKSI, S/O.RUSI CHOKSI, 130/1, ALZUR ROAD, BANGALORE-560042, THROUGH ITS AUTHORIZED SIGNATORY SREEJITH LENIN DAS. 2 ST.MICHAEL'S CHURCH, CHEMBUMUKKU, KAKKANAD, REPRESENTED BY VICAR, KOCHI-682021. 3 FR.RONY JOSEPH, MANAKKAL VICAR, ST. AUGUSTINE'S CHURCH, MOOLAMPILLY, ERNAKULAM DISTRICT-682027. 4 JOSEPH AMMANCHERRY, S/O.SHOURI, AMMANCHERRY HOUSE, SREEKALA BYE LANE, VENNALA P.O., KOCHI-682028. 5 THOMAS P.V., S/O.VAKKACHAN, VETTIKKATTU HOUSE, PAREKKATTU TEMPLE ROAD, CHEMBUMUKKU, KOCHI-682021. 6 PARISH COUNCIL OF ST.MICHAEL'S CHURCH, REPRESENTED BY ITS SECRETARY, RAJU PALLAN, S/O.ALEXANDER, PALLATH HOUSE, THURUTHEPARAMBU ROAD, THRIKKAKARA P.O., KOCHI-21. 7 C.K.SATHEESH, AGED 45 YEARS S/O.KUNJUKUNJU, SKYLINE VILLA, SPRING FIELD, NHOM17, PADIVATTOM, EDAPPALLY P.O., KOCHI-24. ## **OP(C) NO. 2688 OF 2019 3** BY ADVS. SRI.JOLLY JOHN SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR SMT.LIZA MEGHAN CYRIAC SRI.P.O.ANTONY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 2688 OF 2019 4** ## **CR** ## **JUDGMENT** It is against the findings rendered by the trial court in Ext.P9 order, after the remand of the matter by this court, the plaintiffs/petitioners came up. The suit was admittedly instituted for cancellation of a sale deed executed in respect of an immovable property for an amount of Rs.8,55,00,000/- (Rupees Eight Crores Fifty Five Lakhs). But the plaint was valued for a lesser amount under Section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act (herein after referred to 'the Act'), presumably based on the decision rendered by this Court in **Usman Kurikkal v.** **Parappur Achuthan Nair [2012 (3) KLT 261].** Further **,** the plaint was ordered to be returned since the valuation of immovable property exceeds rupees ten lakhs, beyond the pecuniary jurisdiction of that court for proper presentation before the court having jurisdiction over the matter, under Ext.P9 order. 2. It is pertaining to the sale deed executed with ## **OP(C) NO. 2688 OF 2019 5** respect to a property held in trust for the parishioners. The plaintiffs do not have any case of entitlement of share or fractional interest over the property and as such the legal position settled by this court in **Usman Kurikkal** 's case (supra) may not have any application in the instant case. A suit either for cancellation of a deed of conveyance of immovable property held in trust or to set aside the same or for a declaration with respect to the title and nature of the property at the instance of beneficiaries would always stand governed by Section 28 of the Act and they are liable to pay court fee on the one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value on rupees one thousand. The beneficiary who came up with a suit in order to get any sale deed or deed of transfer or deed creating any right, title or interest over the property held in trust need not pay court fee for the amount of value incorporated under the document of transfer or based on the value of the property. The ## **OP(C) NO. 2688 OF 2019 6** maximum court fee that can be payable is rupees two hundred or on rupees one thousand. They are not bound to pay any larger sum by way of court fee since the matter would not come under the purview of either Section 25 or Section 40 of the Act. In fact, Section 28 of the Act is a special provision dealing with trust properties. It is really an exception to Section 40 of the Act. Section 40 would come into play only when there is a suit for setting aside or cancellation of any decree or document which operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property. The right, title or interest in money, movable or immovable property as made mentioned under that provision should always be read and understood in relation to an existing right, title or interest capable of severance and alienation. In the absence of any such right, title or interest capable of severance or alienation as in the case of a trust property, the parties would stand outside the purview of Section 40 of the Act. A suit relating to ## **OP(C) NO. 2688 OF 2019 7** trust property is an exception and would stand governed by Section 28 of the Act and not by Section 25 or 40 of the Act, though it involves cancellation of an unauthorized deed of conveyance. 3. It is a case wherein challenge was raised against the conveyance of immovable property alleged to have been held in trust for the parishioners **.** Necessarily, it is not Section 25(d)(ii) of the Act, which would govern the area, but Section 28 of the Act and a declaration sought by any of the beneficiaries, in whose benefit the property was held in trust, would stand governed by Section 28 of the Act, though the relief sought is for declaration or involves cancellation of such deeds. But, for the purpose of pecuniary jurisdiction, the valuation of the suit matter governs the area and if the valuation exceeds pecuniary jurisdiction of any court, necessarily, it has to be returned for proper presentation before the court having jurisdiction. The order of the trial court regarding payment of court fee and the finding that the suit ought to have **OP(C) NO. 2688 OF 2019 8** been valued under Section 40 of the Act for the purpose of payment of court fee is erroneous and hence cannot be sustained. Necessarily, there is no reason to interfere with the order directing return of the plaint. Hence, the original petition will stand dismissed. **==> picture [355 x 48] intentionally omitted <==** Sd/- **P.SOMARAJAN JUDGE** LEK ## **OP(C) NO. 2688 OF 2019 9** ## **APPENDIX OF OP(C) 2688/2019** PETITIONER'S EXHIBITS - EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.1416 OF 2018 ON THE FILES OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. - EXHIBIT P2 TRUE COPY OF INJUNCTION PETITION FILED AS I.A.NO.9274 OF 2018 IN O.S.NO.1416 OF 2018 ON THE FILES OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. - EXHIBIT P3 TRUE COPY OF I.A.NO.454 OF 2019 IN O.S.NO.1416 OF 2018 ON THE FILES OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. - EXHIBIT P4 TRUE COPY OF COUNTER AFFIDAVIT FILED BY PETITIONERS IN EXT.P3 PETITION. - EXHIBIT P5 TRUE COPY OF ORDER IN I.A.NO.454 OF 2019 IN O.S.NO.1416 OF 2018 ON THE FILES OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. |EXHIBIT P6|TRUE COPY OF PETITION FILED AS I.A.NO.2151| |---|---| ||OF 2019 IN O.S.NO.1416 OF 2018 ON THE| ||FILES OF 2ND ADDITIONAL MUNSIFF'S COURT,| ||ERNAKULAM.| |EXHIBIT P7|TRUE COMPUTER PRINTOUT ORDER DATED 4TH| ||APRIL 2019 IN O.P.(CIVIL) NO.1080 OF 2019| ||OF THIS HON'BLE COURT.| |EXHIBIT P8|TRUE COPY OF THE PETITION FILED AS| ||I.A.NO.3515 OF 2019 FOR CORRECTING THE| ||PROVISION IN RELIEF PORTION OF EXT.P1| ||PLAINT.| |EXHIBIT P9|TRUE COPY OF THE ORDER DATED 25TH| ||SEPTEMBER, 2019 IN I.A.NO.2151 OF 2019 IN| ||O.S.NO.1416 OF 2018 ON THE FILES OF 2ND| ||ADDITIONAL MUNSIFF'S COURT, ERNAKULAM.| ## **OP(C) NO. 2688 OF 2019 10** EXHIBIT P10 TRUE COPY OF SALE DEED NO.4072 OF 2006 OF S.R.O. THRIKKAKARA EXECUTED BY THE 2ND RESPONDENT. ## /TRUE COPY/ PS TO JUDGE