USMAN KURIKKAL v. PARAPPUR ACHUTHAN NAIR

“C.R.” V.CHITAMBARESH, J.-------------------------------W.P. (C) No. 19268 of 2010-------------------------------Dated this the 4th day of July, 2012J U D G M E N TShould a non-executant suing for a declaration thatthe deed is null or void and does not bind his share payadvalorem court fee on the consideration stated therein ? Theanswer emerges from the following discussion. 2. The suit is one for a decree of declaration that theplaintiff continues to be a Director in the Board of Management(the 'Board' for short) of a school. A decree of declaration thatthe sale deed executed by the Board in favour of the firstdefendant is not valid and binding on the plaintiff is also sought.There is a prayer for consequential injunction restraining thedefendants from interfering with the right of the plaintiff asDirector or injuring his rights in any manner. The plaintiff valuedthe relief at `.1000/- and paid court fee of `.40/- under Section25(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 201023. The assignee first defendant contended that thesubject matter of the suit is capable of valuation and court feeshall be computed on the market value of the property. It waspointed out that the sale deed executed by the Board in favourof the first defendant reflects a sale consideration of `.4 lakhs.It was asserted that the subject matter of the suit is capable ofvaluation and court fee has to be computed on the market valueof `.4 lakhs. The first defendant in short maintained that courtfee has to be paid under Section 25(d)(i) and not under Section25(d)(ii) of the Act as was done. 4. The court below by the order impugned overruledthe objection of the first defendant and held that the subjectmatter of the suit is not capable of valuation. The court belowfurther found that the court fee computed on the amount atwhich the relief sought is valued in the plaint was proper. Thefinding of the court below is challenged by the first defendant inthis original petition under Article 227 of the Constitution of W.P.(C) No.19268 of 20103India. I have heard Mr.S.V.Balakrishna Iyer, Senior Advocate onbehalf of the petitioner as well as Mr.P.Satheesan, Advocate onbehalf of the respondent in extenso. 5. Section 25(d) of the Act reads as under:-25. Suits for declaration - In a suit for a declaratorydecree or order, whether with or without consequentialrelief, not falling under Section 26 - (a)..........(b)..........(c)...........(d)in other words -(i)where the subject-matter of the suit iscapable of valuation, fee shall be computedon the market value of the property, and (ii)where the subject-matter of the suit is notcapable of valuation, fee shall be computedon the amount at which the relief sought isvalued in the plaint or on (rupees onethousand), whichever is higher. It may at once be noticed that the plaintiff is neither a party tothe sale deed nor a party to the resolution empowering theBoard to execute the sale deed. The prayer in the plaint is W.P.(C) No.19268 of 20104essentially for a declaration that the sale deed is not valid andbinding on the plaintiff. The plaintiff has not sought for acancellation of the sale deed obviously because he was not anexecutant thereto. The plaintiff can very well ignore the saledeed and need not seek its annulment as has been held inSankaran v. Velukutty (1986 KLT 794)6. An identical question arose under the Court FeesAct, 1870 as amended in the State of Punjab in Suhrid Singhalias Sardool Singh v. Randhir Singh and others (2010 (12)SCC 112). Mr.Justice R.V.Raveendran speaking for the Bench inhis inimitable style observed therein as follows:7. Where the executant of a deed wants it to beanulled, he has to seek cancellation of the deed. But if anon-executant seeks annulment of a deed, he has to seeka declaration that the deed is invalid, or non est , or illegalor that it is not binding on him. The difference between aprayer for cancellation and declaration in regard to a deedof transfer/conveyance, can be brought out by thefollowing illustration relating to A and B, two brothers. Aexecutes a sale deed in favour of C. Subsequently A W.P.(C) No.19268 of 20105wants to avoid the same. A has to be sue for cancellationof the deed. On the other hand, if B, who is not theexecutant of the deed, wants to avoid it, he has to sue fora declaration that the deed executed by A is invalid/voidand non est/illegal and he is not bound by it. In essenceboth may be suing to have the deed set aside or declaredas non-binding. But the form is different and court fee isalso different. If A, the executant of the deed, seekscancellation of the deed, he has to be pay advaloremcourt fee on the consideration stated in the sale deed. IfB, who is a non-executant, is in possession and sues for adeclaration that the deed is null or void and does not bindhim or his share, he has to merely pay a fixed court fee ofRs.19.50 under Article 17 (iii) of the Second Schedule ofthe Act. But if B, a non-executant, is not in possession,and he seeks not only a declaration that the sale deed isinvalid, but also the consequential relief of possession, hehas to pay an advalorem court fee as provided underSection 7(iv)(c) of the Act.” (emphasis supplied)7. The plaintiff who is a non-executant seeks to avoidthe sale deed and has sued for a declaration that it is not validand binding on him. Only a fixed court fee need be paid on theamount at which the relief sought is valued in the plaint or on W.P.(C) No.19268 of 20106Rupees One Thousand whichever is higher. The first defendanthas no case that the other declaration that the plaintiff continuesto be a Director in the Board is capable of valuation. Thereforethe valuation in the plaint and the court fee paid thereon underSection 25(d)(ii) of the Act is proper as has been found by thecourt below. 8. The first defendant relied on Rajendran v. Stateof Kerala (2003 (2) KLT 222) to contend that court fee has tobe computed on the market value of the property even if thedeclaration is for avoidance. The said decision is clearlydistinguishable in as much as the plaintiff therein was aparticipant in the auction which was sought to be declared asnull and void. The first defendant has an alternate contentionthat the plaintiff would be bound by the decision for sale takenby the Board even though he was not eo-nominee a party to theresolution. How far the said resolution would bind the plaintiffis a matter to be considered in the suit after assessment of the W.P.(C) No.19268 of 20107evidence. After all the valuation of the relief and the payment ofcourt fee is governed by the averments in the plaint only as hasbeen held time and again. The impugned order of the court below does notsuffer from any infirmity in law. The original petition fails and isdismissed. No costs. V.CHITAMBARESH,Judge. nj.