Sheeba Kunnel Philip v. Moly Poulose and Others

_**O.P(C).275/17**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **OP(C) NO. 275 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OS 724/2015 OF I ADDITIONAL MUNSIFF COURT,ERNAKULAM** ## **PETITIONER/S:** SHEEBA KUNNEL PHILIP AGED 64 YEARS AGED 37 YEARS, W/O.BIJU,MATTAMMEL HOUSE, KANDANADU DESOM, KANDANAD PO,MANNAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682305, REPRESENTED IN THESE PROCEEDINGS BY HER FATHER AND POWER OF ATTORNEY K.P.PHILIPPOSE, AGED 64 YEARS,S/O.LATE PHILIPOSE, KUNNEL HOUSE, KUZHIMATTOM, KOTTAYAM. BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SEBASTIAN.K.J SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE ANTONY THARIAN ## **RESPONDENT/S:** 1 MOLY POULOSE AGED 47 YEARS AGED 60 YEARS, W/O.LATE JOHN PAUL,THUKALAN HOUSE, KANDANAD MURIYIL, KANDANAD PO,PRESENTLY RESIDING AT 320 MAIN STREET, NEW MILFORD, NEW JERSEY-07646, USA,REPRESENTED BY POWER OF ATTORNEY HOLDERSRI.V.J.JOSEPH, AGED 47 YEARS, S/O.LATE KOCHUPAPPU JOSEPH, VADACKAL HOUSE,THAIKATTUKARA PO, ALUVA, ERNAKULAM-683 106. 2 JOHN POULOSE AGED 47 YEARS AGED 30 YEARS, S/O.LATE JOHN PAUL,THUKALAN HOUSE, KANDANAD MURIYIL, KANDANAD PO, PRESENTLY RESIDING AT 320 MAIN STREET, NEW MILFORD, NEW JERSEY-07646, USA, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.V.J.JOSEPH, AGED 47 YEARS, _**O.P(C).275/17**_ 2 S/O.LATE KOCHUPAPPU JOSEPH, VADACKAL HOUSE, THAIKATTUKARA PO, ALUVA, ERNAKULAM-683 106. 3 MINU POULOSE AGED 47 YEARS AGED 32 YEARS, D/O.LATE JOHN PAUL,THUKALAN HOUSE, KANDANAD MURIYIL, KANDANAD PO, PRESENTLY RESIDING AT 320 MAIN STREET, NEW MILFORD, NEW JERSEY-07646, USA, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.V.J.JOSEPH, AGED 47 YEARS, S/O.LATE KOCHUPAPPU JOSEPH, VADACKAL HOUSE, THAIKATTUKARA PO, ALUVA, ERNAKULAM-683 106. 4 MERIN JOSEPH AGED 47 YEARS AGED 37 YEARS, D/O.LATE JOHN PAUL,THUKALAN HOUSE, KANDANAD MURIYIL, KANDANAD PO, PRESENTLY RESIDING AT 320 MAIN STREET, NEW MILFORD, NEW JERSEY-07646, USA, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.V.J.JOSEPH, AGED 47 YEARS, S/O.LATE KOCHUPAPPU JOSEPH, VADACKAL HOUSE, THAIKATTUKARA PO, ALUVA, ERNAKULAM-683 106. 5 THANKAMONY ELIZABETH POULOSE AGED 70 YEARS AGED 70 YEARS, W/O.P.K.POULOSE,APURVASREE APARTMENTS, FLAT 3A, NO.4,3RD CROSS BHOOPASANDRA MAIN ROAD,NEAR VIDHYANAGAR SCHOOL, SANJAY NAGAR,BANGALORE-560 094, 6 NIRMALA VARGHESE AGED 64 YEARS AGED 64 YEARS, W/O.K.K.VARGHESE, 134, KUMARANASAN NAGAR, KADAVANTHRA, COCHIN-682020. 7 KUNJAMMA ABRAHAM AGED 60 YEARS AGED 60 YEARS, W/O.ABRAHAM PAUL MATHEWS,XXXVI/904, INDIRA NAGAR, KALOOR,COCHIN-682017. 8 AYYAPPAN KUTTY AGED 62 YEARS AGED 62 YEARS, S/O.VELAYUDHAN,KUNNUMMEL HOUSE, DOOR NO.VII/326,CHOTTANIKKARA PANCHAYATH, THALACODE,CHOTTANIKKARA PO, ERNAKULAM-682 312. (DIED) ADDL. 9. SULOCHANA, AGED ABOUT 60 YEARS,W/O.LATE AYYAPANKUTTY, KUNNUMMEL HOUSE, DOOR NO.VII/326, CHOTTANIKKARA PANCHAYATH, THALACODE, CHOTTANIKKARA P.O., ERNAKULAM-682 312. ADDL.10. LATHA JAYAN, AGED ABOUT 35, D/O.LATE AYYAPANKUTTY, KUNNUMMEL HOUSE, DOOR NO.VII/326, CHOTTANIKKARA PANCHAYATH, _**O.P(C).275/17**_ 3 THALACODE, CHOTTANIKKARA P.O., ERNAKULAM-682 312. ADDL.11 STALIN KUMAR, AGED ABOUT 30, S/O.LATE AYYAPANKUTTY, KUNNUMMEL HOUSE, DOOR NO.VII/326, CHOTTANIKKARA PANCHAYATH, THALACODE, CHOTTANIKKARA P.O., ERNAKULAM-682 312. ADDL.12 LENIN, AGED ABOUT 28, S/O.LATE AYYAPANKUTTY, KUNNUMMEL HOUSE, DOOR NO.VII/326, CHOTTANIKKARA PANCHAYATH, THALACODE, CHOTTANIKKARA P.O., ERNAKULAM-682 312. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.SHIBU JOSEPH SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.P.VISWANATHAN SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.M.FAISAL KALAMASSERY SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SMT.AMRIN FATHIMA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON 20.05.2022 DELIVERED THE FOLLOWING: _**OP(C).275/17**_ 4 ## **V.G.ARUN, J.** **----------------------------------------------O.P(C).No. 275 of 2017 ----------------------------------------------Dated this the 20[th] day of May, 2022 JUDGMENT** The petitioner is the 5th defendant in O.S.No.724 of 2015 pending on the files of the First Additional Munsiff’s Court, Ernakulam. The facts leading up to the filing of the suit are as follows; The 1[st] plaintiff is the wife and plaintiffs 2 to 4 are the children of deceased John Paul. The plaintiffs were residing along with John Paul in the USA. While so, in the year 2003, John Paul returned to India and started residing at his native place. The plaintiffs continued to live in America and visited John Paul occasionally. John Paul, who was suffering from various ailments, succumbed to his illness on 4.8.2009. Little while later, defendants 1 to 3, who are his sisters, handed over a copy of the Will allegedly executed by deceased John Paul. As per the recitals in the Will, the deceased had bequeathed his immovable properties, including the property in Block 19, Re-survey 179/18 in Manakkunnam Village in Kanayannur _**OP(C).275/17**_ 5 Taluk, Ernakulam District, to defendants 1 to 3. John Paul would never execute such a document under his free and volition. From 2004 onwards, John Paul was under continuous treatment at the Ernakulam Medical Centre was rendered completely bedridden, over a period of time. Moreover, he was a chronic alcoholic and had undergone treatment for his debilitating physical and psychiatric conditions, including delirium and hepatic encephalopathy. John Paul’s altered mental status was exploited by his sisters and the Will obtained by fraud and misrepresentation. Hence, Will Deed No.158/2007 registered on 22.6.2007 at the Sub Registry, Tripunithura is null and void. The plaintiffs initially filed O.S.no.953 of 2010 before the Sub Court, Ernakulam seeking cancellation of Will Deed No.158/2007, for a decree allowing the plaintiffs to recover possession of the plaint schedule properties and permanent prohibitory injunction, restraining the defendants therein from trespassing upon and interfering with the plaintiffs’ peaceful possession and enjoyment of the property. During the course of trial in O.S.No.953 of 2010, the 1st plaintiff applied for encumbrance certificate with respect to the properties of her late husband and on obtaining the encumbrance certificate was surprised to find entry regarding Settlement Deed No.5247 of 2007 dated 10.11.2007 executed by John Paul in favour of the 3[rd] defendant, with _**OP(C).275/17**_ 6 respect to property having an extent of 16.50 Ares (40.770 cents) in Sy.No.179/18, Block No.19 in Manakkunnam Village. It was also revealed that, in turn, the 3[rd] defendant had executed Sale Deed No.4234/2008 dated 16.12.2008 of Tripunithura SRO in favour of the 4[th] defendant with respect to the property obtained under the settlement deed. Thereafter, the 4[th] defendant had executed Sale Deed No.1823/2010 dated 12.7.2010 in favour of the 5th defendant. Alleging that the 3[rd] defendant had obtained the settlement deed in her favour by fraud and coercion, capitalising the diminished mental capacity of John Paul, respondents 1 to 4 filed O.S.No.724 of 2015 before the First Additional Munsiff's Court, Ernakulam. The reliefs sought in the suit are to cancel Settlement Deed No.5247/2007 and consequentially Sale Deed Nos.4234/2008 and 1823/2010, of Tripunithura SRO, as null and void and not binding on the plaint schedule property or the plaintiffs and to recover possession of plaint schedule property on the strength of title and for injunction. 2. The petitioner/5[th] defendant filed written statement refuting the allegation of fraud and mental incapacity of deceased John Paul and contended that she and her husband had paid hard earned money to purchase the property from the 4th defendant with the hope of constructing a residential house therein. The 5[th] defendant also raised _**OP(C).275/17**_ 7 objection as to the valuation of the suit and filed a separate interlocutory application under Section 12(2) of the Kerala Court Fees and Suits Valuation Act, 1959. The relevant portion of the averments in that application is extracted hereunder for easy reference; “ _4, The present suit has to be valued under Section 40 of the Kerala Court Fees and Suits Valuation Act. Under Section 40, in a suit for cancellation of documents, fee shall be computed on the value of the subject matter of the suit. Such value is the money equivalent of the property sought to be recovered as on date of suit. In the present plaint, instead of showing the present market value, plaintiff has chosen to show the valuation shown in the 2007 Settlement Deed i.e., Rs.6,00,000/- whereas plaintiffs also seek cancellation of Sale Deeds of the year 2008 and 2010 and seek recovery of possession of the property which is now in the possession of the 5[th] defendant claiming under the 2010 Sale Deed. The valuation shown in the 2008 sale deed is Rs.9,40,000/-. In the 2010 Sale Deed, the market value shown is Rs.31,68,000/-. Present market value in the year 2015 is still higher._ _5. The suit is grossly undervalued. Plaintiff has to pay court fee on the market value of the property as on date of suit and not on the value shown in the 2007 Settlement Deed as has now been done. Plaintiffs' suit is liable to be rejected unless the suit is properly valued showing the market value as on date of suit and court fee paid thereon. In this context reference may please be made to the decisions of the Honourable High Court of Kerala reported in 2003(1) KLT 411; 1972 KLT 774 D.B.; 1964 KLT 895."_ _**OP(C).275/17**_ 8 The question of improper valuation of the suit raised in the application was considered by the trial court and rejected under Exhibit P8 order. Aggrieved, this original petition is filed. 3. Learned counsel for the petitioner contended that, since the composite relief of setting aside of three sale deeds is sought, the suit ought to have been valued on the basis of the value of the property given in the last document, _viz;_ Rs.31,68,000/-. On the other hand the value shown of Rs. 6 lakhs shown in the first document, _ie;_ the Settlement Deed in favour of the 3[rd] defendant, is taken for the purpose of court fees. According to the learned Counsel, the trial court committed a gross illegality in holding that, once the Settlement Deed is cancelled, the subsequent Sale Deeds will also get cancelled as a consequence. While holding so, the trial court failed to note that the petitioner being a bona fide purchaser for value in possession of the property, unless the sale deed in his favour is cancelled, the plaintiffs cannot recover possession of the property. The trial court went wrong in placing reliance on the decision of the Apex Court in **Satheedevi v. Prasanna** [2010 (2) KLT 642 (SC)], wherein the facts were entirely different. The other contention is that computation of court fees in a suit where the executant himself seeks cancellation of a sale deed and that is a suit where the third party seeks such relief, are different. To _**OP(C).275/17**_ 9 buttress his contentions, learned counsel placed reliance on the decisions of the Apex Court in **Suhrid Singh v. Randhir Singh and Others** [AIR 2010 SC 2807] and the decisions of this Court in **Appukuttan v. Kamalakshi** [1996 (2) KLJ 593] and **State Bank of India v. Niyas** [ILR 2021 (1) Ker.966]. 4. Learned counsel for the respondent contended that court fee is correctly paid under Section 40, computing the value of the property shown in the first document. The prayer for setting aside the subsequent documents being ancillary, no separate court fee is liable to be paid. Once the settlement deed is set aside, the subsequent documents will also be rendered invalid. In support of his contentions, learned counsel placed reliance on the decision in **Satheedevi** (supra). 5. In order to adjudicate the issue involved , it is necessary to have a careful scrutiny of Section 40 of the Court Fees Act, which is extracted hereunder; ## _"40._ _**Suits for cancellation of decrees etc.**_ _(1) In a suit for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be-_ _**OP(C).275/17**_ 10 _if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;_ _if a part of the decree or other document is sought to be cancelled such part of the amount or value of the property._ _(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less."_ From a plain reading of the Section it is clear that, as far as cancellation of documents is concerned, fee has to be computed on the value of the subject matter of the suit. If the whole document is sought to be cancelled, such value will be the amount or value of the property for which the document was executed. On the other hand, if only a part of the document is sought to be cancelled, such part of the value of the property alone need be taken. As three documents are sought to be cancelled in their entirety.in the case at hand, going by the plain reading of Section 40, value of the property as shown in the documents will have to be taken for the purpose of computing court fee. 6. To overcome this difficulty, it is contended that valuation need only be made as per the first document, since the relief of cancellation of subsequent document in ancillary in nature. In this regard, it is essential to understand the meaning of the term ‘ancillary relief’. For _**OP(C).275/17**_ 11 this purpose, reference is made to the decision in _**Niyas**_ (supra), wherein the Division Bench has explained the meaning of the term in the following words; “ _A dependent or a mere consequential relief. It cannot survive without the main relief being granted in the suit. The real test to distinguish between an ancillary relief and a main relief is to see whether one could sustain without the other being granted.”_ Applying the above test, the prayer for setting aside the subsequent Sale Deeds can never be termed as an ancillary relief, since that relief can be sustained even without the main relief being granted. 7. In _**Satheedevi**_ (supra) the Apex Court considered Section 40 of the Court Fees Act and held that, in a suit for cancellation of a document which creates any right, title or interest in immovable property, court fee is to be computed on the value of the property for which the document was executed and not on the market value of the property. The question as to how court fee is to be computed, when three separate documents are sought to be cancelled in one suit did not arise for consideration therein. As such, reliance could not have been placed on _**Satheedevi**_ (supra), to uphold the computation of court fee in the instant case. In _**Suhrid Singh**_ (supra), the difference in computation of court fee when the executant seeks cancellation of the deed and when such relief is sought by a non-executant is _**OP(C).275/17**_ 12 ## elaborately dealt with. The contextually relevant portion of that judgment is extracted hereunder; " _Where the executant of a deed wants it to be annulled, he 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 following 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 the 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 non est/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 court fee of Rs. 19.50 under Article 17(iii) of the 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."_ 8. Even though learned counsel for the respondent strongly contended that the above decision is rendered on an interpretation of the provisions of the Court Fees Act, 1870 as amended in Punjab, which is different from our Court Fees Act, in my considered opinion, the dictum laid down in _**Suhrid Singh**_ (supra) will apply to the case at hand also. Unfortunately, these crucial legal aspects were not brought _**OP(C).275/17**_ 13 to the notice of the learned Munsiff and therefore, not considered. Being so, the impugned order is liable to be set aside and the application under Section 12(2) of the Court Fees Act filed by the petitioner, considered afresh. In the result, the original petition is allowed. Exhibit P8 order is set aside. The First Additional Munsiff, Ernakulam is directed to reconsider I.A.No.366 of 2016 in O.S.No.724 of 2015 afresh, with specific reference to the precedents discussed above. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(C).275/17**_ 14 ## **APPENDIX OF OP(C) 275/2017** ## PETITIONER EXHIBITS P1 : TRUE COPY OF SETTLEMENT DEED BEARING NO.5247/2007 DATED 10-11-2007 OF THRIPPUNITHURA SRO. P2 : TRUE COPY OF SALE DEED BEARING NO.4234/2008 DATED 16-12-2008 OF SRO, THRIPPUNITHURA. P3 : TRUE COPY OF SALE DEED BEARING NO.1823/2010 DATED 12-7-2010 OF SRO, THRIPPUNITHURA. P4 : TRUE COPY OF THE PLAINT IN OS 724/2015 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM. P5 : TRUE COPY OF WRITTEN STATEMENT OF 4TH DEFENDANT IN OS 724/2015 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. P6 : TRUE COPY OF WRITTEN STATEMENT OF 5TH DEFENDANT IN OS 724/2015 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. P7 : TRUE COPY OF AFFIDAVIT AND PETITION IN IA 366/2016 IN OS 724/2015 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. P8 : TRUE COPY OF ORDER DATED 24-11-2016 IN IA 366/2016 IN OS 724/2015 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM.