IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 25716 OF 2008(J) -------------------------- PETITIONER: -------------- MRS.ANNAMKUTTY, W/O. AUGUSTINE, PULICKAL HOUSE, PANANGADU P.O., KAMBALAM VILLAGE, KANAYANNORR TALUK. BY ADV. SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR SRI.GEORGE JOHNSON RESPONDENT: ------------- SMT. MARY,W/O. LATE SRI. AUGUSTINE, ISHNASSERRY HOUSE, PANANGADU P.O., KUMBALAM VILLAGE, KANAYANNOOR TALUK BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 25716 OF 2008 ------------------------------------------ Dated this the 26th day of August, 2008 JUDGMENT Petitioner is the plaintiff and respondent the defendant in O.S.297 of 2006 on the file of Sub Court, Ernakulam. This petition is filed under Article 227 of Constitution of India challenging Ext.P3 finding passed by learned Sub Judge on issue No.5. Under Ext.P3 order, learned Sub Judge found that the suit is for partition and petitioner is sought contending that the settlement deed 134 of 1982 is null and void and not binding on him and only such a declaration was sought and the document cannot be void, but only voidable, and if so, the suit has to be valued as provided under Section 40 (d) of the Kerala Court Fees and Suit Valuation Act. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel appearing for petitioner is that for considering sufficiency of the court fee only plaint allegation need be looked into and the relief sought for is only for partition after declaration that settlement deed is void and petition is not to set aside or cancel the document and therefore no court fee need be paid as provided under Section WP(C)25716/08 2 40(d) of Kerala Court Fees and Suit Valuation Act. 4. In the nature of the order to be passed in this application I do not find it necessary to issue notice to the respondent. 5. In the plaint, petitioner has not sought a decree for cancellation of the settlement deed 134 of 1982. Instead, he sought partition of the plaint schedule property, after declaring that the document is null and void. If the document is only voidable, petitioner is not entitled to get the decree. Petitioner has to face the consequences. When the case of the petitioner is that the document is null and void, and only such a declaration is sought Court was not justified in directing petitioner to pay court fee as provided under Section 40(d) of the Kerala Court Fees and Suit Valuation Act. Learned Sub Judge is therefore directed to reconsider issue No.5 and pass appropriate orders in accordance with law. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-