ORDER : 1. This writ petition is filed challenging the order dated 14.09.2020 passed in O.S.No.1038/2017 by the Principal Civil Judge, Mangaluru, D.K. 2. Heard. 3. Sri.K.Ravishankar, learned counsel for the petitioners submits that the respondent No.1 filed a suit for partition and declaration that the sale deeds dated 16.11.2015 and 19.06.2017 are not binding on the plaintiff and does not affect the right, title and interest of the plaintiff in the suit schedule property. It is submitted that the respondent No.1 valued the suit for relief of partition at Rs.23/- for the purpose of Court fee and Rs.64,558/- for the purpose of jurisdiction and paid the Court fee of Rs.200/- as per Section 35 (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as 'the Act') and valued the suit for the relief of declaration at Rs.1,000/- and paid the Court fee of Rs.25/- as per Section 24 (d) of the Act, which are incorrect. The respondent No.1 is required to value the relief No.2 as per Section 38 of the Act and for the purpose of jurisdiction, it should be valued as per Section 50 of the Act. 4. It is further submitted that the Trial Court considered the additional issue of Court fee and jurisdiction as the preliminary issue and incorrectly came to the conclusion that the suit is valued correctly and it has the jurisdiction. It is also submitted that the petitioners are seeking declaration that two sale deeds executed by their mother do not bind them. In other words, they are seeking for cancellation of the sale deeds. Hence, Section 38 of the Act is applicable and the Court fee is required to be paid as per the market value and the suit cannot be valued as per Section 24 (d) of the Act. It is contended that the Trial Court has not considered the effect of Section 50 of the Act with regard to the jurisdiction as the respondent No.1 failed to value the suit as per Section 50 of the Act for the purpose of jurisdiction. It is contended that the Trial Court has not considered the effect of Section 50 of the Act with regard to the jurisdiction as the respondent No.1 failed to value the suit as per Section 50 of the Act for the purpose of jurisdiction. It is further contended that if the Court fee is valued as per Section 38 of the Act, the respondent No.1 is liable to pay the Court fee as per the market value and the Court which is now trying the suit, would not have jurisdiction and the suit is required to be tried by the Senior Civil Judge. In support of his contentions, he placed reliance on the following decisions: (1) Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and Others, (2010) 12 SCC 112 (2) Shivaram Bapuchand Shaha and Co. Vs. Hirachand Sakharam Mehata and Co. (1987) 3 Kar. L.J. 571 (3) Thibbaiah Vs. Desigowda, (1992) 3 Kar. L.J. 745 (4) Guruprasad and Others Vs. S.A. Rudraradhya and Others, (2010) 4 Kar. L.J. 102 5. He seeks to allow the petition by setting aside the impugned order and by directing the respondent No.1-plaintiff to value the Court fee as per Section 38 of the Act and pay the Court fee on the market value and value the Court fee as per Section 50 of the Act and hold that the Court of Principal Civil Judge, Mangaluru, has no jurisdiction to try the suit. 6. Per contra, Sri.S.Rajashekar, learned counsel appearing for the respondent No.1 supports the impugned order and submits that the Trial Court, has considered the fact that the respondent No.1 is a non-executant to the sale deeds against which declaration is sought in the plaint and held that the suit is rightly valued as well as that the Court has jurisdiction. It is submitted that the mother of respondent No.1 executed a General Power of Attorney (GPA) on 11.04.1996 and on the strength of the said GPA, sale deed dated 16.11.2015 was executed. However, the mother of the respondent No.1 died on 01.04.2015. It is further submitted that the respondent No.1 is not a party to the sale deeds. Hence, he is seeking relief that the alleged sale deeds being null and void are not binding on him. However, the mother of the respondent No.1 died on 01.04.2015. It is further submitted that the respondent No.1 is not a party to the sale deeds. Hence, he is seeking relief that the alleged sale deeds being null and void are not binding on him. Accordingly, he has computed the Court fee under Section 24 (d) of the Act and considering his share in the suit schedule property to be 1/21 in respect of two items of the suit schedule property for the purpose of jurisdiction has assessed the property value at Rs.64,558/-, which is as per Section 35 of the Act. In support of his contentions, he has placed reliance on the following decisions: (1) Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and Others (supra) (2) Venkatesh S. Vs. State of Karnataka, W.P. No. 10782/2018 decided on 29.05.2018 (3) Deepthi and Others Vs. Devamma and Others, W.P. No. 33979/2018 decided on 02.04.2019 (4) K.P. Ponnappa Vs. K.P. Poovaiah, 2000 ILR Kar 3382 He seeks to dismiss the petition. 7. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent No.1 and perused the material available on record. I have given my anxious consideration to the submissions advanced by both the sides. 8. The respondent No.1 filed a suit in O.S.No.1038/2017 seeking the following reliefs: "a) For the partition of suit Schedule Property into ½ shares with in metes and bounds with reference to good and bad soil and to deliver 1 such share to the Plaintiff. b) To declare that the Sale Deed dated 16.11.2015 registered as Doct.No.MGT-1-07151/2015- 16 and preserved in C.D.No.MGTD411 and Sale Deed dated 19.06.2017, registered as Doct.No.MGT-1- 03000/2017-18 and preserved in C.D.No.MGTD554 on the file of Sub-Registrar, Mangalore Taluk is a void document and the same is not binding on the Plaintiff and does not affect the right title and interest of the plaintiff in the suit schedule property. c) For payment of full costs of the suit." 9. There is no dispute with regard to the relief No.1 by the petitioner. The relief No.2 is for declaration that the sale deeds dated 16.11.2015 and 19.06.2017 are void documents and the same are not binding on the respondent No.1 and does not affect the right, title and interest of the respondent No.1 in the suit schedule property. There is no dispute with regard to the relief No.1 by the petitioner. The relief No.2 is for declaration that the sale deeds dated 16.11.2015 and 19.06.2017 are void documents and the same are not binding on the respondent No.1 and does not affect the right, title and interest of the respondent No.1 in the suit schedule property. The valuation slip annexed with the plaint indicates that for the purpose of jurisdiction for the relief No.1 of partition, the respondent No.1 totally valued item Nos.1 to 3 at Rs.13,55,718/- and out of that, his claim is for 1/21 share and valued the suit for the purpose of jurisdiction at Rs.64,558/-. For the purpose of Court fee, for the relief of partition, the respondent No.2 assessed the land revenue of 3 items totaling to Rs.109.50p. For the purpose of Court fee, the share of the respondent No.1 of 1/21 is Rs.23/- and for the valuation for the relief of declaration is Rs.1,000/- under Section 24 (d) of the Act and accordingly, he paid the Court fee of Rs.25/-. The respondent No.1, at the end of paragraph 5 of the plaint, has specifically asserted that the alleged sale deeds have been fraudulently executed based on the alleged GPA executed by his mother in favour of the defendant No.12 and on the date of the execution of the sale deeds, she was not alive. The respondent No.1 is not a party to the sale deeds against which declaration is sought. Hence, he is a non- executant to the instrument in question. 10. It would be useful to extract the relevant paragraphs of the decision of the Hon'ble Supreme Court in SUHRID SINGH , referred supra, which are as under: "6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub-clause (e) thereof. 7. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under sub-clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under sub-clause (e) thereof. 7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. 8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. 8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. 10. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20-4-2001, 24-4-2001, 6-7-2001 and 27-9-2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments." [Emphasis supplied] 11. This Court, in the case of VENKATESH S referred supra, at paragraph 15 has held as under: " 15. It is settled position of law that where a person who is not a party to the instrument seeks for a declaratory relief to the effect that the said instrument is not binding on the plaintiff, the valuation under Section 24 (d) of the Act can be resorted to, whereas a party to a document, who seeks for relief regarding the said document would be required to value the plaint in terms of Section 38 of the Act, which provides for cancellation of instruments. It appears that where a person is a party to an instrument, any relief howsoever crafted would amount to a relief relating to cancellation of the said instrument and hence, appropriate valuation under Section 38 of the Act is required to be made. In the present case, there is no reason to exempt valuation under Section 38 of the Act. The mere allegations of fraud which, even if accepted, relates to partial failure of consideration and does not permit the plaintiff to value the suit under Section 24 (d) of the Act thereby getting over the valuation under Section 38 of the Karnataka Court Fees and Suits Valuation Act, which the plaintiff considers as onerous." 12. In the case of DEEPTHI , referred supra, it is held at paragraphs 9 and 10 as under: "9. In the case of DEEPTHI , referred supra, it is held at paragraphs 9 and 10 as under: "9. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for partition, possession in respect of the suit schedule properties and consequentially the relief of declaration to declare the sale deed dated 30.04.2014 executed by defendant No.1 in respect of defendant Nos. 8 and 9 is not binding on the share of the plaintiffs. On the application filed by the defendant Nos. 8 and 9, the trial court proceeded to frame the preliminary issue and treated issue No.3 as the preliminary issue and directed the plaintiff to pay the court fee under Section 38 of the Act mainly on the ground that the plaintiff filed the suit for declaration to set aside the order dated 30.04.2014 in favour of the defendant Nos. 8 and 9 and the said sale is not binding upon them for partition. It amounts to cancellation of the sale deed. The trial court failed to notice that admittedly, the case of the plaintiffs is that suit is for partition and separate possession and they are entitled to their share in all the suit schedule properties. They are only seeking for a declaration of the sale deed dated 30.04.2014 as null and void and not binding upon them and it does not amount to cancellation since they are not the executants. Admittedly, it is not the case of the defendant Nos. 1 to 7 that the plaintiffs have no share. The defendant Nos. 8 and 9 who are the bonafide purchasers and ultimately suit has to be decided on merits. 10. In a partition suit, mere arguing that a particular sale deed is not binding on the share of the plaintiffs does not amounts to cancellation of the sale deed. Therefore, the learned judge is not justified in directing the plaintiffs to pay the court fee under Section 38 of the Act. My view is fortified by the judgment rendered by this Court in the case of K.L. Venugopal and Another Vs. Vimala K. Venugopal and Others, 2018 (1) KLR 857 in an identical circumstances this court as held at paras 16, 17 and 18. xxxx" 13. This Court, in the case of K.P. PONNAPPA, referred supra at paragraph 8 has held as under: "8. Vimala K. Venugopal and Others, 2018 (1) KLR 857 in an identical circumstances this court as held at paras 16, 17 and 18. xxxx" 13. This Court, in the case of K.P. PONNAPPA, referred supra at paragraph 8 has held as under: "8. Sub-clause (d) of Section 24 is the clause which is relevant for our purpose. This provision makes it manifestly clear that the Court fee payable in respect of the relief of declaration by which neither possession of the property is prayed not any consequential relief of injunction with respect thereto is sought, it shall be computed on the amount at which the relief sought is valued in the plaint or rupees one thousand whichever is higher. Therefore, the additional relief of declaration added in the plaint by amending it squarely falls within the purview of Section 24 (c). This relief of declaration is valued in the plaint at rupees one thousand and accordingly, the Court fee thereon was computed and paid as required by Section 24 (d) the relief thus valued and Court fee computed thereon is therefore correct and proper. The Court below is clearly in error in holding the same as incorrect and improper and it is order impugned herein is liable to be set aside." 14. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court, this Court and the relevant provisions of law, I am of the considered view that the respondent No.1 who is a non-executant to the sale deeds is seeking annulment of the sale deeds in question. Seeking annulment, not binding, is not amounting to seeking prayer for cancellation by the executant as held by the Hon'ble Supreme Court in the SUHRID SINGH, referred supra. Hence, the contention that the respondent No.1-plaintiff is liable to pay the Court fee as per Section 38 of the Act has no merit. Admittedly, the sale deeds alleged to have been executed at the strength of GPA dated 11.04.1996 is alleged to have been executed by Smt.Kamalamma, the mother of the respondent No.1 after the death of the said Smt.Kamalamma. The respondent No.1-plaintiff is contending that the execution of the sale deeds are fraudulent and not binding on him and is not seeking cancellation of those instruments as provided under Section 38 of the Act, as an executant. The respondent No.1-plaintiff is contending that the execution of the sale deeds are fraudulent and not binding on him and is not seeking cancellation of those instruments as provided under Section 38 of the Act, as an executant. Hence, he cannot be compelled to pay the Court fee under Section 38 of the Act. 15. Insofar as jurisdiction is concerned, the petitioners contended that the respondent No.1 has to value the suit under Section 50 of the Act. The Trial Court, considering the effect of the said Section, observed that no doubt there is no specific provision under the Act for the purpose of determination of pecuniary jurisdiction, but Section 50 of the Act has come into play while determining the pecuniary jurisdiction and therefore, as per Section 50 (1) of the Act, the valuation for the purpose of Court fee as well as jurisdiction are one and the same. The said finding is based on the decision of this Court in the case of THIBBAIAH , referred supra. I do not find any error in the finding recorded by the Trial Court. 16. The Trial Court considered the additional issue as the preliminary issue and after considering the pleading and law on the subject, has recorded a clear finding that the respondent No.1 is a non-executant to the documents to which declaration is sought and rightly paid the Court fee as per Section 24 (d) of the Act and the assessment of Court fee for the purpose of jurisdiction. The judgments relied on by the learned counsel for the petitioners have no application to the facts and circumstances of the case. The law laid down by the Hon'ble Supreme Court in the case of SUHRID SINGH referred supra covers the field. I do not find any error or perversity in the finding recorded by the Trial Court calling for interference in this petition. 17. For the aforementioned reasons, I proceed to pass the following: ORDER : The writ petition is devoid of merits and the same is accordingly rejected. 18. In view of the disposal of the writ petition, the pending interlocutory application does not survive for consideration and is accordingly disposed of.