IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 5169 of 2010(O) ------------------------- OS.1148/2007 of MUNSIFF COURT.,ERNAKULAM .................... PETITIONERS: --------------- 1. AMMINIYAMMA @ BHARATHIYAMMA, AGED 65 YEARS, D/O.LATE PARAMESWARAN MENON, THELAMPARAMBIL HOUSE, MARADU P.O, KANAYANNUR TALUK, NOW RESIDING AT NANDANAM, CHOTTANIKKARA PO KUREEKKAD VILLAGE, KANAYANNUR TALUK 2. ANIL KUMAR SHARMA, AGED 35 YEARS, CC NO.12/333, COCHIN COLLEGE ROAD, MATTANCHERY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.PEEYUS A.KOTTAM SRI.RENJITH THOMAS RESPONDENT: --------------- SANKARANKUTTY @ UNNI, AGED 57 YEARS, S/O.LATE PARAMESWARA MENON, THELAMPARAMBIL HOUSE, MARADU PO, KANAYANNUR TALUK, NOW RESIDING AT PUTHENPURAYIL HOUSE, THRIKKARIYOOR, KOTHAMANGALAM P.O., KOTHAMANGALAM TALUK. ADV. SRI.M.K.SUCHEENDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.5169 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT DTD.27-09-2007 FILED BY PLAINTIFF BEFORE THE MUNSIFF COURT, ERNAKULAM EXHIBIT P2 : SALE DEED NO.3449/2007 DTD.16-07-2007 OF SUB REGISTRAR'S OFFICE, MARADU EXHIBIT P3 : I A NO.5339/2008 DTD.02-07-2008 IN O.S.NO.1148/2007 FILED BY PETITIONERS EXHIBIT P4 : JUDGMENT DTD.02-11-2009 OF THIS HONOURABLE COURT IN W.P.C.NO.30206/2008-(U) EXHIBIT P5 : TYPED ORDER DTD.08-01-2010 OF MUNSIFF COURT, ERNAKULAM IN I.A.NO.5339/2008 IN O.S.NO.1148/2007 EXHIBIT P6 : COMMISSION REPORT DTD.15-10-2007 SUBMITTED BY ADVOCATE COMMISSIONER IN O.S.NO.1148/2007 BEFORE THE MUNSIFF COURT, ERNAKULAM EXHIBIT P7 : SKETCH SUBMITTED BY ADVOCATE COMMISSIONER IN O.S.NO.1148/2007 BEFORE THE MUNSIFF COURT, ERNAKULAM RESPONDENTS EXHIBITS: NIL THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.5169 of 2010 --------------------------------------- Dated this 27th day of May, 2010 JUDGMENT Defendant Nos.1 and 2 in O.S.No.1148 of 2007 of the court of learned Munsiff, Ernakulam are the petitioners before me. They challenge Ext.P5, order holding that court fee paid for relief (A) in the plaint is not sufficient and that computation of market value under Section 7 of the Kerala Court Fees and Suit Valuation Act (for short, “the Act”) is not proper. Respondent filed the suit in respect of 6.130 cents described in the plaint schedule. It is the case of respondent that the said property along with other items belonged to his predecessors-in-interest and after their death, there was a partition among co-owners as per document No.2002 of 1970 dated 07-09-1970. All the sharers except respondent disposed their shares and thus respondent got 16 cents as his absolute property. In paragraph 4 of the plaint he stated that petitioner No.1 entered into criminal conspiracy with a real estate broker and sold 6.43 cents from the property belonging to him to respondent No.2/defendant No.2 as per Ext.P2, sale deed No.3449 of 2007 dated 16-07-2007. It is averred in paragraph 4 of the plaint that petitioner No.1 had no manner of right to sell the said property and W.P.C.No.5169 of 2010 : 2 : petitioner No.2 has no right to purchase the same and hence Ext.P2, sale deed is void ab initio and has no force in the eye of law. Hence that transaction is to be set aside as null and void. In the relief portion respondent prayed as relief (A) that Ext.P2, sale deed may be set aside since petitioner No.1 is not the owner of the said property and had no right to transfer the same to Ext.P2. As per relief (B) respondent prayed that it may be declared that suit property is part of property belonging to him, he is in possession and that petitioners may be injuncted from entering the said property. Relief (A) was valued at Rs.50,000/- under Section 40(1) and (2) of the Act claiming that the property is marshy land which does not give any yield and assessing market value under Section 7 (4) of the Act, court fee for relief (B) was paid on one half of that market value under Section 25(b) of the said Act. Petitioners contended that since respondent has sought to set aside Ext.P2, sale deed he is liable to pay court fee under Section 40 of the Act on the value of property and consideration stated in Ext.P2, sale deed (Rs.63,00,000/-) and for the said reason court of learned Munsiff lacked pecuniary jurisdiction to entertain the suit. According to the respondent court fee paid for relief (A) is correct since the property is unyielding marshy land and its market value has to be assessed under section 7(4) of the Act. Learned Munsiff vide Ext.P5, order held that valuation made and court fee paid are W.P.C.No.5169 of 2010 : 3 : correct and that the court of Munsiff has jurisdiction to entertain the suit. That order is under challenge at the instance of petitioners. Learned counsel placing reliance on the decision in Satheedevi Vs. Parasanna (2010 (2) KLT 642) has contended that since respondent has sought to set aside Ext.P2, sale deed he is liable to pay court fee for the value of property stated in the document (Rs.63,00,000/-) under Section 40 of the Act and hence the court of Munsiff lacked pecuniary jurisdiction. It is also the contention of learned counsel that the suit is an abuse of the process of the court and to support that contention has produced Ext.R1(b). Learned counsel for respondent per contra contended that relief (A) in Ext.P1, plaint is redundant as that relief was not necessary since according to the respondent, Ext.P2, sale deed is ab initio void having been executed by petitioner No.1 who had any right over the property or authority to transfer it and hence the said document has no effect in the eye of law. It is also the contention of learned counsel that relief (B) alone was sufficient since respondent has sought for a declaration of his title and possession and respondent is entitled to ignore Ext.P2, sale deed executed by petitioner No.1 without any right or authority. Respondent has already filed an application for amendment of the plaint in the court below to delete relief (A). 2. No doubt under Section 40 of the Act when a decree for W.P.C.No.5169 of 2010 : 4 : money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest in money, movable or immovable property is sought to be set aside, court fee has to be computed on the amount or value of the property for which the decree was passed or document was executed. Hence if a sale deed is sought to be set aside, value of the property for purpose of court fee is the value stated in the deed and court fee has to be paid as per Section 40 of the Act. In this case plea of respondent is that Ext.P2, sale deed is null and void since the property belonged to him absolutely and petitioner No.1 had no right over it or authority to execute the assignment deed. A document which is null and void is non est in the eye of law and is not required to be set aside. It need only be ignored. (See Pankajaksha Kurup Vs. Fathima (1998(1) KLT 668), Karuna Kuries & Finance Vs. Kunju Vareed (1999(2) KLT 118) and Prem Singh Vs. Birbal (2006(2) KLT 863). Setting aside a document is required when it is voidable and not void. In Satheedevi Vs. Prasana (supra) the document sought to be set aside was not void but only voidable. Respondent has sought for a declaration of his title and possession. In such cases, even if a relief of setting aside a document which is otherwise null and void is sought for, it need only be considered as an ancillary relief. This W.P.C.No.5169 of 2010 : 5 : aspect of the matter was not taken into account by the learned Munsiff while passing Ext.P5, order. Learned Munsiff has to consider whether on the facts pleaded by respondent setting aside the document was necessary to grant relief of declaration of title, possession and injunction (relief B) to the respondent in which case whether it was necessary to pay court fee under Section 40 of the Act or court fee paid for declaration of title and possession sought for by the respondent was sufficient. If respondent has moved an application for amendment of the plaint to delete relief (A), that matter also has to be decided by the learned Munsiff. 3. Learned counsel for petitioners has a contention that even if court fee is to be paid under Section 25(b) of the Act for relief (B), market value assessed is not sufficient. I leave that matter to open to be decided by the learned Munsiff. Resultantly, this writ petition is allowed. Ext.P5, order is set aside and the matter is remitted to the court below for fresh disposal. If respondent has preferred any application for amendment, necessarily before considering sufficiency of court fee, learned Munsiff has to dispose of that application. (THOMAS P JOSEPH, JUDGE) Sbna/-