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
Rupees One Thousand whichever is higher.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.CHITAMBARESH
4TH DAY OF JULY 2012
WP(C).No. 19268 of 2010
USMAN KURIKKAL,
Vs
PARAPPUR ACHUTHAN NAIR,
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).
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
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
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
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
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
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.
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
Rupees One Thousand whichever is higher.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.CHITAMBARESH
4TH DAY OF JULY 2012
WP(C).No. 19268 of 2010
USMAN KURIKKAL,
Vs
PARAPPUR ACHUTHAN NAIR,
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).
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
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
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
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
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
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.
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