Sherly Varghese and Others vs Babykutty and Leelamma

Thomas P. Joseph, J.—Petitioners before me are defendant Nos. 2 and 3 and additional defendant Nos. 4 to 6 in O.S. No. 88 of 2006 of the court of learned Munsiff-Magistrate, South Paravoor. As amended the suit is for partition and separate possession of 2/3 shares claimed by the respondents and for other reliefs. Respondents alleged that they are in joint possession of the suit property along with petitioners and that their demand for partition was negatived by the petitioners. Thereon they sued for partition and separate possession of their 2/3 shares and for other reliefs. They contended that a release deed allegedly executed by them as if they had released their right over 2/3 shares in favour of the father of petitioner Nos. 1 and 2 is relied upon by petitioners but that document is sham, forged and fraudulently created and that they have not executed any such document relinquishing their co-ownership right in the suit property. They claimed that documents based on the said release deed are also fraudulent and not binding on them. As per the amended plaint respondents have sought for a declaration of their right over the suit property and paid court fee on half of market value of the property u/s 25(b) of the Kerala Court Fees and Suits Valuation Act (for short, "the Act") and for relief of partition fixed court fee u/s 37 (without mentioning the Sub-section) of the Act is also paid. According to the learned Counsel, respondents are liable to pay court fee u/s 40 of the Act on the amount of consideration stated in the release deed and other documents under challenge. Learned Counsel invited my attention to the relief portion in the plaint. Contending that court fee paid is not proper and that the suit is barred by limitation petitioners filed I.A. No. 715 of 2010 to dismiss the suit. That application was dismissed by the learned Munsiff-Magistrate as per Ext.P6, order.

So far as the necessity to pay court fee u/s 40 of the Act is concerned, though in the relief portion a prayer to cancel that document is also made, rest of the prayer is a declaration that the said document is sham, void and inoperative on the allegation that respondents have not executed such document. Hence setting aside the document is not required. Respondent had paid court fee on half of the market value for the relief of declaration which is sufficient.

After arguing the matter for some time learned Counsel has requested that he is not pursuing the contentions raised in this Writ Petition against the impugned order (Ext.P6) and that the learned Munsiff-Magistrate may be directed to expedite trial and disposal of the suit since it is of the year 2006. Learned Counsel states that pre-trial steps are over.

Having regard to the circumstances stated by learned Counsel, learned Munsiff-Magistrate, South Paravoor is directed to expedite trial and disposal of the suit if pre-trial steps are over. I make it clear that it will be open to the petitioners to challenge correctness of Ext.P6, order in appeal in case the decision in the suit goes against them and if they are otherwise entitled to do so as provided under law.

Original Petition is disposed of with the above directions.