Anil Jaiswal And Ors. vs Rakesh Jaiswal And Ors.
2018 Latest Caselaw 3574 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Reserved
 

 
Court No. - 19
 

 
Case :- CIVIL REVISION No. - 96 of 2013
 

 
Revisionist :- Anil Jaiswal And Ors.
 
Opposite Party :- Rakesh Jaiswal And Ors.
 
Counsel for Revisionist :- Pritish Kumar
 
Counsel for Opposite Party :- B.K. Saxena,Jaspreet Singh
 

 
Hon'ble Vivek Chaudhary,J.

Heard Sri Pritish Kumar, learned counsel for the revisionists and Sri B.K. Saxena, learned counsel for the respondents.

Present civil revision is filed challenging the order dated 11.04.2013 in Regular Suit No.1142 of 2012 passed by learned Additional Civil Judge, Senior Division, Court No.20. By the said order, the learned Additional Civil Judge has required the revisionists-plaintiffs to deposit the court fees as per ad-valorem valuation of the property involved in the sale deed, as per Section 7(iv-A) (1) (The section is wrongly referred to as Section 7(vi-A) (1) in the impugned order).

Facts of the present case are that revisionists-plaintiffs filed a suit bearing R.S. No.1142 of 2012 for cancellation of sale deed and for permanent injunctions praying for cancellation of a sale deed dated 03.05.2010.

The relevant reliefs sought in the plaint are as follows:-

"(i) A decree for cancellation of sale deed only to the extent of the share of plaintiffs dated 03.05.2010 (Third May Thousand Ten) executed by the defendant no.1(One) in favour of defendant no.2(Two) & 3(Three) which was registered in the office of sub-registrar-III Lucknow on 25.09.2010 (Twenty Fifth September Two Thousand Ten) at Bhai No.1 (One) Jild No. 7999 (Seven Nine Nine Nine) pages 365-404 (Three Six Five-Four Zero Four) at serial no.7644 (Seven Six Four Four) dated 03.05.2010 dated 03.05.2010 be passed in favour of plaintiffs against the defendants and same be sent to the office of sub Registrar Lucknow to incorporate the same.

(ii) A Decree of Permanent Injunction be passed in favour of plaintiff against the defendants restraining the defendants from interfering in the peaceful possession and enjoyment of the plaintiffs in the property in suit which is morefully describe in para 1(One) to 4(Four) of the plaint."

The relevant plaint allegations for the purposes of this revision are:-

"10. That the plaintiffs immediately applied for the certified copy of the sale deed and after verifying the sale deed it reveals that defendant no.1 (One) executed the aforesaid sale deed for self and as power of attorney holder of plaintiffs in favour of the defendant nos 2 (Two) & 3(Three) who are non (sic) else but mother-in-law (Saas) and brother-in-law (Sala).

11. That it is relevant to mention here that the plaintiffs never authorized the defendant no.1 (One) to sell their property to any person. It is further relevant to mention here that allege power of attorney dated 09.04.2007 (Ninth April Two Thousand Seven) on basis of which the sale deed has been executed is a farzi and fictitious document which was not executed by the plaintiffs. The alleged power of attorney is also not a registered document and as per settled principle of law no transfer of immovable property can be made without registered power of attorney.

12. That the defendant no.1 (one) has never informed his intention to sell the properties of the plaintiffs to defendant nos. 2 (two) & 3(three), the plaintiffs also never authorized the defendant no.1(one) to sell their property.

13. That it is also relevant to mention here that the power of attorney on the basis of which defendant no.2[two] purchased the property for the defendant no.3[three] also  does not confer any right to purchase any property in her name therefore, the sale deed dated 03.05.2010[third May two thousand Ten] is also void because of non specific power to purchase the property on her behalf has been given to the defendant no.2[two] to the defendant no.3[three]."

The stand of the revisionists-plaintiffs in the aforesaid pleadings is that the sale deed was not executed by them. The person who executed the sale deed on the basis of power of attorney has played fraud upon the revisionists-plaintiffs, as power of attorney itself is forged as well as unregistered document and no sale deed on the basis of the said document could have been executed. Counsel for the revisionists-plaintiffs submits that, in the given facts and circumstances, stamp duty was required to be deposited as per Section 7(iv-A)(2) as plaintiff or his predecessor was not party to the instruments and not under 7(iv-A)(1), which is applicable in cases where plaintiff or his predecessor in interest is a party to the instruments. Learned counsel for the revisionists-plaintiffs places reliance upon the following three judgments:-

(i) Ram Narain Prasad and Another Vs. Atul Chander Mitra and Others; [(1994) 4 SCC 349],

(ii) Shailendra Bhardwaj and others Vs. Chandra Pal and Another; [2013(1) SCC 579],

(iii) New Dreamland Estate and another Vs. Smt. Naina Saagi; [2015 (112) ALR 532], Uttarakhand High Court, .

Countering the same, submissions of learned counsel for the respondents is that the sale deed is executed by a power of attorney holder on behalf of the plaintiffs and, therefore, plaintiff is a party to the document and, till it is declared forged, by a competent court of law, it cannot be said that plaintiff is not a party to the document. Learned counsel for the respondents places reliance upon the following judgments:-

(i) Her Highness Maharani Riwa Vs. Sangam Upnivesh Awas and Nirman Sahkari Samiti Ltd.; 2008 3 ALJ 375

(ii) Shailendra Bhardwaj and others Vs. Chandra Pal and Another; [2013(1) SCC 579],

The reasons given by the Court below in the impugned order is that (i) In case of Shailendra Bhardwaj (Supra), the Supreme Court has required that for getting a sale deed declared null and void the plaint would be chargeable under Section 7(iv-A), and (ii) the document is forged or not is a question of evidence which would be decided only after evidence is concluded and, therefore, at this stage entire ad-valorem court fees should be paid and not 1/5th part thereof.

So far as judgment in case of Shailendra Bhardwaj (Supra) is concerned, the issue involved in that case was as to whether in case of suit seeking declaration of a will and sale deed as void, the Court fee would be payable under Article 17(iii) of Schedule 2 of the Court Fees Act or would be payable under Section 7(iv-A) of the Court Fees Act. In the said case, Supreme Court has not gone into the issue as to whether the court fee would be payable under Section 7(iv-A)(1) or (2) of the Court Fees Act, as amended in State of U.P. Thus, the said judgment is of no help to either of the parties. So far as the judgment in New Dreamland Estate (Supra), the Uttarakhand High Court has taken a view that the case would be covered by Section 7(iv-A)(2) i.e. court fee would be payable on 1/5th of the ad-valorem value. So far as case of Her Highness Maharani Riwa (Supra) is concerned, again the same nowhere decides the issue involved in the present case.

Section 7 (iv-A) reads:-

"Section 7- For cancellation or adjuding void instruments and decrees.-(iv-A) In suit for or involving cancellation of or adjuding void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:

(1) Where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter; and

(2) Where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-

if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a party of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.

Explanation.-The value of the property for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-sections (v), (v-A) or (v-B), as the case may be.

The said provision is brought by amendment made by U.P. Act No.19 of 1938.

Supreme Court in case of Sathappa Chettiar Vs. Ramanathan Chettiar; AIR 1958 SC 245 has categorically stated that question of court fee has to be considered in the light of allegations made in the plaint and its decision could not be influenced either by the pleadings made in the pleas in the written statement or by the final decision of the suit on the merits. The same is stated upon a concession by the Supreme Court. However, the same was again affirmed in case of Ram Narain Prasad and Another Vs. Atul Chander Mitra and others; [(1994) 4 SCC 349]. Paragraph-8 of the said judgment reads:-

"8. Sathappa Chettiar Vs. Ramanathan Chettiarthis Court noted that the question of court fees had to be considered in the light of the allegations made in the plaint and its decision could not be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. Though this was stated upon a concession, we have no doubt that the statement lays down the law correctly. For the purposes of valuation of the suit for determination of the court fees payable thereon, what is relevant is the plaint. The averments made and relief sought in the plaint determines the character of the suit for the purposes of the court fees payable thereon. What is stated in the written statement is not material in this regard. This view has also been taken by many High Courts."(Emphasis added)

Therefore, what is relevant for the purposes of assessment of the court fees are averments in the the plaint and not what the ultimate findings in the case would be. Therefore, the second ground in order of the Court below, i.e., whether the document is signed by the parties or not is a issue to be decided on the basis of evidence and ultimate finding, is contrary to the law settled by the Supreme Court and also cannot stand.

The question before this Court, therefore, remains as to whether on the basis of averments made in the plaint, the court fees is to be paid under Section 7(iv-A)(1) or (2)?

There are three grounds of challenge raised in paragraph-11 and 13 of the plaint. The first is that a sale deed is executed on the basis of power of attorney which is farzi and fictitious document and was not executed by the plaintiffs. Had that been the sole ground, the court fee would have been required to  be paid under Sub-clause 2 of Section 7(iv-A), as plaintiffs in the said ground are claiming that they are not party to the document. Further in paragraph-11, another ground is also taken, that, the alleged power of attorney is also not a registered document and as per settled principle of law no transfer of immovable property can be made without registered power of attorney. Same is a ground in which revisionists-plaintiffs are taking an alternative plea, that, in case it is found that they have signed the document, the said document cannot stand in court of law, the same having been executed on the basis of power of attorney which was not registered. Further, in paragraph-13 of the plaint, plaintiffs have taken another ground that the sale is void because no specific power to purchase the property has been given by defendant no.2 to defendant no.3. Therefore, plaintiffs have taken alternative pleas which are not based only on denial of the execution of the document. Therefore, plaintiffs are liable to pay court fee under Sub-clause (1) of the Section 7(iv-A) of the Court Fees Act.

In view of aforesaid facts and circumstances of the case, though the reasoning given by the Court below is not correct, however for the reasons aforesaid, plaintiffs are liable to pay the court fee under Section 7(iv-A)(1) of the Court Fees Act.

Revisionists-Plaintiffs are granted one month time to make good the deficiency of the court fee. In case of failure, consequences shall follow.

With the aforesaid directions, present civil revision is disposed of.

Order Date :-12.11.2018

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