Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 426 (KER)

Roy Michael. P. J v. Poorva Realities Pvt. Ltd.

2023-06-05

P.SOMARAJAN

body2023
JUDGMENT : It is against the findings rendered by the trial court in Ext.P9 order, after the remand of the matter by this court, the plaintiffs/petitioners came up. The suit was admittedly instituted for cancellation of a sale deed executed in respect of an immovable property for an amount of Rs.8,55,00,000/- (Rupees Eight Crores Fifty Five Lakhs). But the plaint was valued for a lesser amount under Section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act (herein after referred to 'the Act'), presumably based on the decision rendered by this Court in Usman Kurikkal v. Parappur Achuthan Nair [ 2012 (3) KLT 261 ]. Further, the plaint was ordered to be returned since the valuation of immovable property exceeds rupees ten lakhs, beyond the pecuniary jurisdiction of that court for proper presentation before the court having jurisdiction over the matter, under Ext.P9 order. 2. It is pertaining to the sale deed executed with respect to a property held in trust for the parishioners. The plaintiffs do not have any case of entitlement of share or fractional interest over the property and as such the legal position settled by this court in Usman Kurikkal's case (supra) may not have any application in the instant case. A suit either for cancellation of a deed of conveyance of immovable property held in trust or to set aside the same or for a declaration with respect to the title and nature of the property at the instance of beneficiaries would always stand governed by Section 28 of the Act and they are liable to pay court fee on the one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value on rupees one thousand. The beneficiary who came up with a suit in order to get any sale deed or deed of transfer or deed creating any right, title or interest over the property held in trust need not pay court fee for the amount of value incorporated under the document of transfer or based on the value of the property. The maximum court fee that can be payable is rupees two hundred or on rupees one thousand. The maximum court fee that can be payable is rupees two hundred or on rupees one thousand. They are not bound to pay any larger sum by way of court fee since the matter would not come under the purview of either Section 25 or Section 40 of the Act. In fact, Section 28 of the Act is a special provision dealing with trust properties. It is really an exception to Section 40 of the Act. Section 40 would come into play only when there is a suit for setting aside or cancellation of any decree or document which operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property. The right, title or interest in money, movable or immovable property as made mentioned under that provision should always be read and understood in relation to an existing right, title or interest capable of severance and alienation. In the absence of any such right, title or interest capable of severance or alienation as in the case of a trust property, the parties would stand outside the purview of Section 40 of the Act. A suit relating to trust property is an exception and would stand governed by Section 28 of the Act and not by Section 25 or 40 of the Act, though it involves cancellation of an unauthorized deed of conveyance. 3. It is a case wherein challenge was raised against the conveyance of immovable property alleged to have been held in trust for the parishioners. Necessarily, it is not Section 25(d)(ii) of the Act, which would govern the area, but Section 28 of the Act and a declaration sought by any of the beneficiaries, in whose benefit the property was held in trust, would stand governed by Section 28 of the Act, though the relief sought is for declaration or involves cancellation of such deeds. But, for the purpose of pecuniary jurisdiction, the valuation of the suit matter governs the area and if the valuation exceeds pecuniary jurisdiction of any court, necessarily, it has to be returned for proper presentation before the court having jurisdiction. But, for the purpose of pecuniary jurisdiction, the valuation of the suit matter governs the area and if the valuation exceeds pecuniary jurisdiction of any court, necessarily, it has to be returned for proper presentation before the court having jurisdiction. The order of the trial court regarding payment of court fee and the finding that the suit ought to have been valued under Section 40 of the Act for the purpose of payment of court fee is erroneous and hence cannot be sustained. Necessarily, there is no reason to interfere with the order directing return of the plaint. Hence, the original petition will stand dismissed.