J U D G M E N T

Plaintiffs 1 to 3 in O.S.No.29 of 2014 on the file of Sub Court, Ottappalam, have filed this Original Petition under Article 227 of the Constitution of India challenging order dated 26.09.2018 passed by the learned Sub Judge, Ottappalam in the suit, whereby the learned Sub Judge found that plaint A relief was not properly valued and proper court fee also was not paid.

2. Heard the learned counsel for the petitioners as well as the learned Government Pleader representing respondents 4 and 5.

Respondents 1 to 3, though served with notice, did not appear. 3. The crux of the matter is that the plaintiffs herein filed Suit for declaration and partition of the plaint schedule properties.

The first prayer in the Suit is to declare that the plaint schedule properties covered by registered documents, viz., 1663/1978, 66/1979, 106/1979, 1059/1978 and 14/1987 were purchased by the earnings of Sri Raman (father), who is no more, for the benefit of all legal heirs of Raman.

4. The second prayer was for partition of the above items and allotment of 4/5 share of the plaintiffs out of the same.

5. In the Suit, the plaint B relief is valued at Rs.13 lakh on the assertion that the market value of the property comes to Rs.13 lakh. Out of which, Rs.10,40,000/- is valued for the purpose of payment of court fee towards 4/5 claimed by the plaintiffs and court fee for the same also was paid. Whereas, as regards to relief `A' is concerned, court fee was paid after valuing `A' relief for Rs.14,700/-, being the total consideration shown in the five documents, under Section 25 of the Court Fees and Suits Valuation Act. The learned Sub Judge found that since `B' relief is valued at Rs.13 lakh (the market value of the property), `A'

relief also to be valued at Rs.13 lakh as the said amount is the market value for valuing `A' relief, also.

6. The learned counsel for the petitioners would submit that there is no need to pay court fee based on the market value and the plaintiffs have to pay only fixed court fee in tune with the value shown in the documents. As such, the plaintiffs correctly valued `A' relief the amount in the Suit at Rs.14,700/- and court fee thereof was paid. Therefore, the learned Sub Judge went wrong in finding otherwise, as per the order impugned. The learned counsel for the petitioners highlighted a decision of the Apex Court reported in [AIR 2010 SC 2807], Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. In the said decision, 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, he has to merely pay a fixed court- fe