- 1 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO.10558 OF 2020 (GM-CPC) BETWEEN: 1. SRI MANBDALESHWARA SWAMY COMMITTEE MANDLI N.T. ROAD, SHIVMOGGA, REPRESENTED BY THE SECRETARY M SANNAIAH, S/O M.MALLAIAH AGED ABOUT 57 YEARS, R/AT NEW MANDLI, SHIVAMOGGA CITY. 2. SRI MANBDALESHWARA SWAMY COMMITTEE MANDLI N.T.ROAD,SHIVMOGGA REPRESENTED BY ITS PRESIDENT ESHWARAPPA, NEW MANDLI SHIVAMOGGA. …PETITIONERS (BY SRI. BALAGANGADHAR G.S.,ADVOCATE) AND: 1. SMT.MAHADEVAMMA W/O LATE CHANDRAPPA AGED ABOUT 55 YEARS, RAMAPPA DEAD BY LRS - 2 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 2. SMT.YASHODAMMA W/O H.S.RAMAPPA 3. SMT.CHAYA D/O LATE H.S.RAMAPPA AGED ABOUT 40 YEARS, AGRICULTURIST. 4. R.VISHWANATHA S/O LATE H.S.RAMAPPA AGED ABOUT 38 YEARS, AGRICULTURIST, 5. SHASHIDARA S/O LATE H.S.RAMAPPA AGED ABOUT 35 YEARS, AGRICULTURIST, 6. SRIDHARA S/O LATE H.S.RAMAPPA AGED ABOUT 33 YEARS, AGRICULTURIST, ALL ARE R/AT AGASAVALLI VILLAGE, SHIMOGA TALUK-577 202. 7. VASANTHI D/O LATE H.S.RAMAPPA HOUSEHOLD WORK SRI ANNAPURNESHWARI SAW MIL NEAR PAPER FACTORY, SHIVAMOGGA-577 202. 8. H.S.CHIDAMBAR S/O HANUMANTHAPPA AGED ABOUT 31 YEARS, AGRICULTURIST, - 3 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 R/O OLD MANDLI NT ROAD, SHIVAMOGGA-577 202. …RESPONDENTS (BY SRI. S.V. PRAKASH, ADVOCATE FOR R1, R2 & R8; R3 TO R7 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TOQUASH THE ORDER PASSED BY THE LEARNED IV ADDL. CIVIL JUDGE, JR.DN., AND JMFC SHIVAMOGGA IN O.S.NO.709/2012 I.E., ORDERS ON PRELIMINARY ISSUE DATED 20.01.2020 PRODUCED AT ANNEXURE-D AS THE SAME IS IMPUGNED, PERVERSE, CAPRICIOUS AND LIABLE TO BE SET ASIDE THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The present petition seeks to challenge an order dated 20.01.2019 in O.S.No.709/2012 passed by the IV Additional Civil Judge and JMFC, Shivamogga (hereinafter referred to as the "Impugned Order"). By the Impugned Order, the preliminary issue on the question of valuation for the purposes of court fee and jurisdiction was answered against the petitioners/plaintiffs and it was held that the suit relief (a) would be valued under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as - 4 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 the "KCF Act") and the suit relief (b) would be valued under Section 38 of the KCF Act. 2. Learned counsel for the petitioners at the outset submits that so far it concerns the Impugned Order on relief (a), the petitioners do not have any grievance against the same and would be complying with the same within three weeks from the date of receipt of the order passed by this Court. However, he submits that so far it concerns second part of the Impugned Order, which is the relief (b), Section 38 of the KCF Act would not be applicable. 3. Learned counsel for the petitioners submits that prayer (b) in the plaint, which is a prayer for declaration that the partition deed is not enforceable against the petitioners/plaintiffs. The learned counsel further submits that, it is a settled law that where an executant of the deed wants a deed to be annulled, the relief of cancellation is sought. However, where a non- executant seeks the same relief, a declaration is to be sought. It is contended that the petitioners being non-executants have only sought for a declaration and fixed court fee is to be paid accordingly. - 5 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 3.1 Reliance in this behalf is placed on the judgment of the Supreme Court in Suhrid Singh v. Randhir Singh1 as well as on the judgment of the Coordinate Bench of this Court in Kunhanna Shetty vs. Cecilia Crasta and Others2. 4. Learned counsel for respondent Nos.1, 2 and 8, on the other hand, submits that the relief as sought for by the petitioners/plaintiffs is incorrect since they were required to seek the relief of possession. 5. As stated above, the first part of the Impugned Order is not the subject matter of challenge by the petitioners or the respondents and is thus upheld. The petitioners shall pay the revised court fee on the prayer (a) in the plaint in accordance with Section 24(b) of the KCF Act, within three weeks from today. 6. So far it concerns the prayer (b) in the plaint, which was sought for by the plaintiffs, the learned Trial Court gave a finding that the relief of declaration of the alleged partition deed dated 30.08.2011 being not enforceable is nothing but a 1 (2010) 12 SCC 112 2 2024 SCC OnLine KAR 13024 - 6 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 prayer for cancellation, and thus, the valuation of the prayer (b) in the plaint is to be done as per Section 38 of the KCF Act. The relevant extract of the Impugned Order in this behalf is set out below: "10. Further plaintiff also prays for the relief to declare that the alleged partition deed dated 30.8.2011 is not enforceable one and it is nothing but a prayer for cancellation of said deed. Hence, it cannot be considered as consequential relief. Under the circumstances, plaintiff has to value the relief 'B' as per Sec. 38 of the Karnataka Court Fee and Suit Valuation Act. ORDER …………………………………………………………………………………… Further plaintiff is hereby directed to value the suit relief 'A' under Sec. 24(b) Karnataka Court Fee and Suit Valuation Act and suit relief 'B' under Sec. 38 of Karnataka Court Fee and Suit Valuation Act. For filing fresh valuation slip by 23.01.2020." [Emphasis supplied] 7. It is apposite also to set out at this stage, the prayers in the plaint, which read as follows: "a. To declare that the plaintiffs, is the absolute owner of the suit schedule property morefully described in the plaint A schedule property; and b. to declare that the alleged partition deed Dated 30.08.2011 is not enforceable one. And it will not effect the right of the plaintiffs. c. To declare that the defendants have absolutely no right to the claim the rent from the tenants of the suit schedule property. - 7 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 d. To grant permanent injunction, restricted the defendants, workers, labours, Henchman, and others from not to interfere with the possession of the suit schedule property, of the plaintiffs. e. To grant such other reliefs as deems fit in the ends of justice." [Emphasis supplied] 8. As can be seen above, prayer (b) in the plaint is a prayer for declaration that a partition deed is not enforceable. It is not disputed by either party that the partition deed dated 30.08.2011 in respect of which relief is sought is not executed by the plaintiffs, but it is executed amongst the family members of the respondents/defendants. Thus, concededly the petitioners/plaintiffs are not executants of the deed. 9. The Supreme Court in Suhrid Singh v. Randhir Singh1 held that the relief of cancellation can only be taken by an executant of a deed and where a non-executant challenges a deed, mere declaration would suffice. The relevant extract of the judgment are set out below: "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 - 8 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 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 ₹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. 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. 9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “coparcenary” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds." - 9 - HC-KAR NC: 2026:KHC:744 WP No. 10558 of 2020 [Emphasis supplied] 10. In the present case, the relief of possession has not been sought for by the petitioners/plaintiffs. Since the petitioners/plaintiffs are not the executant’s of the deed, they do not require to ask for the relief of possession, in terms of the settled law. Thus, ad valorem court fee does not have to be paid. 11. In view of the foregoing discussions, this Court is unable to agree with the finding of the Learned Trial Court so far it concerns the court fee payable on prayer (b) in the plaint, which is accordingly set aside. 12. The petition is disposed of in the foregoing terms. The rights and contentions of both the parties are left open to be agitated before the Learned Trial Court in accordance with law. (TARA VITASTA GANJU) JUDGE hkh. List No.: 1 Sl No.: 24 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA