IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 RFA.No. 653 of 2004(F) ---------------------------- OS.82/2002 of ADDL.SUB COURT, KOCHI .................... APPELLANT(S): PLAINTIFF -------------------------------- O.V.PRASAD, AGED 46 YEARS, S/O.VASU, RESIDING AT HOUSE NO.IX/520, OF KOCHI CORPORATION, KURUPPUTHARA, THOPPUMPADY VILLAGE, KOCHI TALUK. BY ADVS. SRI.M.M.MATHEW SRI.ANTO SABASTIAN RESPONDENT(S): DEFENDANTS ------------------------------------ 1. VASU, AGED 78 YEARS, S/O.KRISHNAN, RESIDING AT HOUSE NO.IX/520 OF KOCHI CORPORATION, KURUPPUTHARA, THOPPUMPADY VILLAGE, KOCHI TALUK.(DIED) * THE FIRST RESPONDENT DIED. THE RESPONDENTS 2 TO 5 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF R1 AS PER ORDER DATED 17/12/2007 IN STATEMENT WITH C.F.5671/2007. 2. PREETHY GOPINATH, AGED 49 YEARS, W/O.GOPINATH, RESIDING AT HOUSE NO.18/1430 OF KOCHI CORPORATION, KALLUTHARA (H), PALLICHAL ROAD, PYARI JUNCTION, KOCHI-05. 3. PRABHU O.V., AGED 44 YEARS, S/O.VASU, RESIDING AT ARAMURIYIL HOUSE, C.C.16/1941, THOPPUMPADY, KOCHI-6. .....2/-... ..2.. 4. PRAMEELA, AGED 41 YEARS, W/O. OF SAMBASIVAN, HOUSE WIFE, GOURI NIVAS, C.C.XIX/113, RAMESWARAM VILLAGE, KOCHI TALUK. 5. PRADEEPKUMAR P.V., AGED 38 YEARS, S/O.VASU, RESIDING AT J3, JEWEL CROWN, JEWEL HOME APARTMENT, PALARIVATTOM, KOCHI-25. R4 BY ADV. SMT.VANAJA MAHADEVAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2010, ALONG WITH CRP NO. 198 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.653 of 2004-F = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of September, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is filed by the plaintiff in a suit for partition. He challenges an order rejecting the plaint for non-payment of court fee. 2.The plaintiff sued for partition after setting aside a sale deed executed by his mother. The plea is that the mother executed the sale deed under vitiating circumstances and that the sale is liable to be set aside or declared as null and void and the plaintiff be granted a decree for partition. The court below held, on the objections of the defendants, that the valuation of the suit is not proper in as much as the relief in relation to the declaration as regards RFA653/04 -: 2 :- the sale deed is not properly valued. The court below noted that the value of improvements is determined at Rs.2 lakhs and the relief relating to setting aside the sale deed is valued at Rs.5 lakhs. The Court below, way back in 2004, directed the plaintiff to pay the balance court fee in relation to those reliefs. The plaintiff filed C.R.P.198/2004 challenging that decision. Pending that, in the absence of any interlocutory order from the revision, the Court below rejected the plaint. Hence, this R.F.A. 3.When CRP.198/2004 came up for consideration, the Bench had passed an order on 26.3.2010 closing that revision leaving the petitioner-appellant with liberty to raise all grounds in the CRP as part of the grounds in the RFA. 4.We have heard the learned counsel for the appellant and the respondents also on the merits of the order of the court below holding that the court fee has to be paid as determined by it. RFA653/04 -: 3 :- 5.Admittedly, the property originally belonged to the mother of the plaintiff. She is shown to have executed a document of sale in favour of one defendant, who is one of her daughters. The suit is to set aside that sale deed and then to grant partition of the property treating the mother as having died intestate. On this set of facts, we do not find any illegality, irregularity and impropriety or other ground of unsustainability on any ground, as regards the order of the court below determining the court fee. 6.The learned counsel for the appellant, however, makes a reference to Sankaran v. Velukutty, 1986 KLT 794. That was a case where an item of property over which the plaintiff in that suit had a share was dealt with in a settlement deed to which he was not a party. This Court, therefore, took the view that the plaintiff, under such circumstances, was entitled to sue for partition ignoring the settlement and hence had RFA653/04 -: 4 :- not to pay court fee on the relief of setting aside the settlement deed. That decision has no application to the facts of the case in hand since, during the life time of his mother, the plaintiff had no right to sue for partition ignoring the mother's exclusive title. 7.Having found that the order of the trial court in relation to the determination of court fee stands, the only question that remains is as to whether the rejection of plaint for non-payment of balance court fee needs to be set aside. It is true that about seven years have lapsed after the institution of the suit. Yet, we are persuaded to think that the plaintiff should be given an opportunity to pay balance court fee. He had not paid the balance court fee only because of the impression that his challenge against the order determining the court fee may, ultimately, succeed before this Court. However, we are of the view that this could be done only on terms. RFA653/04 -: 5 :- In the result, this appeal is allowed setting aside the impugned rejection of plaint, however confirming the order dated 13.8.2003 in O.S.82/2002 which was, earlier, the subject matter of CRP.198/2004. The plaintiff is granted one month's time from today for payment of balance court fee and the rejection of plaint would stand set aside on payment of such court fee and on payment of Rs.5,000/- as costs to the defendants, payable, within three weeks, to the learned counsel appearing for them before this Court. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/3009