Varghese v. Mathai, Jilsi and Jineesh

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **OP(C).No.2139 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 230/2015 OF PRINCIPAL SUB COURT,THRISSUR** ## **PETITIONER/S:** **VARGHESE AGED 50 YEARS** **S/O MADATHUMPIDY PHILIPOSE, MADATHUMPIDY HOUSE, PULLANIKKAD DESOM, MADAKKATHARA VILLAGE, THRISSUR-680654.** **BY ADVS.** **SRI.G.UNNIKRISHNAN SRI.M.JAYAKRISHNAN** ## **RESPONDENT/S:** - **1 MATHAI S/O MADATHUMPIDY PHILIPOSE, MADATHUMPIDY HOUSE, PULLANIKKAD DESOM, VELLANIKKARA P.O., THRISSUR680654.** - **2 JILSI W/O. JINU, NJATTINKARA HOUSE, KADAYIRUPUR P.O., VIA KOLENCHERY, ERNAKULAM DISTRICT-682311.** - **3 JINEESH S/O. KURIAN, MADATHUMPIDY HOUSE, PULLANIKKAD DESOM, VELLANIKKARA P.O., THRISSUR-680654.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. OP(C) 2139/18** -2- ## **JUDGMENT** The petitioner is the plaintiff in O.S. No.230 of 2015 on the files of the Principal Sub Court, Thrissur. The suit was for partition by _metes and bounds_ of the property belonging to the father of the plaintiff and the first defendant and the grandfather of defendant Nos.2 and 3 and for declaration that the two settlement deeds executed by the father of the petitioner were invalid and not binding on the plaintiff and on the plaint schedule property. On the strength of the said contentions in the plaint, the plaintiff paid a court fee under Section 37(2) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'the Act'). Thereafter, the court below considered the question as a preliminary issue and directed the petitioner to pay court ## **Case No. OP(C) 2139/18** -3- fee under Section 25(d)(i) of the Act, holding that the prayer for declaration is not an ancillary prayer, against which this Original Petition has been filed. 2. Service is complete. However, there is no appearance for the respondents. 3. Heard the learned counsel for the petitioner. 4. The only dispute in this case is with regard to the order of the court below directing the petitioner to pay the court fee under Section 25(d)(i) of the Act. It is contended by the plaintiff that the court is bound to go through the contentions in the plaint alone for the purpose of deciding the court fee. It is contended in the plaint that the settlement deed Nos.5053 of 2007 and 5054 of 2007 of the SRO, Ollukkara are invalid and not binding upon the **Case No. OP(C) 2139/18** plaintiff or the properties as he was not a party to the aforesaid documents. 5. The learned counsel for the petitioner has submitted that the petitioner can very well ignore the above said documents being invalid and hence he is not at all liable to pay the court fee merely because a declaration is prayed for in the plaint. It is contended that the declaration was really unnecessary and therefore, he cannot be saddled with the liability of payment of court fee. The learned counsel relied on the decision of this Court in Sankaran v. Velukutty (1986 KHC 196) to buttress his submission. 6. Under Section 25(d)(i) of the Act, where the subject-matter of the suit is capable of valuation, fee shall **Case No. OP(C) 2139/18** be computed on the market value of the property. Section 25(d)(ii) of the Act provides that 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. 7. The court below was of the view that since the father of the petitioner executed the settlement deeds referred to in the plaint, the petitioner cannot be heard to say that he was not a party to the settlement deeds. In Sankaran (supra), this court relied on the decisions of various High Courts and held that even though there is a prayer for declaration that the settlement deed was invalid and not binding on the plaintiff or the plaint schedule **Case No. OP(C) 2139/18** -6- properties, the plaintiff cannot be called upon to pay the court fees under Section 25(d)(i) of the Act as it is purely an incidental and unnecessary relief. It was further held in the above said decision that as the plaintiff was not a party to the document, it was unnecessary for him to have the same annulled as he could very well ignore it. Only a person having ownership over a property can execute a settlement deed in respect of that property. A person who would have inherited the property in the absence of any settlement deed can very well challenge the settlement deed contending that the said settlement is invalid and hence not binding on him or the properties. The predecessor-ininterest of the property can be the father, mother, brother or some other relative of the person, from whom the property can be inherited. In such a situation, if a settlement deed is ## **Case No. OP(C) 2139/18** -7- executed by the predecessor-in-interest of the property and the person who would have otherwise inherited the property contends that the said deed is invalid as it was executed by fraud or under influence or due to some other extraneous circumstance, it cannot be said that since the person who executed the document was the predecessor-ininterest of the person challenging the settlement deed, that person was a party to that document. If that be so, in this case, it cannot be said that the petitioner was a party to the gift deeds which were executed by his father. Since the petitioner was not a party to the said documents, it was unnecessary for him to have the said documents annulled as he can very well ignore it. This being the position, even though the petitioner had sought for declaration, there is no necessity for him to pay ## **Case No. OP(C) 2139/18** -8- separate court fee. In view of the above, the order of the court below directing the petitioner to pay court fee under Section 25(d)(i) of the Act stands set aside and it is held that there is no necessity for the petitioner to pay the court fee under Section 25(d)(i) of the Act. In the result, this Original Petition stands allowed. **sd** **B. SUDHEENDRA KUMAR, JUDGE** . dl/ **Case No. OP(C) 2139/18** -9- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S 230/2015 OF THE SUB COURT, THRISSUR** **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN O.S 230/2015 OF THE SUB COURT, THRISSUR** **EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED NO. 5053/2007 OF THE SRO OLLUKKARA** **EXHIBIT P4 TRUE COPY OF SETTLEMENT DEED NO.5054/07 OF THE S.R.O.OLLUKKARA.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 28.7.18 IN O.S.230/15 OF THE SUB COURT THRISSUR.** **RESPONDENT'S/S EXHIBITS: NIL**