Thursday 26 January 2017

What court fees will be required to be paid if non-executant is seeking declaration that sale deed is not binding on him?

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.

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