IMPORTANT POINT
A suit for execution of deed re-conveyance is in effect a suit for specific performance of a promise or agreement-Suit is liable to be valued on the market value of consideration for the promise made
Court will be in position to declare a sale deed executed in such circumstances to be sham or nominal.

ORDER :

T.V. ANILKUMAR, J.

This is an unnumbered appeal posted by the Registry before us at the request made by the appellant-Bank for a decision on the question of adequacy of court fee payable by it in the appeal. The objection raided by the appellant is that it is not liable to pay court fee at the rate valued by the plaintiff in the suit before the court below.

2. The appellant is a third party to the suit and is aggrieved by the decree granted by the court below declaring Ext. A2 sale deed executed by the plaintiff in favour of the sole defendant in the suit as sham and void and directing the defendant to execute a deed of re-conveyance to the plaintiff in relation to the plaint schedule property and also to hand over possession thereof and also for consequential prohibitory injunction.

3. The suit was valued under sections 25(b) and 30 and 27(c) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, ‘the Act’) for the purpose of computation of court fee, adopting the market value of the property. It appears that being a multifarious suit, the court fee was computed on the aggregate value of all the aforesaid four reliefs.

4. The objection raised by the learned counsel for the appellant to the computation of the court fee is two fold viz.,

(1) The suit was valued for consequential reliefs also, though as a matter of law the fee was chargeable only for the main relief

and

(2) The proper court fee payable was only under section 40 of the Act and that too, on the value of property mentioned in Ext.A2 sale deed.

5. The reliefs mentioned in the suit are extracted below :

(a) pass a decree declaring that the sale deed bearing No. 53/2012 of SRO, Edappally is a sham and void document and not binding upon the plaintiff

(b) pass a decree in favour of the plaintiff permitting him to recover the possession of the plaint schedule property from the defendant.

(c) pass a decree directing the defendant to execute a deed of reconveyance in respect of the plaint schedule property in favour of plaintiff. Failing which the plaintiff may be permitted to get the reconveyance deed executed through process of court.

(d) pass a decree of permanent prohibitory injunction restraining the defendant, his men and agents from trespassing to the plaint schedule property.

6. On hearing the learned counsel for the appellant and having regard to the nature of the reliefs claimed, we accept his argument that plaint should have been chargeable with fee only on the main relief as others are only ancillary.

7. Though section 6 of the Act provides a general rule for levy of court fee on the aggregate value of the separate and distinct reliefs arising out of the same cause of action, under the proviso thereof, the plaint shall be chargeable only on the value of the main relief, if any other relief claimed is only ancillary to the main relief. The rationale for the proviso is that main relief embraces every relief for which the suit is laid before the court. An ancillary relief means a dependent or a mere consequential relief. It cannot survive without the main relief being granted in the suit. The real test to distinguish between an ancillary relief and a main relief is to see whether one could sustain without the other being granted. We hold, having regard to the nature of reliefs claimed, that court fee chargeable was only on the main relief claimed in the plaint.

8. It is next contended by the learned counsel for the appellant that even though relief (a) in the plaint happens to be in a declaratory form seeking Ext.A2 sale deed to be frowned upon as sham and void and also as not binding on the plaintiff, it has nevertheless the effect of seeking a cancellation of Ext.A2 sale deed. The gist of the learned counsel’s submission is that the plaintiff’s attempt in either way is to get rid of the sale deed which he admits to have executed. Once a decree declaring a document as void is secured, it would be practically a decree canceling the document also. It is, ther