Chattisgarh High Court

Ashiya Begum vs Sajik Khan on 16 June, 2025

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                                                                   2025:CGHC:24626

                                                                                 NAFR

                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                   WP227 No. 494 of 2025

          1 - Ashiya Begum W/o Bashir Khan Aged About 69 Years R/o Risai Para,
          East Dhamtari, Post, Tahsil And District Dhamtari Chhattisgarh.
                                                                     ... Petitioner
                                          versus
          1 - Sajik Khan S/o Bashir Khan Aged About 44 Years Muslim R/o Post
          Office Ward Star Sita Factory Near Sen Samaj Bhawan, Dhamtari, Post
          Tahsil And District Dhamtari Chhattisgarh

          2 - Adil Khan S/.O Bashir Khan Aged About 42 Years Muslim, R/o Risai
          Para Near East Mandir, Post, Tahsil And District Dhamtari Chhattisgarh

          3 - Rizwan Khan S/o Bashir Khan Aged About 37 Years Muslim R/o Post
          Office Ward Star Sita Factory Near Sen Samaj Bhawan, Dhamtari, Post,
          Tahsil And District Dhamtari Chhattisgarh.
                                                            ---- Respondents

For Petitioner : Shri D.N. Prajapati, Advocate.

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 16.06.2025

1. The petitioner, by filing this petition, has assailed the order passed

by the learned Trial Court, whereby an application moved by the

defendants/respondents No.1 & 3 under the provisions of Order 7

Rule 11 of CPC has been allowed therein directing the petitioner to

pay ad-valorem court fee.

2. The petitioner/plaintiff filed a suit seeking a declaration that the gift

deed dated 14.2.2019 is not binding upon her along with the relief

of injunction. The petitioner valued the suit at Rs.36,42,000/- for

the purposes of pecuniary jurisdiction as per market value and

affixed the court fee of Rs.1,000/-.

3. The respondents filed their written statement denying the

allegations made in the plaint. Respondents No.1 and 3 moved an

application under Order 7 Rule 11 of CPC for rejection of the plaint

on the ground that the plaintiff has not affixed ad-valorem court fee

though she herself is the executant of the gift deed. The petitioner

filed a reply to the aforesaid application contending that she has

rightly valued the suit property and affixed proper court fees for the

relief of declaration and injunction. It is also stated that since the

petitioner has merely prayed that the gift deed is not binding upon

her, therefore, there was no requirement to pay ad-valorem court

fee.

4. Learned Trial Court vide order dated 9.4.2025 partly allowed the

application and directed the petitioner to affix ad-valorem court

fee.

5. Learned counsel for the petitioner would argue that the order

passed by the learned Trial Court is erroneous. He would further

submit that the gift deed was the outcome of fraud and therefore,

there was no requirement to seek cancellation of the gift deed

dated 14.2.2019. He would also submit that the plaintiff has the

right to value the suit as per her wishes and reliefs of declaration

and injunction have been sought, for which appropriate court fee

has already been paid.

Learned counsel for the petitioner has placed reliance on the

judgment of the High Court of Madhya Pradesh rendered in the

matter of Manzoor Ahmed vs. Jaggi Bai and Others, 2009 (4)

MPHT 347, wherein it was held that the plaintiff is not required to

seek consequential relief of cancellation of the document or to pay

ad-valorem court fees, as the suit property was never sold and no

consideration was received. It was further held that since the

plaintiff remained in possession of the suit property, she was not

required to claim cancellation of the document or to pay ad-

valorem court fees. The relevant para 8 is reproduced herein

below:-

"8. It depends upon the averments made in each case in the plaint whether ad valorem Court fees is payable or not. Court has to find out whether a transaction is alleged to be "void" or "voidable". In case of void document, it is not necessary to seek the relief of cancellation of document. In the instant case also, plaintiff is claimed to be in possession, she is not claiming relief for possession, thus, it could not be said that ad valorem Court fees is required to be paid."

6. In the matter of Sunil Radhelia and Others vs. Awadh Narayan

and Others, 2010 (4) MPHT 477, it was held that when the

plaintiff makes an allegation that the instrument is void and hence

not binding on him, ad-valorem court fee is not payable.

Furthermore, when the plaintiff makes an allegation that the

instrument is void on the ground that it is a forged document and

does not bear the signature of the executant, he is not required to

pay ad valorem court fee. The relevant para 16 is reproduced

herein below:-

"16. To sum up, the questions referred to this Court are answered thus:-

(1) Ad valorem Court fee is not payable when the plaintiff makes an allegation that the instrument is void and hence not binding upon him.

(2) The decision rendered in Narayan Singh (supra), lays down the law correctly that the plaintiff a party to the instrument is not required to pay ad valorem Court fee as he had made an allegation that the instrument was void on the ground that the document was forged one and it does not bear the signature of the executant.

7. The Hon'ble Supreme Court in the matter of Suhrid Singh vs.

Randhir Singh, (2010) 12 SCC 112, held that where the

executant of a deed wants it to be annulled, he has to seek

cancellation of the deed. However, 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. It is

further held that if the executant of the deed seeks cancellation of

the deed, he has to pay ad-valorem court fee on the consideration,

whereas a non-executant may file a suit by affixing the normal

court fee required for declaration and injunction. The relevant para

7 is reproduced herein 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 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. In the present case, the gift deed dated 14.2.2019 was executed

by the petitioner herself. The judgment in the matter of Sunil

Radhelia (supra) was rendered by the Full Bench of the High

Court of Madhya Pradesh on 8.9.2010 whereas the matter of

Suhrid Singh (supra) was decided by the Hon'ble Supreme Court

on 29.3.2010 but it was not brought to the notice of the Full bench

of the High Court of Madhya Pradesh. It Is a well settled principle

of law that the law laid down by the Hon'ble Supreme Court would

be binding on all courts including High Courts, therefore the

contention made by Mr. Prajapati cannot be accepted. According

to the law laid down by the Hon'ble Supreme Court in the matter of

Suhrid Singh (supra), the petitioner is required to seek