Madhya Pradesh High Court
Vinod Singh vs Pz And Company on 9 December, 2022
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 9th OF DECEMBER, 2022
MISC. PETITION No. 4675 of 2021
BETWEEN:-
VINOD SINGH S/O SHRI
RAMCHARAN SINGH, AGED
ABOUT 55 YEARS, OCCUPATION:
B.E. ENGINEER CIVIL R/O HOUSE
NO. 20 FACE NO. 02 GOLDEN CITY
JAAKHEDI HOSHANGABAD ROAD
BHOPAL (MADHYA PRADESH)
......PETITIONER
(BY SHRI M.A. USMANI-ADVOCATE)
AND
PZ AND COMPANY THR. AS
PARTNER SHRI
RADHESHYAM SHARMA S/O
ABL SHARMA A/A 57 Y
OFFICE ADD. 2/5
INDUSTRIAL STATE
GOVINDPURA INDUSTRIAL
AREA DISTT. BHOPAL M.P.
(MADHYA PRADESH)
............RESPONDENT
(NONE )
This petition coming on for hearing this day, the court passed the
following:
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/12/2022
5:52:00 PM
2
ORDER
This misc. petition has been preferred by the petitioner/defendant
challenging the order dated 15/11/2021 (Annexure P/5) passed by 7th
Civil Judge, Senior Division, Bhopal in RCS no.614-A/2020, whereby
learned court below has dismissed the application filed under Order 7
Rule 11 CPC filed by the petitioner/defendant.
2. Despite service of notice on the respondent, nobody appears
to oppose the petition.
3. Learned counsel for the petitioner/defendant submits that the
registered gift deed was executed on 16/07/2020 by respondent/plaintiff
in favour of the defendant/petitioner-Vinod Singh with regard to plot in
question, thereafter the plaintiff/respondent has instituted the suit in
question dated 07/12/2020 for the following reliefs:-
"(a) To declare that the Gift Deed dated 20/07/2020 executed in
favour of the defendant is a void-abinitio, nonest and not binding on the
Plaintiff being fradulently executed by the Defendant.
(b) Issue a permanent injunction restraining the Defendant, his
persons, agents, servants working under him from alienating or creating
any third party interest in respect of the suit property situated and forming
part of Khasra No. 101/4 having total area of 0.920 Hectare i.e. 2.27
Acres at Gram Hinotiya Alam, Patwari Halka No. 28, Revenue Circle No.
03, Vikaskhand Phanda, Tehsil Huzur, District Bhopal (MP) vide a
registered Sale Deed executed on 03.07.2019.
(c) Cost of this suit also be awarded in favour of the Plaintiff and
against the Defendant.
(d) Any other order which this Hon'ble Court deems fit, may also
be passed in favour of the Plaintiff and against the Defendant under the
circumstances of the case."
4. Learned counsel for the petitioner/defendant submits that
by way of filing suit for declaration, plaintiff/respondent wants to get
cancelled registered gift deed even without payment of requisite court
fee, to which it is a party, which is not permissible under the law and even
if the plaintiff/respondent has not sought relief of cancellation of the gift
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/12/2022
5:52:00 PM
deed, the plaintiff/respondent has to pay ad valorem court fee on the
valuation put by the plaintiff itself with regard to the declaration.
Accordingly, he submits that the learned court below has wrongly held
that the plaintiff is not required to pay ad valorem court fee on the
amount, on the basis of which plaintiff/respondent has valued the suit.
Accordingly, he prays for allowing the petition.
5. Heard learned counsel for the petitioner and perused the
record.
6. From bare perusal of the plaint allegations, it is clear that the
execution of gift deed dated 16/07/2020 (Annexure P/2) is not in dispute
and plaint averments show that the gift deed has been challenged on the
ground that instead of executing a sale deed the defendant fraudulently
got the gift deed of the suit property executed in his favour without
making any payment of consideration. In the entire plaint, it is not case of
the plaintiff that its partner Mr. Pradeep Sharma is an illiterate person.
7. The plaintiff himself has valued the suit at the market rate
for the purpose of declaration at Rs.10,49,876/- but has paid court fee of
Rs.500/- only. From the relief clause no. (a) also, it is clear that the
plaintiff has sought declaration to the effect that the gift deed dated
20/07/2020 be declared as void ab-initio, nonest and not binding on the
plaintiff being fraudulently executed by the defendant.
8. Looking to the dispute involved between the parties to the
suit, the provision of section 19 of the Contract Act, 1872 is relevant to
consider, which is quoted as under :
"19. Voidability of agreements without free consent.
When consent to an agreement is caused by coercion, [* * *] fraud or misrepre -
sentation, the agreement is contract voidable at the option of the party whose con-
sent was so caused.
A party to contract, whose consent was caused by fraud or misrepresentation,
may, if he thinks fit, insist that the contract shall be performed, and that he shall
be put in the position in which he would have been if the representations made
had been true.
Explanation: -If such consent was caused by misrepresentation or by silence,
fraudulent within the meaning of section 17, the contract, nevertheless, is not
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/12/2022
5:52:00 PM
voidable, if the party whose consent was so caused had the means of discovering
the truth with ordinary diligence.
Explanation: - A fraud or misrepresentation which did not cause the consent to
whom such fraud was practised, or to whom such misrepresentation was made,
does not render a contract voidable."
9. It is well settled that registered document is treated/considered
as a valid document until and unless it is cancelled or declared void by
the court of competent jurisdiction, which is yet to be done by the court
after enquiry in the suit filed by the respondent/plaintiff. In the case of
Prem Singh and others Vs. Birbal and others (2006) 5 SCC 353, the
Supreme Court has held as under :-
"27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be
valid in law. The onus of proof, thus, would be on a person who
leads evidence to rebut the presumption. In the instant case,
Respondent No.1 has not been able to rebut the said presumption."
10. For the reasons not mentioned in the impugned order,
learned Court below has not properly considered the judgment of
Supreme Court in the case of Suhrid Singh Vs. Randhir Singh 2010(12)
SCC 112, relevant para 7 of which is as under :
"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
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/12/2022
5:52:00 PM
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."
11. Learned trial Court while passing the impugned order has
placed reliance on the decision of Supreme Court in the case of
Ningawwa Vs. Byrappa Shiddappa Hireknrabar and others AIR 1968 SC
956 and held that the document in question/gift deed is a void document
but has failed to consider the facts of Ningawwa's case, in which the
executant was an illiterate and ignorant wife and all her affairs were being
managed by her husband who stood in a position of active confidence
towards her and was in a position to dominate her will.
12. In my considered opinion, the document in question is not
void but it may be voidable. As such, facts of the present case are
squarely covered by judgment of Supreme Court in the case of Suhrid
Singh Vs. Randhir Singh (supra) and the plaintiff/respondent is required
to pay the ad valorem court fee on the amount of Rs.10,49,876/- for
which he has valued the suit for declaration.
13. However, the plaintiff is granted thirty days time to pay
requisite ad valorem court fee from the date of its first appearance before
the trial Court after passing of this order. With these observations, this
petition is allowed and disposed off.
14. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
skt
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 12/12/2022
5:52:00 PM
