Orissa High Court

Abhaya Prasad Nayak vs Suchismita Jena & Anr. .... Opposite ... on 20 August, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

    IN THE HIGH COURT OF ORISSA AT CUTTACK

                   CMP No. 449 of 2024

(An Application under Articles 227 of the Constitution of
India)

Abhaya Prasad Nayak             ......          Petitioner

                            -Versus-

Suchismita Jena & Anr.          ....         Opposite Parties
______________________________________________________

  For Petitioner   : Mr. P.K.Lenka, Advocate

   For Opp. Party : None

______________________________________________________
CORAM:
     JUSTICE SASHIKANTA MISHRA

                        JUDGMENT

20th August, 2025

SASHIKANTA MISHRA, J.

The petitioner is the plaintiff in C.S. No. 1022 of

2023 pending in the Court of learned Civil Judge (Senior

Division), 1st Court, Cuttack. In the present application

filed under Article 227 of Constitution of India, he seeks

to challenge order dated 16.12.2023 passed by the Court

below rejecting his prayer for not paying the ad-valorem

court fees.

2. The facts of the case, relevant only for deciding the

present application are that the Opposite Parties are the

married daughters of the petitioner who, considering the

depressed state of mind and ill health of the petitioner in

the year 2022, resulting in his inability to look after the

suit property properly, suggested at the instance of their

husbands, to the plaintiff to execute a power of attorney

in their favour. It was given out that being thus

empowered, the power of attorney holders would take

care of the plaintiff and his wife and also look after the

suit property. The plaintiff, in good faith executed the

power of attorney. Subsequently. when the Opposite

Parties at the instance of their in-laws threatened to

dispossess the plaintiff from the suit land asking him to

vacate the two storied building standing thereon on the

ground that the same had already been gifted by him to

them, the plaintiff being in a shock, inquired and came to

know that the opposite parties, taking advantage of his

state of mind had fraudulently obtained a registered gift

deed on 08.04.2022 while professing to execute a power

of attorney in their favour claiming that the so called gift

deed was a contract of fraud and misrepresentation by

the Opposite Parties and that the same had not been

acted upon. The plaintiff thus filed the suit for

declaration that the gift deed dated 08.04.2022 be

declared as fraudulent, illegal, null and void and is not

binding on him, along with consequential relief. The

plaintiff valued the relief of declaration at Rs. 52,000/-

and permanent injunction at Rs. 3,000/- and as such

paid Court fee of Rs. 2834.25 on the total evaluation of

Rs. 55,000/-. However, office note prepared by the

Sheristadar pointed out defect that ad-valorem Court fees

on the valuation of the property covered under the gift

deed being Rs. 57,16,300/- had not been paid. Thus,

deficit court fees were demanded as a condition for

admission of the suit. The matter being placed before the

Court below, the plaintiff claimed that the gift deed

having been obtained by him by fraud, he cannot be

treated as executant of the deed so as to be held liable to

pay ad-valorem Court fees as pointed out in the office

note. He cited several judgments in support of his

contention. The Court below, by the order impugned

distinguished the judgments cited by holding that the

petitioner being the executant of the deed is required to

pay court fees taking into account the valuation of the

property mentioned in the instrument.

3. Heard Mr. P.K.Lenka, learned counsel for the plaintiff-

petitioner. There was no appearance from side of the

defendant-Opposite Parties despite valid service of notice.

4. Mr. Lenka would argue that though the plaintiff is

shown to have executed the sale deed yet it is his specific

case that the instrument purporting to be the power of

attorney was actually a gift deed. The same was done by

the defendant-Opposite parties without his knowledge,

express consent and by misrepresentation of facts, which

amounts to fraud. He has therefore sought for a

declaration that the deed is fraudulent, illegal, null and

void. As such despite being the purported executant the

plaintiff, not actually being so, cannot be asked to pay

Court fees on the valuation of the property involved in the

instrument. Mr.Lenka further argues that the judgment

cited by the plaintiff were brushed aside only by holding

that the same do not apply to the executant of the

instrument without examining whether, in the facts of

the case the plaintiff could at all be treated as the

executant.

5. The facts of the case being as narrated above do not

require reiteration. It would suffice to quote the relief

claimed by the plaintiff in the plaint which is reproduced

below:

"In the circumstances, this Hon'ble court may kindly be graciously pleased to admit this Civil Miscellaneous Petition and after hearing the counsel for both the parties be pleased set-aside the impugned order dated 16.12.2023 (under Annexure-

5) directing the learned trial court to admit Civil suit No. 1022 of 2023 without demanding ad-volerum court fees on the valuation set forth in the Registered gift deed Gift deed No. 10392202642 dated 08.04.202 obtained by the Opp.Parties by committing fraud and misrepresentation in the garb of execution of the registered power of attorney in respect of the suit land and residential dwelling house of the petitioner for the interest of Justice. And/Or Pass such or such or such other order/orders direction/directions as may be deemed just and proper in the present facts and circumstances of the case. And for this act of kindness, the petitioner as in duty bound shall ever pray."

It is well settled that the question of Court fee must be

considered and determined in the light of allegations

made in the plaint. The judgment of this Court in the

case of Akhatra Malidevi vrs. Chandrasekhar Nayak,

AIR 1977, ORI 61 may be referred to in this regard.

6. Considering the case at hand on the anvil of the above

proposition of law and reading of the plaint in its entirety

reveals that the case of the plaintiff is that the gift deed

dated 08.04.2022 was obtained by the defendants by

committing fraud and mis-representation taking

advantage of his depressed state of mind and further that

the same has not yet been acted upon. It is thus alleged

that the so-called gift deed is a nominal and paper

transaction having no force of law as the plaintiff

continues to possess the property.

Thus, it appears from the plaint that the plaintiff had

been to the registration office to execute a deed of power

of attorney and by exercising fraud the defendants

managed to take the impugned deed of gift. The contents

of the document, according to the plaintiff, were never the

version of the plaintiff and the same were nothing but the

outcome of misrepresentation of facts. So, the character

of the impugned document is under challenge in the

instant suit. In other words, the plaint suggests that the

plaintiff had not executed the impugned deed of gift.

Thus, the plaintiff's challenge is with regard to the

character of the impugned document. According to him,

the deed is a void document which is therefore, non-est

in the eye of law. In a situation like this, the plaintiff is

not required to seek its cancellation. In the case of

Suhrid Singh @ Sardool Singh vrs. Randheer Singh,

AIR 2010 SC 2807 the Supreme Court has held that

where the executant of deed wants to have it annulled, he

must seek cancellation of the deed.

In the case of SM. Rajani Bala Rakshit vrs. Biswanath

Rakshit and Ors., AIR 1981 Cal 189 it is held as follows;

"12. Relying on these decisions Mr. Bagchi argued that it was clearly unnecessary for the plaintiff to have asked for setting aside the document or for cancellation. She was entitled to sue for partition basing her claim on the original title, ignoring the transfer which she never executed. This argument is not without substance. The legal position would have been different had the plaintiff complained that by fraudulent representation she was induced to enter

into the transaction of whose nature however she was aware or that there had been fraud with reference to the terms of the deed or the contents thereof. In such a case it would have been necessary to sue to set aside the deed. But here the complaint of the plaintiff its totally of a different character namely, that it was represented to her that she was executing a power of attorney only. There is a distinction between misrepresentation as to the character of a deed and misrepresentation as to its contents. In the former case the transaction is void and not merely voidable.

XX XX XX

15.In the Lahore case it was further observed that the question whether the plaintiff is or is not a party to the deed in question does not furnish a satisfactory or conclusive test for determining the Court-fee payable.

XX XX XX

18.In the instant case, we have found that the plaint assertion plainly is that she was given to understand that a power of attorney was being done and she lent her signature on such representation. Therefore, in law, there was no valid execution, the mind of the applicant not having accompanied her signature. Such a case, if proved, would render the deed void. In this case the misrepresentation is both as regards the contents as well as to the character of the document, and as such the transaction is wholly void. In such a suit it is not necessary to seek a relief of setting aside the document and no consequential relief is implicit in the relief asked for."

Thus, where the executant challenges a deed as to its

character and proves the same the deed becomes a void

document. In a suit of this nature the plaintiff is required

to value the suit as per the relief, sought in the plaint and

not on the market price of the subject-matter or as per

the price mentioned in the document. This is what has

been done in the present case. The Court below has not

kept this in mind while holding that the plaintiff being

the executant of the deed has to pay Court fees on the

valuation of the property involved in the deed. This Court

is unable to concur with the reasoning of the Court below

for the reason that the plaintiff has not come forward to