A person not being a party to a document is not bound to sue for a declaration or cancellation of it, and can proceed on the assumption that there was no such document.

1. The question that arises for consideration is as to whether in a suit for partition separate court fee is necessary for the prayer for declaration that a settlement deed is invalid and not binding on the revision petitioner or the plaint schedule properties.

2. Revision petitioner (plaintiff) filed O. S.50/83 before the Munsiff Court, Wadakancherry praying for a declaration that settlement deed 1889/1964 of Mundoor Registry Office is invalid and not binding on him or the properties. Plaintiff also seeks partition and separate possession of 1/7th share in the plaint schedule properties. Court fee was paid under S.37(2) of the Kerala Court Fees Act. There is no dispute with regard to that. The dispute is with regard to the order of the court directing the plaintiff to pay court fee under S.25(d)(i) of the Kerala Court Fees Act. The learned Munsiff held that as far as the declaration prayer is concerned the subject matter of the suit is the plaint schedule property, which is capable of valuation and therefore the plaintiff is liable to pay court fees.

3. Averment in the plaint is to the effect that the settlement deed No. 1889/64 of Mundoor Registry Office is invalid and not binding upon the plaintiff or the properties as he is not a party to the aforesaid document. Contention of the plaintiff is that as he can very well ignore the same he is not at all liable to pay court fees merely because a declaration is prayed for in the plaint. It is contended that the declaration sought is really unnecessary and therefore he cannot be saddled with liability of payment of court fees.

4. Under S.25(d)(i) where the subject matter of the suit is capable of valuation, fee shall be computed on the market value of the property. S.25(d)(ii) postulates 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 three hundred, whichever is higher.

5. Counsel for the revision petitioner relied on the decision in AIR. 1957 AP. 955 (Y. G. Gurukul v. Y. Subrahmanyam) in support of his contentions. In the above decision it is held as follows:

"When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree.

In this case, the plaintiff could very well ignore the decree and ask for partition of the family properties on the basis of the non-existence of the decree. If he has asked for a declaration that the decree would not bind him, it was an unnecessary relief."

In AIR. 1940 Mad. 113 (Ramaswami v. Rangachariar) it has been held that the plaintiff who is not eo nomine a party to a suit or a document is not bound to sue for a declaration or cancellation of it. No doubt, revision petitioner has sought for a declaration that the document is invalid and not binding on him. In the suit for partition wherein he claims 1/7th share ignoring the document the prayer for declaration was really not necessary. Following ILR.1934 Cal. 329 it has been held in AIR. 1957 A.P. 955 that even if there is a prayer for declaration or cancellation it could be ignored and court fee need not be paid thereon. The above ruling squarely applies to the facts of the case in hand. It has to be held that even though there is a prayer for declaration that the settlement deed 1889/64 of the Mundoor Registry Office is invalid and not binding on the plaintiff or the plaint schedule properties he cannot be called upon to pay court fees under S.25(d)(i) of the Court Fees Act as it is purely incidental and unnecessary relief. As plaintiff is not a party to that document it is unnecessary for him to have the same annulled as be can very well ignore it. The position therefore is that even though revision petitioner has sought for declaration there is no necessity for him to pay separate court fees.

The order of the court below calling u