A person who is not a party to the impugned Gift Deed need not seek for cancellation and could effectively prosecute the suit filed for declaration that the Gift Deed is not valid and binding.

The parties in this petition are parties to the suit

in O.S. No.35/2014 on the file of the I Additional Senior

Civil Judge, Ballari [for short, ‘the civil Court’]. The first

respondent has commenced this suit for declaration

that the Gift Deed dated 7.5.2009 executed by his

mother [the second defendant – the petitioner herein] in

favour of her another son, the first defendant – the

second respondent, is null and void and not binding on

him and for consequential reliefs.

2.

The first respondent has asserted that the

subject property was purchased in the name of the

mother from the joint family funds under the sale deed

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dated 13.11.1958 and after the demise of the father,

there is an oral partition amongst the family members

viz., the parties to the aforesaid suit and in such

partition, the property is allotted to him and therefore

the mother could not have executed the impugned gift

deed in favour of the other son. The first respondent,

the other son, has contested the suit disputing the

assertions as regards the oral partition and contending

that the mother being the absolute owner of the subject

property has validly transferred the title thereto under

the Gift Deed dated 7.5.2009.

3.

The civil Court in the light of the rival pleas

has framed different Issues including Issue No.6 which

relates to sufficiency of Court fee. The mother, the

petitioner herein, has filed two applications; one under

Section 11 of the Karnataka Court Fees and Suits

Valuation Act, 1958 and the other under Order VII Rule

11 read with Section 151 of the Code of Civil Procedure,

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1908. The civil Court by the impugned order dated

21.01.2016 has rejected both these applications. The

petitioner has died during the pendency of the petition,

and the first defendant [the second respondent] has

filed the present set of applications for transposition

and for necessary orders on setting aside of abatement

and condonation of delay.

4.

The learned counsels for the parties are

heard on the applications as well as the merits of the

challenge to the impugned order. The civil Court has

rejected the petitioner’s applications opining that the

question of sufficient Court fee would require evidence

and the plaintiff-the first respondent could rely upon

the settled law that a person who is not a party to the

impugned Gift Deed need not seek for cancellation and

could effectively prosecute the suit filed for declaration

that the Gift Deed is not valid and binding.

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5.

It is now settled that the question of

sufficiency of Court fee and valuation need not

necessarily be taken up as a Preliminary Issue unless

the valuation and consequential payment of Court fee

touches upon the pecuniary jurisdiction of the Court. It

is equally settled that a person who is not a party to the

proceedings could successfully maintain the suit for

declaration that the document is not binding and in

which event, he need not seek for cancellation. In the

light of this settled propositions of law, there is no

reason for interference with the impugned order.

6.

Insofar as the applications filed by the

second respondent for his transposition as petitioner

asserting that as a Donee under the Gift Deed executed

by the petitioner-mother, in the light thereof would not

survive for consideration. The petition and the

applications therefore stand dismissed with liberty to

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the petitioners to prosecute their respective defence

before the trial Court.

Sd/-

JUDGE

AN/-