Madhya Pradesh High Court
Deceased Nagendra Singh S/O Jang ... vs Smt. Ushadevi on 4 March, 2024
Author: Pranay Verma
Bench: Pranay Verma
Page 1 of 4
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4th OF MARCH, 2024
MISC. PETITION No. 1148 of 2024
BETWEEN:-
1. DECEASED NAGENDRA SINGH S/O JANG
BAHADUR SINGH THROUGH LRS. GOVIND
SINGH S/O LATE SHRI NAGENDRA SINGH
THAKUR, AGED ABOUT 28 YEARS,
OCCUPATION: BUSINESS, R/O: 125/126,
PATNIPURA, INDORE (MADHYA PRADESH)
2. DECEASED NAGENDRA SINGH S/O JANG
BAHADUR SINGH THROUGH LRS. AMAN
SINGH S/O LATE SHRI NAGENDRA SINGH
THAKUR, AGED ABOUT 25 YEARS,
OCCUPATION: BUSINESS, R/O: 125/126,
PATNIPURA, INDORE (MADHYA PRADESH)
3. DECEASED VIRENDRA SINGH THAKUR S/O
JANG BAHADUR SINGH TROUGH LRS SMT.
SANGEETA W/O SHRI VIRENDRA SINGH
THAKUR OCCUPATION: BUSINESS, R/O:
125/126, PATNIPURA INDORE (MADHYA
PRADESH)
4. DECEASED VIRENDRA SINGH THAKUR S/O
JANG BAHADUR SINGH TROUGH LRS
ARJUN S/O VIRENDRA SINGH THAKUR,
AGED ABOUT 27 YEARS, OCCUPATION:
BUSINESS, R/O: 125/126, PATNIPURA,
INDORE (MADHYA PRADESH)
5. DECEASED VIRENDRA SINGH THAKUR S/O
JANG BAHADUR SINGH TROUGH LRS
DIVYA D/O SHRI VIRENDRA SINGH
THAKUR, AGED ABOUT 23 YEARS,
OCCUPATION: STUDENT, R/O: 125/126,
PATNIPURA, INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI POURUSH RANKA - ADVOCATE)
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 06-03-2024
12:29:52
Page 2 of 4
AND
1. SMT. USHADEVI W/O LATE VISHWABIHARI
AWASTHI, AGED ABOUT 70 YEARS,
OCCUPATION: HOUSE WORK, R/O: 61/3,
KESAR BAGH ROAD, OPP. RTO OFFICE
INDORE (MADHYA PRADESH)
2. SMT. MANISHA W/O LATE SANJAY
AWASTHI, AGED ABOUT 40 YEARS,
OCCUPATION: NOTHING, R/O: 61/3, KESAR
BAGH ROAD, OPP. RTO OFFICE, INDORE
(MADHYA PRADESH)
3. ASHUTOSH S/O LATE SRI SANJAY
AWASTHI THROUGH GUARDIAN AND
NEXT FRIEND SMT. MANISHA W/O LATE
SANJAY AWASTHI, AGED ABOUT 40 YEARS,
OCCUPATION: NOTHING R/O: 61/3, KESAR
BAGH ROAD, OPP. RTO OFFICE, INDORE
(MADHYA PRADESH)
4. RISHABH S/O LATE SRI SANJAY AWASTHI
THROUGH GUARDIAN AND NEXT FRIEND
SMT. MANISHA W/O LATE SANJAY
AWASTHI, AGED ABOUT 40 YEARS,
OCCUPATION: NOTHING R/O: 61/3, KESAR
BAGH ROAD, OPP. RTO OFFICE, INDORE
(MADHYA PRADESH)
5. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR DISTRICT INDORE
(MADHYA PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, the court passed
the following:
ORDER
Heard.
By this petition preferred under Article 227 of the Constitution of
India, the defendants 1 and 2/petitioners have challenged the order dated
05.02.2024 passed in Civil Suit No.RCS-58-A/2015 by the 29th District
Judge, Indore, whereby while considering an application under Order 7
Rule 11 of the CPC filed by them, it has been held that adequate Court
fees has been paid by the plaintiffs on the relief as claimed for by them in
the plaint.
02. A perusal of the impugned order passed by the trial Court
shows that the suit has been instituted by plaintiffs inter alia for
cancellation of the sale-deed dated 03.12.2010 executed by Shri
Vishwabihari Awasthi, their predecessor in interest. The objection of
defendants No.1 and 2 in their application under Order 7 Rule 11 of the
CPC was that since plaintiffs are claiming title through said Vishwabihari
Awasthi they are required to pay ad valorem Court fee on the aforesaid
relief. The said contention has been negatived by the trial Court on
recording of finding that since plaintiffs are not executants of the sale-
deed they are not required to pay ad valorem Court fees thereupon.
03. The view taken by the trial Court is perfectly just and legal in
view of the decision of the Hon'ble Supreme Court in Suhrid Singh Vs.
Randhir Singh and Others (2010) 12 SCC 112 in which it has been
held 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 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."
04. In the aforesaid case, the Apex Court has clearly held that it is
only the executant of the sale-deed who is liable for payment of ad
valorem Court fees in case he wishes to get the same set aside and if he is
not an executant he need not pay ad valorem Court fees. Plaintiffs are not
executants of the sale-deed dated 03.12.2010 hence are not liable to pay
ad valorem Court fees in light of the decision as aforesaid. Since it has
already been held by the Supreme Court that a non-executant of the sale-
deed is not required to pay ad valorem Court fees, the contention of the
learned counsel for defendants 1 and 2 that since plaintiffs are claiming
under the executant they are required to pay ad valorem Court fees is not
liable to be considered and the judgments relied upon by him in support
of the said contention also do not help him in any manner.
05. Thus, in view of the aforesaid, I do not find any error having
been committed by the trial Court in passing the impugned order. The
petition being devoid of merits is hereby dismissed.
(PRANAY VERMA)
JUDGE
Shilpa
