Non-executants in declaratory suits are permitted to value court fees under Section 24(d) of the Karnataka Act, distinct from executants governed by Section 38 regarding cancellation, affirming jurisdictional correctness.

ORDER :

1. This writ petition is filed challenging the order dated 14.09.2020 passed in O.S.No.1038/2017 by the Principal Civil Judge, Mangaluru, D.K.

2. Heard.

3. Sri.K.Ravishankar, learned counsel for the petitioners submits that the respondent No.1 filed a suit for partition and declaration that the sale deeds dated 16.11.2015 and 19.06.2017 are not binding on the plaintiff and does not affect the right, title and interest of the plaintiff in the suit schedule property. It is submitted that the respondent No.1 valued the suit for relief of partition at Rs.23/- for the purpose of Court fee and Rs.64,558/- for the purpose of jurisdiction and paid the Court fee of Rs.200/- as per Section 35 (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as 'the Act') and valued the suit for the relief of declaration at Rs.1,000/- and paid the Court fee of Rs.25/- as per Section 24 (d) of the Act, which are incorrect. The respondent No.1 is required to value the relief No.2 as per Section 38 of the Act and for the purpose of jurisdiction, it should be valued as per Section 50 of the Act.

4. It is further submitted that the Trial Court considered the additional issue of Court fee and jurisdiction as the preliminary issue and incorrectly came to the conclusion that the suit is valued correctly and it has the jurisdiction. It is also submitted that the petitioners are seeking declaration that two sale deeds executed by their mother do not bind them. In other words, they are seeking for cancellation of the sale deeds. Hence, Section 38 of the Act is applicable and the Court fee is required to be paid as per the market value and the suit cannot be valued as per Section 24 (d) of the Act. It is contended that the Trial Court has not considered the effect of Section 50 of the Act with regard to the jurisdiction as the respondent No.1 failed to value the suit as per Section 50 of the Act for the purpose of jurisdiction. It is further contended that if the Court fee is valued as per Section 38 of the Act, the respondent No.1 is liable to pay the Court fee as per the market value and the Court which is now trying the suit, would not have jurisdiction and the suit is required to be tried by the Senior Civil Judge. In support of his contentions, he placed reliance on the following decisions:

(1) Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and Others , (2010) 12 SCC 112

(2) Shivaram Bapuchand Shaha and Co. Vs. Hirachand Sakharam Mehata and Co. (1987) 3 Kar. L.J. 571

(3) Thibbaiah Vs. Desigowda , (1992) 3 Kar. L.J. 745

(4) Guruprasad and Others Vs. S.A. Rudraradhya and Others , (2010) 4 Kar. L.J. 102

5. He seeks to allow the petition by setting aside the impugned order and by directing the respondent No.1-plaintiff to value the Court fee as per Section 38 of the Act and pay the Court fee on the market value and value the Court fee as per Section 50 of the Act and hold that the Court of Principal Civil Judge, Mangaluru, has no jurisdiction to try the suit.

6. Per contra, Sri.S.Rajashekar, learned counsel appearing for the respondent No.1 supports the impugned order and submits that the Trial Court, has considered the fact that the respondent No.1 is a non-executant to the sale deeds against which declaration is sought in the plaint and held that the suit is rightly valued as well as that the Court has jurisdiction. It is submitted that the mother of respondent No.1 executed a General Power of Attorney (GPA) on 11.04.1996 and on the strength of the said GPA, sale deed dated 16.11.2015 was executed. However, the mothe