Madhya Pradesh High Court
Rajesh Kumar (Deleted) Through Lrs (A) ... vs Mangal Singh (Deleted) Through Lrs ... on 17 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.655 of 2021
RAJESH KUMAR (DELETED) THROUGH LRS (A) SMT LALLI AND OTHERS
Vs.
MANGAL SINGH (DELETED) THROUGH LRS BHAGWAN SINGH AND OTHERS
APPERANCE
Shri Parth Dixit - Advocate for the petitioners.
None for respondents.
------------------------------------------------------------------------------------------
Reserved on : 09/04/2025
Delivered on : 17/4/2025
------------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
---------------------------------------------------------------------------------------
ORDER
By way of instant petition, under Article 227 of the Constitution
of India, the petitioner is challenging the order dated 12.03.2020 passed
by Civil Judge, Class I, Gohad, District Bhind in Case No.29 of 2020
(RCSA) by which an application preferred by the present
petitioners/defendants under Order 7 Rule 11 of the Code of Civil
Procedure, 1908 was rejected.
2. Vide said application, the petitioners/defendants had sought
rejection of the plaint on the ground that despite the sale deed dated
11.12.2019 having been challenged and relief of declaring it to be null
and void and not binding on the respondents/plaintiffs had been sought,
the Court-fees ad valorem had not been paid on the sale consideration
on the said sale deed.
3. Learned Trial Court after considering the matter held that since an
allegation of fraud has been levelled by the plaintiffs to the effect that
on the pretext of treatment of his eyes thump impression of the original
plaintiff/respondent was forcibly taken over the said sale deed which
was without any consideration, therefore, the Court-fees ad valorem
was not required to be paid.
4. Learned counsel for the petitioners, while placing reliance upon
the judgment of the Apex Court in the matter of Suhrid Singh @
Sardool Singh vs Randhir Singh & Others reported in (2010) 12 SCC
112, has argued that in the aforesaid judgment, the Apex Court has
specifically held that where the executant of a sale deed seeks
annulment thereof, such executant has to actually seek cancellation of
the sale-deed, and in such a situation, Court-fees ad valorem would be
required to be paid, calculated on the amount of sale consideration
shown to have been paid, in the sale deed. On the other hand, if a non-
executant of a sale-deed seeks annulment thereof, she/he simply is
required to file a suit seeking a declaration to that effect, on which a
fixed court fee in terms of Article 17 (iii) of the 2nd Schedule to the
Court Fee Act, 1870, needs to be paid, hence, the sale deed having been
shown to be executed by the respondent/plaintiff himself despite of the
allegation that the said sale deed was got executed by means of fraud
played upon him was required to pay Court-fees ad valorem.
5. None for the respondents.
6. Heard counsel for the petitioner and perused the record.
7. Learned Trial Court on the basis of decision of this Court in the
matter of Smt. Leenmat vs. Purushottam reported in 1985 M.P.L.J.
748 had given a finding that since the declaration of sale deed dated
11.12.2019 to be null and void has been sought on the basis of
committal of fraud by the defendants and not binding on the
respondents/plaintiffs, therefore, as per the provisions of Section 7(iv)
of the Court-fees Act, 1870, he is not required to pay ad valorem Court
fees since the plaintiff is not seeking cancellation of the said sale deed
and accordingly, had rejected the application under Order 7 Rule 11 of
CPC, in this context, the facts of judgment of Smt. Leenmat vs.
Purushottam (supra) and the analogy laid thereupon is required to be
seen.
8. Therein, the plaintiffs had filed a suit for declaration and title of
the disputed property and had paid Court fees of Rs.30/- for the relief of
declaration and the requisite Court-fees for relief of possession. The
case therein contained in the plaint was that the land originally
belonged to one Jagannath who died on 22.05.1981. Being a widow and
daughter of the deceased Jagannath, the applicants-plaintiffs claimed to
succeed to the aforesaid land alleging that Jagannath was ailing since
last several years and was otherwise old, infirm and illiterate person and
the non-applicant's mother acting on behalf of the applicants got a sale-
deed executed regarding the suit land and house from deceased
Jagannath for a sum of Rs.32,000/- after making a fraudulent
representation that such a course of action was required to properly
manage the property. It was further alleged that the said Jagannath was
not paid any consideration for the aforesaid sale and later on, when the
deceased Jagannath learnt of the fraudulent activity, he requested the
non-applicants' parents to get the sale-deed cancelled, thus alleging the
sale deed being effected by fraud and misrepresentation, a relief of
declaring the said sale deed to be void was prayed and therein, the
applicants did not seek any relief of cancellation of sale-deeds.
9. An objection was taken by non-applicants defendants that the suit
was not properly valued for Court-fees inasmuch as no Court-fees had
been paid for the relief of cancellation of sale deed, with a further
submission that the plaint has been very cleverly worded so that though
the main relief is the relief of cancellation of sale deed, it seeks only the
relief of declaration.
10. The learned trial Court upheld the objections and directed the
plaintiff therein to pay ad valorem Court-fees, thus, the matter went in
the way.
11. Learned Coordinate Bench while referring to one of the Full
Bench decisions of this Court passed in the matter of Santoshchandra
v. Smt. Gyansundarbai reported in 1970 M.P.L.J. 363 and in the
matter of Partap Kunji v. Puniya Bat reported in 1976 M.P.L.J. 627
found that Jagannath Sahu was an old, sick and illiterate person and
taking advantage of the same, defendants' mothers in collusion with
their husbands, represented to late Jagannath Sahu that it was necessary
to execute a document for proper management of the agriculture field
and therefore fraudulently got the present sale deed executed
fraudulently, thus, held that the fraudulent misrepresentation would be
not merely as to the contents of the document, but also its character and
in such circumstances, the Supreme Court in the matter of Ningwwav.
Byrappa Hirekurahar reported in AIR 1968 SC 956 held the alleged
sale deed to be wholly void and not voidable and in that circumstance,
concluded that it was not necessary for the applicants to seek relief of
setting aside the sale deed and was not required to pay ad valorem
Court-fees.
12. The fact of the aforesaid case reveals that the sale deed was
executed by late Jagannath and the suit was filed by his widow and
daughter alleging that since fraud was played upon their husband/father,
the document is void and after analyzing it, it was concluded that they
are not required to seek cancellation of sale deed and therefore, would
not be liable to pay ad valorem Court-fees. To this extent, this Court is
in conformity with the law laid down by the Coordinate Bench but
herein case, the facts are somewhat different, as herein case, the
executant of the sale deed is the plaintiff himself and is seeking a
declaration of the sale deed to be null and void and not binding upon
him since was got executed by means of fraud and misrepresentation.
13. The Apex Court in the matter of Suhrid Singh @ Sardool Singh
vs Randhir Singh (supra) in para 7 has 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 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."
14. The Apex Court in categorical terms had laid down two
situations; one where the executant of the deed wants to get it annulled
and second, a case where non-executant seeks annulment of a deed. In
the first case, if the executant wants to get the deed annuled, he has to
seek cancellation of the deed and if the non-executant seeks annulment
of a deed, he has just to seek a declaration that the deed is invalid, or
non-est, or illegal and that it is not binding on him.
15. The aforesaid fact had been demonstrated by means of illustration
by the Apex Court and held that in the cases where executant wants to
get the deed annulled, then he has to pay ad-valorem Court-fees as
provided under Section 7(iv)(c) of the Act and if the non-executant
wants to get the same relief, then he has to merely pay a fixed court fee
under Article 17(iii) of Second Schedule of the Act. To this extent, the
position is very much clear.
16. Now, the question arises that when the plaintiff had pleaded fraud,
whether the very sale deed can be said to be void and would entail that
the plaintiff would not be required to pay ad-valorem Court-fees.
17. This Court having regard to the allegations of fraud pleaded
having been perpetuated finds that it would be very easy for the
plaintiffs challenging or seeking cancellation of the sale deed by
pleading fraud and thereby avoid payment of ad-valorem Court fees.
However, it cannot be loss sight of that in some cases, the allegation
may actually eventually be found to be true upon evidence led to that
effect before the trial Court and in such a case, naturally, the plaintiff
would be entitled to recover her/his costs from the defendant concerned.
However, at a stage when the contention is only an allegation that is still
to be proved, it cannot be held that on a prayer made for the
cancellation of a sale deed by a person shown to be the executant
thereof, in person, he/she would be exempted from affixing Court-fees
ad valorem.
18. Since in the present case, the respondent/plaintiff apart from
declaration has also sought a consequential relief of injunction, as per
Clause (c)(iv) of Section 7 of the Court Fees Act, 1870, he is required to
pay the ad-valorem Court fees on the valuation of the suit.
19. Consequently, this petition is allowed and the impugned order
herein is set aside, with a direction to the trial Court concerned to
proceed with the matter only after the respondent/plaintiff affixes Court-
fees ad valorem as per the consideration shown to be paid in the sale
deed in question.
20. It is made clear that this Court has not given any finding so far
fraud having been pleaded against the present petitioners, which would
be considered by the trial Court wholly on the basis of the evidence led
before it.
21. With the aforesaid observation, the present petition is disposed
of.
(Milind Ramesh Phadke)
Judge
pwn*
PAWAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d631287f1
b1cdd90b4a49f265f02d9d593f, postalCode=474001,
KUMAR
st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD4455ED49EA43
6EA65E26164BEEED89153191C56E98CE21,
cn=PAWAN KUMAR
Date: 2025.04.17 18:12:02 +05'30'
