IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WP(C).No. 35463 of 2008(V) -------------------------- OS.529/2006 of PRL.SUB COURT,THRISSUR .................... PETITIONER(S): ------------------------ 1. ANNAMMA, W/O.KUTHOORU ANTHONY, THIRUR DESOM, KOLAZHY VILLAGE,THRISSUR TALUK. 2. BABY ALIAS MARIYAM, W/O.CHIRAMMEL GEORGE @ FRANCIS, VELLATTANJUR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. MR.N.P.SAMUEL RESPONDENT(S): --------------------------- 1. DEVASSY, S/O.KUTHOORU ANTHONY, THIRUR DESOM, KOLAZHY VILLAGE, THRISSUR TALUK, THRISSUR DIST. 2. ROSSY, W/O.LATE PEROOTTY PAUL, OLLUR VILLAGE, THRISSUR TALUK,P.O.OLLUR, THRISSUR DIST. 3. ROSSA ALIAS OMANA, W/O.PORATHOOKKARAN JOSE, NEDUPUZHA DESOM, KANIMANGALAM, P.O.NEDUPUZHA, THRISSUR. 4. JOSE, S/O.MOOKKAN THOMAKUTTY, KOTTUKULAM ROAD, MATTANCHERRY, KOCHI. 5. DR.KURIAN, S/O.MOOKKAN THOMAKUTTY, THRISSUR TALUK, THRISSUR DISTRICT. 6. NALINI, W/O.MENOTHUPARAMBIL RAGHAVAN, THANNYAM VILLAGE, P.O.THANNYAM,THRISSUR. 7. RADHABAI,W/O.KOTTAPPURATH DR.K.R.VIJAYAN, LOKAMALESWARAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT. R2 & R3 BY ADV.MR.JIJO PAUL R4 BY ADVS. MR.K.JAYAKUMAR, SMT.GEETHA P.MENON, MR.P.M.NEELAKANDAN. R6 & R7 BY ADV.MR.K.A.SATHEESA BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.35463/2008 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT - O.S.NO.529/2006 OF THE SUB COURT, THRISSUR DTD. 17/05/06. P2: COPY OF ORDER PASSED IN O.S.529/2006 OF THE PRINCIPAL SUB COURT, THRISSUR DTD. 18/09/08. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.35463 OF 2008 () ----------------------------------- Dated this the 15th day of January, 2010 J U D G M E N T The writ petition is filed by the plaintiffs in O.S.No.529 of 2006 on the file of the Principal Sub Judge, Thrissur challenging the findings entered by the court below on the court fee payable on the basis of the contentions raised by the defendants. Among other issues, the court has raised additional issue No.3 whether proper court fee is paid on the suit claim. The gist of the plaintiffs' case as seen from copy of their Ext.P1 plaint is that there was a settlement, by which, specific shares were allotted to the sharers, but, some of the defendants (sharers) fraudulently created some documents in respect of the very same properties covered by the settlement deed. Plaintiffs applied for division of the property, as seen from the reliefs canvassed in the suit, treating that the documents subsequently created by the defendants as indicated above are not binding on them. However, the WPC.35463/08 2 plaintiffs have stated such relief separately in the plaint. The learned Sub Judge in considering issue No.3, it seems, was carried away by the fact that the reliefs can be claimed separately, and further on the view that plaintiffs had sought for a declaration that the documents, which are alleged to have been created by some of the defendants in the suit after the settlement deed, have to be set aside. In fact, no such relief was canvassed by the plaintiffs in the suit. That being so, I find the view taken by the court to sustain its conclusion that the plaintiffs have to value the suit property in respect of the documents covered which are impeached by him in the plaint under Section 40 of the Kerala Court Fees and Suits Valuation Act, cannot be sustained. However, it is seen, that the plaint allegations indicate that the plaintiffs are seeking a division of their separate allotment even after alleging that the division has taken place between the sharers under the settlement deed. In such a case, whether the suit can be considered as one for a suit for partition or for a declaration of the specific allotment made in favour of the plaintiffs under a settlement deed, is a matter to be gone into by the court. WPC.35463/08 3 Even if the allegations raised in the plaint for seeking the reliefs thereunder are found to be crystal clear with respect to the reliefs canvassed, I leave that question open for determination by the court. In case, it is found that the reliefs canvassed by the plaintiffs would amount to a declaration of the allotment of the property given to them under the settlement deed, then, necessarily, they have to value the suit for the declaration thereof as provided under the Court Fees Act. Setting aside the impugned Ext.P2 order, the court below is directed to hear the parties on that question and pass appropriate orders thereof on issue No.3 in the light of the observations made, as expeditiously as possible, at any rate, within a period of one month from the date of receipt/production of a copy of this judgment. With the above direction, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp WPC.35463/08 4