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Madhya Pradesh High Court · body

2015 DIGILAW 786 (MP)

Vijay Kumar v. Vinay Kumar

2015-07-31

PRAKASH SHRIVASTAVA

body2015
ORDER : PRAKASH SHRIVASTAVA, J. 1. This writ petition under Article 227 of the Constitution of India is at the instance of plaintiff in the suit challenging the order of trial court dated 13/2/2013 requiring the petitioner to pay the advalorem court fee on the value of the suit property disclosed in the sale deed. 2. In brief, the petitioner has filed the suit for declaration and injunction in which the respondent had filed an application under Order 7, Rule 11 CPC and trial court while deciding the said application has directed the petitioner to pay the advalorem court fee. 3. Learned counsel for petitioner submits that the trial court has committed an error in directing the petitioner to pay the advalorem court fee ignoring that petitioner is not a party to the sale deed. 4. As against this learned counsel for respondent has supported the impugned order. 5. Having heard the learned counsel for parties and on perusal of the record, it is noted that petitioner has pleaded in the plaint that suit property being house No. 53 situated at Shastri Marg Sailana District Ratlam is ancestral property and that it was received by petitioner in partition and he is in possession of the same and is residing therein. It is further pleaded that respondent No. 1(brother of petitioner) had got the sale deed dated 8/5/12 executed from Satyanarayan (father of petitioner) in his favour without payment of consideration amount and by committing fraud. In the suit a prayer has been made to declare the suit property as ancestral property and also declaring the petitioner as owner on the basis of partition and declaring sale deed dated 8/5/12 as void and restraining respondent by way of injunction from dispossessing the petitioner from the suit property. 6. The impugned order of the trial court reveals that trial court has directed the petitioner to pay advalorem court fee on the ground that main relief in the plaint is not for declaring the sale deed as void but it is the consequential relief, therefore, the petitioner is liable to pay the advalorem court fee but while holding so, the trial court has failed to consider the correct position in law in this regard. 7. 7. The Supreme court in the matter of Suhrdi Singh @ Sardool Singh v. Randhir Singh & others reported in AIR 2010 SC 2807 in similar circumstances has held as under: 6. Where the executant of a deed wants 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 biding 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 nonest/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 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. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, that court-fee shall be computed according to the amount at which the relief sought is valued in the plaint. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, that 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 that the value of the property calculated in the manner provided for by clause (v) of Section 7. 7. 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 "coparcenery" 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. 8. In the present case also the petitioner is claiming the suit property to be ancestral property having been received by him in partition and challenging the sale deed which has not been executed by him but by his father who said to have no right to execute the same. 9. The Full Bench of this court in the matter of Santosh Chandra & others v. Gyan Sunder Bai & others reported in 1970 JLJ 290 has settled that where a plaintiff is not a party to the instrument and he cannot be deemed to be a representative in interest of the person who is bound by that instrument, he can sue for a declaration simpliciter provided he is also in possession of the property. The Full Bench has held as under: 14. Thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. Thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. In such cases the question of court-fees has to be determined under Section 7 (iv) (c) of the Act, But, however, where a plaintiff is not a party to such a decree, agreement, instrument or a liability, and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or a liability, he can sue for a declaration simpliciter, provided he is also in possession of the property. In that event, the proviso to Section 42 of the Specific Relief Act might be a bar to the tenability of a suit framed for the relief of declaration simpliciter. But, that would be a different aspect. All the same, if the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-fees Act. 10. The another Full Bench of this court in the matter of Sunil S/o Dev Kumar Radhelia and others v. Awadh Narayan & others, reported in 2010 (4) MPLJ 431 has held that when the plaintiff makes an allegation that the instrument is void and hence not binding on him and a declaration simpliciter is sought then he is not required to pay the advalorem court fee. Considering the earlier judgment on the point Full Bench of this court has held as under :- 8. The Apex Court considering the distinction and meaning of void and voidable in Government of Orissa v. Ashok Transport Agency and others (2002) 9 SCC 28 held that the expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same, no declaration is necessary. Law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same, no declaration is necessary. Law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act e.g. May be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be one which is not a nullity but for avoiding the same, a declaration has to be made. Voidable act is that which is a good act unless avoided e.g. if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. 9. The Apex Court in Prem Singh v. Birbal, 2007(1) MPLJ (S.C.) 1 : (2006) 5 SCC 353 considering the question held that when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is not est in the eye of the law and it would be nullity. 10. A similar view has been taken by the Apex Court in Ranganayakamma v. K.S.Prakash, (2008) 15 SCC 673 wherein the Apex Court held that voidable transaction are required to be avoided while void transaction are not required to be avoided. When a contract is said to be voidable by reason of any coercion, misrepresentation or fraud particulars thereof are required to be pleaded. When a contract is said to be voidable by reason of any coercion, misrepresentation or fraud particulars thereof are required to be pleaded. That void document is not required to be avoided whereas voidable document must be. The position may have been different in respect of orders, judgments and decrees of the Courts. 11. The Apex Court considering similar question in Sneh Gupta v. Devi Sarup, 2010(1) MPLJ (SC) 70 : (2009) 6 SCC 194 held that if an order is void or voidable, the same must be set aside. Thus, the compromise/consent decree, which is as good as a contested decree even if void was required to be set aside. If the compromise has been accepted in absence of all the parties, the same would be void and the decree based thereupon must be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. A consent/compromise decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. 12. A Division Bench of this Court in Manzoor Ahmed v. Jaggi Bair and others, 2009 (4) MPLJ 182 , considering the question held that the question of payment of ad valorem court fee depends upon the averments made in the plaint. The Court has to find out whether transaction is alleged to be void or voidable. It depends upon the averments made, in each case, in the plaint whether ad valorem court-fee is payable or not. The Court is to find out whether transaction is alleged to be void or voidable. In case of void document, it is not necessary to seek the relief of cancellation of the document. In that case, plaintiff filed a suit for declaration of title and confirmation of possession. She had not claimed the relief for possession, so it was held that ad valorem court-fee was not required to be paid. The averments made in the plaint had indicated that the document in question was shown to be void not voidable, so ad valorem court-fee was not required. In case the document is voidable at the instance of executant, ad valorem court-fee is required to be paid but not in the case of void document. The averments made in the plaint had indicated that the document in question was shown to be void not voidable, so ad valorem court-fee was not required. In case the document is voidable at the instance of executant, ad valorem court-fee is required to be paid but not in the case of void document. In such case, injunction which was prayed, flows from the relief of declaration. 13. Now in the light of aforesaid settled position by the Apex Court and Full Bench of this Court, the first question referred by the Division Bench may be examined. When the plaintiff makes an allegation that the instrument is void and hence not binding upon him, and if a declaration simpliciter is prayed then he is not required to pay ad valorem court fee and a fixed court-fee under Article 17, Schedule-II of the Court Fees Act will be payable. This position is well settled by the Apex Court in Ningawwa (Supra) and continued till the decision in Sneh Gupta (Supra). The void document which is not binding upon the plaintiff needs to be avoided and in this regard a declaration is sufficient. The Full Bench of this Court in Santoshchandra (supra) has clarified the position and we respectfully agree with the law laid down by the Full Bench in Santoshchandra (Supra). 14. In view of the aforesaid discussions, there is no doubt that if plaintiff makes an allegation that the instrument is void and hence not binding upon him then ad valorem court-fee is not payable and he can claim declaration simpliciter for which court-fee under Article 17(iii) of Schedule-II would be sufficient. The question No.1 is answered accordingly. 11. The Division Bench of this court also in the matter of Manzoor Ahmed v. Jaggi Bai and others reported in 2009(4) MPHT 347 has reiterated the same position in law. 12. This court again in the matter of Ajay Pratap Singh and others v. Kuldeep Singh & others reported in 2013(2) MPLJ 602 in a case where the plaintiff had sought declaration of sale deed executed between some of the defendants in favour of other defendants as void and ineffective qua the plaintiff, where the plaintiff was not executant of the sale deed, has held that no advalorem court fee is payable. Thus, the position in law is clear that when the sale deed is challenged by the plaintiff in possession of the suit property as void and the plaintiff is not a party to the sale deed nor he is the representative-in-interest of the person bound by the sale deed then Section 7(iv)(c) of the Court Fees Act will not be attracted and plaintiff is not required to pay the advalorem court fee. 13. Learned counsel for respondent has placed reliance upon the Division Bench judgment of this court in the matter of Smt. Israt Jahan v. Rajia Begum & others, reported in AIR 2010 MP 36 but that was a case where the court had found that executant of the sale deed was competent to execute the sale deed and plaintiffs were bound by sale deed unless same is avoided. Thus the said judgment is distinguishable on its own facts. 14. In view of the above factual and legal position the impugned order passed by the trial court cannot be sustained and is hereby set aside by holding that petitioners are not liable to pay the ad valorem court fee. 15. Writ petition is accordingly disposed of. 16. C.c. As per rules.