IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 9616 of 2009(O) ------------------------- OS. 268/07 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER/ PLAINTIFF ------------------------ SHANTHAKUMARIAMMA, SHANTI BHAVANAM, PAYYANALLOOR.PO. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENTS/ DEFENDANTS ------------------------- 1. VENU GOPALAN NAIR, RESHMI NIVAS, ERUMAKUZHY, NOORNAD.PO, MAVELIKARA. 2. SUNITHA KUMARI, W/O.VENU GOPALAN NAIR, -DO- -DO- ADV. SRI.K.SASIKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 9616/09) PETITIONER'S EXTS.: EXT.P1: A TRUE COPY OF THE PLAINT IN O.S.NO.268/07. EXT.P2: A TRUE COPY OF WRITTEN STATEMENT IN O.S.NO.268/07. EXT.P3: A TRUE COPY OF THE COMMISSIONER'S REPORT IN O.S.NO.268/07. EXT.P4: A TRUE COPY OF I.A.NO.451/09. EXT.P5: A TRUE COPY OF OBJECTION TO I.A.451/09. EXT.P6: A TRUE COPY OF THE ORDER IN I.A.451/09 IN O.S.NO.268/07. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.9616 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd November, 2009 JUDGMENT The above writ petition is filed by the plaintiff in O.S.No.268 of 2007 on the file of the Munsiff Court, Mavelikkara. Suit is one for a declaration that a registered sale deed executed by the plaintiff is a sham document and for injunction to restrain the defendants/respondents from trespassing upon the plaint property and dispossessing the petitioner/plaintiff. Suit claim was resisted by the defendants. After commencement of recording the evidence and examination of some of the witnesses including the defendants, the court below passed an order that court fee has to be paid in the suit under Section 40 of the Kerala Court Fees and Suits Valuation Act (for short 'the Court Fees Act') holding that the suit is one for setting aside a sale deed. Plaintiff was also directed to produce a valuation certificate over the suit property. Plaintiff, thereupon, moved P4 application to review the above order, which was objected to by the respondents filing P5 objections. P4 review petition, after hearing both sides, was dismissed by the learned Munsiff vide P6 order. Challenge in the writ petition is against P6 order invoking the W.P.C.No.9616/09 - 2 - supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. Heard counsel on both sides. Suit has been filed for a declaration that A1 sale deed is a sham document as it had been executed to evidence security for a loan transaction, according the counsel for the petitioner/plaintiff. That being the case of the plaintiff, it is contended, the court below went wrong in holding that the suit has been filed for setting aside A1 sale deed and then directing on such conclusion that the plaintiff has to value the suit with respect to the market value of the property and to pay court fee under Section 40 of the Court Fees Act. On the other hand, learned counsel for the respondents/defendants contended that there is no impropriety or illegality in the reasoning taken by the court below to conclude that the valuation made in the suit is not correct and the court fee paid inadequate, with further direction to produce the valuation certificate of the Tahsildar. Review Petition filed by the plaintiff challenging the order of the court, which was dismissed under P6 order, in the given facts of the case, does not warrant any interference in exercise of the visitorial jurisdiction vested with this court is the submission of the counsel. W.P.C.No.9616/09 - 3 - 3. P1 is the copy of the plaint, which clearly demonstrate that the plaintiff has sought for a declaration that A1 sale deed is a sham document as it had been executed only as a security for the loan transaction and for transferring the right over the immovable property. An additional relief of injunction restraining the defendants from trespassing upon the property and dispossessing the plaintiff from the plaint schedule property has also been canvassed in the suit. The court below directed the plaintiff to produce the valuation statement of the property on the premise that the suit has to be valued on its market value on the date of its presentation and court fee to be paid under Section 40 of the Court Fees Act. That view, no doubt, was taken considering the suit claim was one for setting aside A1 sale deed. The review petition filed by the plaintiff contending that the relief sought for was not for setting aside a document, but, for a declaration that the document is sham from very inception, and it has not created or limited or extinguished any right or title in respect of the immovable property. Declaration so sought for, according to the plaintiff, was not to set aside a document which was voidable, but, to declare a registered deed which did not affect any right over the immovable property as it had been executed only as a security to W.P.C.No.9616/09 - 4 - evidence a loan transaction. Perusing P6 order passed by the court below, it is noticed that relying on the decision of the apex court in V.M.Salim v. Fathima Muhammed (ILR 2006 (3) Ker. 193) the court below has formed a conclusion that A1 sale deed is not a sham document and in that view of the matter, the review petition filed by the plaintiff was dismissed. The question whether A1 sale deed is a sham document as alleged by the plaintiff or it is a sale of an immovable property which had come into effect deserve to be examined in the suit only after opportunity is extended to parties to lead evidence. Prejudging the issue at the stage when examining the valuation of the suit and the court fee payable is patently erroneous and unsustainable. Evidently, no relief to set aside A1 sale deed has been canvassed by the plaintiff in the suit and when that be so, plaintiff cannot be compelled to pay court fee under Section 40 of the Court Fees Act. Where the plaintiff claims that the document is sham and nominal, it need not be set aside as the relief claimed in the suit is not one for cancellation of the deed. P1 plaint would show that the case of the plaintiff is that towards the marriage expenses of her daughter she availed a sum of Rs.90,000/- from the first defendant, her brother, and then as demanded by him, A1 sale deed was W.P.C.No.9616/09 - 5 - executed as security for that loan transaction. The deed was never intended convey her rights over the property in favour of the defendants is her case. The loan amount of Rs.90,000/- had already been discharged by payment to the wife of the defendant, but, there is a threat from the defendants to forcefully dispossess her from the plaint property on the basis of A1 deed was her further case to seek the declaratory relief that the deed was only a sham document and also for an injunction. She has not prayed for setting aside the document, but, only for a declaration that it is a sham document. Since no relief for setting aside the document is prayed for, section 40 of the Court Fees Act is not applicable. Where the plaintiff claims that the document is sham and nominal, it need not be set aside and the suit for relief on that footing is not one for cancellation. Whether the suit is maintainable or not and also has the document come into effect or not as a valid conveyance are all matters which can be agitated by the defendants in the trial of the suit. The declaration sought for by the plaintiff in respect of A1 deed relating to the suit property and that too with a further relief for injunction, in the nature of the allegations raised and the reliefs claimed in the suit, falls under Section 25(b) of the Court Fees Act and necessarily, the fee has to be W.P.C.No.9616/09 - 6 - computed on one-half of the market value of the property or rupees one thousand whichever is higher. The plaintiff, it is seen, has valued the suit at Rs.45,000/- as one-half of the value of plaint A schedule property, but, as under section 25(d)(ii) of the Court Fees Act. The provision quoted under the Court Fees Act, of course, is not applicable. Plaintiff is free to make her own estimation of the relief sought in the plaint, and it is only in a case where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court is expected to examine its correctness. In case, the court below finds that the valuation made with reference to the market value of the property is demonstratively low, then, no doubt, it can direct the plaintiff to file valuation statement with reference to the category under which the immovable property scheduled fall for determination of the market value under section 7 of the Court Fees Act. Market value of the property has to be assessed for the purpose of valuation with reference to the question whether the property is an agricultural land or not, and also the existence of any building. Such exercise need be proceeded by the court at this stage in which the entire evidence is to be stated to W.P.C.No.9616/09 - 7 - be over, only if it comes to the conclusion that the valuation shown in the plaint is demonstratively low and it does not reflect the market value of the property. The defendants have not raised any objection to the valuation of the suit and the court fee payable on the reliefs claimed also deserve to be taken note of by the court in examining the question whether any further enquiry in respect of the valuation is called for at the fag end of the trial. P6 order is set aside, directing the court below to reconsider the question of valuation, if found essential only, taking note of the observations made above and dispose the suit as expeditiously as possible, in accordance with law. Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE