JUDGMENT

Defendants 2, 10 and 12 in O.S.No.368/2014 on the file of the Munsiff Court, Chittur, have filed this Original Petition under Article 227 of the Constitution of India. The respondents herein are the plaintiff and other defendants.

2. The questions arise for consideration in this case are:

i) what is the court fee payable when a prayer for declaring that the purchase certificate obtained by the co-owner would enure to the benefit of all co-owners/legal-heirs?

(ii) what is the court fee payable for declaring a purchase certificate issued by the Land Tribunal as null and void, in a Suit for partition?

3. Heard both sides in detail.

4. Brief facts: O.S.No.368/2014 was filed by the plaintiff originally, seeking partition of the plaint schedule properties by metes and bounds. Thereafter the plaint got amended and 2 more prayers were incorporated. The prayers are `AA' and `AB'. But by way of amendment, for the reliefs `AA' and `AB', the subject matter is valued at Rs.1,000/- each and court fee to the tune of Rs.40/- each were paid under Section 25(d) of the Kerala Court Fees and Suit Valuation Act.

5. The learned Munsiff raised an additional issue to decide the question of valuation and court fee, on the basis of contention raised by the defendants in the Suit. Thereafter, the Munsiff found that the valuation and court fee paid are correct.

6. The petitioners herein assail the said order. It is argued by the learned counsel for the petitioner that since the subject matter being capable of valuation and the plaintiff valued the market value of the property based on its annual income at Rs.5,40,000/-, the plaintiff shall have to pay court fee in accordance with the said valuation.

7. Per contra, the learned counsel for the petitioners would submit that there is no need to pay court fee on the basis of the market value of the property and the valuation shown and the court fee paid in this matter are correct.

8. The learned counsel for the petitioners placed decision reported in [(2010) 5 SCC 622], Satheedevi v. Prasanna & anr. In the said decision, the Apex Court considered payment of court fee in relation to declaration regarding cancellation of a document. Ultimately it was held that court fee payable under Section 41 of the Kerala Court Fees and Suits Valuation Act, 1959 is based on the value of the property for which the document was executed and not its market value.

9. In another decision reported in [AIR 2010 SC 2807], Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., the Apex court carved out a difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance by illustrating 2 instances as extracted in para.6 of the above judgment. For clarity, I am inclined to extract para.6 as such:

"6. Where the executant of a deed wants it to be annulled, 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 folowing illustration relating to `A' and `B' – two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of he deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court-fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If `B', who is a non executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share,