IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 37172 of 2008(A) -------------------------------------- OS.7/2008 of SUB COURT, KOYILANDY. .................... PETITIONER(S): --------------------- 1. THAYYANKHANNAPOYIL AYISSA, D/O. KUNHAMI UMMA, NAMBITHOOR HOUSE, SWASTHAM, MENHANNIAM AMSOM, MARUTHERI DESOM, KOYILANDY TALUK, MENHANNIAM.P.O. 2. NABEESA, D/O. KUNHAMI UMMA, KALAKUTTIKUNI HOUSE, KUNNATHARA, ULLIYERI AMSOM, AANAVATHIL DESOM, KANNOOR.P.O, ULLIYERI VIA, KOYILANDY. BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): ------------------------- 1. CHERUVALATH AMMATH, S/O. KUNHAMI UMMA, AGRICULTURIST, CHERUVALATH MEETHAL HOUSE, MENHANNIAM AMSOM, MARUTHERI DESOM, KOYILANDY. 2. SISTER PATHUMMA, D/O. KUNHAMI UMMA, NHERAPOYIL HOUSE, CHERUVANNUR AMSOM DESOM, KOYILANDY TALUK, CHERUVANNUR.P.O. 3. SISTER JAMEELA, D/O. KUNHAMI UMMA, VALLUPARAMBIL HOUSE, NOCHAD AMSOM, CEHNOLI DESOM, KOYILANDY TALUK, PERAMBRA.P.O. 4. SISTER SUBAIDA, D/O. KUNHAMI, OZHAKKERIPARAMBA HOUSE, KIDAVOOR AMSOM, PALLIPURAM DESOM, THACHAMPOYIL.P.O, THAMARASSERY. R1 BY ADV. MR.K.P.SUDHEER , SMT.N.N.PRASEEDA . R2 TO R4 BY ADV. MR.CIBI THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37172/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.7/2008 ON THE FILE OF THE SUBORDINATE JUDGE, KOYILANDY. EXT.P2: COPY OF THE ORDER IN O.S.7/2008 ON THE FILE OF THE SUBORDINATE JUDGE, KOYILANDY. EXT.P3: COPY OF THE JUDGMENT IN WP(C) NO. 30029/2008 OF THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER OF THE SUB JUDGE, KOYILANDY IN O.S.7/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37172 OF 2008 (A) ----------------------------------- Dated this the 30th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext.P4 order of the Sub Judge, Koyilandy. ii. to grant such other reliefs prayed for from time to time including cost of these proceedings. 2. Petitioners are the plaintiffs in O.S.No.7 of 2008 on the file of the Sub Court, Koyilandy and respondents are the defendants. Suit is one for partition. On the basis of the contentions raised by the defendants in their written statement, among other issues, valuation of the suit and also sufficiency of the court fee paid on the reliefs claimed was also raised by the court. That issue was considered as a preliminary issue and after hearing the counsel on both sides, the court below passed Ext.P4 order. Propriety and correctness of Ext.P4 order to the extent the plaintiffs are WPC.37172/08 2 aggrieved is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. So far as the challenge raised as to the court fee paid under Section 37 (2) of the Court Fees Act for getting the relief of partition, the contentions raised by the defendants were negatived by the learned Sub Judge, but, with respect to the valuation and court fee paid in respect of two registered documents which are sought to be declared as void, the court below accepting the contentions of the defendants directed the plaintiffs to value the suit and pay the court fee therein with respect to the market value of the property covered by those deeds. Correctness of that decision is impeached by the plaintiffs/petitioners in the present writ petition. Setting aside the two documents, the plaintiffs would get only 2/7 th shares, and as such in respect of the valuation for setting aside those documents and also the court fee payable thereon, plaintiffs need pay only 2/7 th of the market value of the whole property covered by the deeds, and accordingly, the valuation WPC.37172/08 3 has been correctly made and court fee paid, is the submission of the learned counsel. Sub Section (2) of Section 40 of the Kerala Court Fees and Suits Valuation Act is also relied by the learned counsel for the petitioners to contend that it enables the plaintiffs to assess the valuation and pay the court fee as canvassed. On the other hand, the learned counsel for the respondents submitted that valuation has to be made in respect of the market value for the whole property and not in respect of the share alone of the plaintiffs over the property, covered by the two deeds which are sought to be set aside, and court fee on the market value for the whole property has to be remitted. 3. I do not find any merit in the submissions of the learned counsel for the plaintiff that valuation and court fee in the present case falls under Sub Section (2) of Section 40 of the Kerala Court Fees and Suits Valuation Act. Sub Section (2) of Section 40 of the Kerala Court Fees and Suits Valuation Act, makes it clear that the document or decree should be one in which the liability under it cannot be split up, and, further, the relief claimed must relate only to a particular item of WPC.37172/08 4 property belonging to the plaintiff or to the plaintiff's share in any such property. That is not the case here. When that be so, for a declaration to set aside those documents, plaintiffs are bound to value the suit for the whole property in accordance with the market value and remit the court fee thereof and not in respect of their share alone. That position is concluded by the decision rendered by the Division Bench of this Court in Pachayammal v. Dwaraswamy Pillai (2006 (3) KLT 527). 4. The learned counsel for the petitioners sought for one month's time to amend the plaint to correct the valuation and pay the court fee payable. The court below is directed to grant the petitioners/plaintiffs one month's time to to carry out the amendment and remit the court fee from the date of this judgment. Subject to the above observations, this writ petition is closed. Handover a copy of this judgment to the counsel on both WPC.37172/08 5 sides on usual terms, and transmit a copy of this judgment to the court below forthwith. S.S.SATHEESACHANDRAN JUDGE prp