Usman Kurikkal v. Parappur Achuthan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934 WP(C).No. 19268 of 2010 (O) --------------------------OS.84/2006 of MUNSIFF MAGISTRATE COURT,PERINTHALMANNA PETITIONER(S): ------------- USMAN KURIKKAL, S/O.CHERIYA KUNHUMUTTY KURIKKAL HAJI KURIKKAL HOUSE, KARUVAMBRAM AMSOM, MELAKKAM DESOM, ERNAD TALUK. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN RESPONDENT(S): -------------- PARAPPUR ACHUTHAN NAIR, S/O.KUNHIMALU AMMA, NENMINI AMSOM THACHINGANADAM DESOM, PERINTHALMANNA TALUK BY ADV. SRI.P.SATHISAN BY ADV. SRI.C.K.ANWAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.19268 OF 2010 ## PETITIONER'S EXHIBITS: EXT.P1 DATED 3.5.2006, TRUE COPY OF THE SALE DEED NO.2009/2006, S.R.O., MELATTUR IN FAVOUR OF THE PETITIONER. - EXT.P2 DATED 14.7.2006, TRUE COPY OF THE PLAINT IN O.S.NO.84/2006 MUNSIFF MAGISTRATE'S COURT, PERINTHALMANNA. - EXT.P3 DATED 10-10-2008, TRUE COPY OF THE APPLICATION I.A.818/2008 IN O.S.NO.84 OF 2006, MUNSIFF MAGISTRATE'S COURT, PERINTHALMANNA. - EXT.P4 DATED 29.2.2010, TRUE COPY OF THE OBJECTION IN I.A.NO.818/2008 FILED BY THE RESPONDENT. - EXT.P5 DATED 14.6.2010, TRUE COPY OF THE ORDER IN I.A.818/2008 IN O.S.NO.84 OF 2006, MUNSIFF MAGISTRATE COURT, PERINTHALMANNA. ## RESPONDENTS EXHIBITS: EXT.R1(A) TRUE COPY OF THE JUDGMENT IN W.P.(C) No.32741 of 2009 DATED 16.11.2009. //TRUE COPY// P.S. TO JUDGE. **“C.R.”** ## **V.CHITAMBARESH, J.** ------------------------------- ## **W.P. (C) No. 19268 of 2010** ------------------------------- **Dated this the 4[th] day of July, 2012** ## **J U D G M E N T** Should a non-executant suing for a declaration that the deed is null or void and does not bind his share pay advalorem court fee on the consideration stated therein ? The answer emerges from the following discussion. 2. The suit is one for a decree of declaration that the plaintiff continues to be a Director in the Board of Management (the 'Board' for short) of a school. A decree of declaration that the sale deed executed by the Board in favour of the first defendant is not valid and binding on the plaintiff is also sought. There is a prayer for consequential injunction restraining the defendants from interfering with the right of the plaintiff as Director or injuring his rights in any manner. The plaintiff valued the relief at `.1000/- and paid court fee of `.40/- under Section 25(d)(ii) of the Court Fees and Suits Valuation Act, 1959 (Kerala) (hereinafter referred to as the 'Act' only). W.P.(C) No.19268 of 2010 2 3. The assignee first defendant contended that the subject matter of the suit is capable of valuation and court fee shall be computed on the market value of the property. It was pointed out that the sale deed executed by the Board in favour of the first defendant reflects a sale consideration of `.4 lakhs. It was asserted that the subject matter of the suit is capable of valuation and court fee has to be computed on the market value of `.4 lakhs. The first defendant in short maintained that court fee has to be paid under Section 25(d)(i) and not under Section 25(d)(ii) of the Act as was done. 4. The court below by the order impugned overruled the objection of the first defendant and held that the subject matter of the suit is not capable of valuation. The court below further found that the court fee computed on the amount at which the relief sought is valued in the plaint was proper. The finding of the court below is challenged by the first defendant in this original petition under Article 227 of the Constitution of W.P.(C) No.19268 of 2010 3 India. I have heard Mr.S.V.Balakrishna Iyer, Senior Advocate on behalf of the petitioner as well as Mr.P.Satheesan, Advocate on behalf of the respondent in extenso. ## 5. Section 25(d) of the Act reads as under:- **25. Suits for declaration -** In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26 - - (a) .......... - (b) .......... - (c) ........... - (d) in other words - - (i) where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and - (ii) 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. It may at once be noticed that the plaintiff is neither a party to the sale deed nor a party to the resolution empowering the Board to execute the sale deed. The prayer in the plaint is W.P.(C) No.19268 of 2010 4 essentially for a declaration that the sale deed is not valid and binding on the plaintiff. The plaintiff has not sought for a cancellation of the sale deed obviously because he was not an executant thereto. The plaintiff can very well ignore the sale deed and need not seek its annulment as has been held in **Sankaran v. Velukutty** (1986 KLT 794) 6. An identical question arose under the Court Fees Act, 1870 as amended in the State of Punjab in **Suhrid Singh alias Sardool Singh v. Randhir Singh and others** (2010 (12) SCC 112). Mr.Justice R.V.Raveendran speaking for the Bench in his inimitable style observed therein as follows: 7. Where the executant of a deed wants it to be anulled, 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 W.P.(C) No.19268 of 2010 5 wants to avoid the same. A has to be 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 be pay advalorem 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 advalorem court fee as provided under Section 7(iv)(c) of the Act.” (emphasis supplied) 7. The plaintiff who is a non-executant seeks to avoid the sale deed and has sued for a declaration that it is not valid and binding on him. Only a fixed court fee need be paid on the amount at which the relief sought is valued in the plaint or on W.P.(C) No.19268 of 2010 6 Rupees One Thousand whichever is higher. The first defendant has no case that the other declaration that the plaintiff continues to be a Director in the Board is capable of valuation. Therefore the valuation in the plaint and the court fee paid thereon under Section 25(d)(ii) of the Act is proper as has been found by the court below. 8. The first defendant relied on **Rajendran v. State of Kerala** (2003 (2) KLT 222) to contend that court fee has to be computed on the market value of the property even if the declaration is for avoidance. The said decision is clearly distinguishable in as much as the plaintiff therein was a participant in the auction which was sought to be declared as null and void. The first defendant has an alternate contention that the plaintiff would be bound by the decision for sale taken by the Board even though he was not eo-nominee a party to the resolution. How far the said resolution would bind the plaintiff is a matter to be considered in the suit after assessment of the W.P.(C) No.19268 of 2010 7 evidence. After all the valuation of the relief and the payment of court fee is governed by the averments in the plaint only as has been held time and again. The impugned order of the court below does not suffer from any infirmity in law. The original petition fails and is dismissed. No costs. **V.CHITAMBARESH, Judge.** nj.