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