Mahmudeen Khan Son Of Shri Munsarf ... vs Saboodeen Son Of Phauji
2021 Latest Caselaw 88 Raj/2

Citation : 2021 Latest Caselaw 88 Raj/2
Judgement Date : 6 January, 2021

Rajasthan High Court

Mahmudeen Khan Son Of Shri Munsarf ... vs Saboodeen Son Of Phauji on 6 January, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil First Appeal No. 743/2020

Mahmudeen Khan Son Of Shri Munsarf Khan
                                                                  ----Appellant
                                   Versus
Saboodeen Son Of Phauji
                                                                ----Respondent

For Appellant(s) : Mr. Bipin Gupta, Adv. through V.C. For Respondent(s) : Mr. Alok Chaturvedi, Adv. through V.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

06/01/2021

Heard on the reply to office objection No.3 submitted on

behalf of the appellant.

Counsel for the appellant submitted that the appellant is not

executant of the sale deed and he is also in possession of the

property in dispute, therefore, he has rightly paid the court fees as

paid in the suit before the trial Court.

In support of his contention, counsel for the appellant relied

upon the judgment passed by the Hon'ble Supreme Court in the

matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh &

Ors. reported in AIR 2010 Supreme Court 2807 wherein para 6

has held as under:-

"6. 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'

(2 of 2) [CFA-743/2020]

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. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."

Considering the judgment passed by the Hon'ble Supreme

Court in the matter of Suhrid Singh @ Sardool Singh (supra), the

defect No.3 pointed out by the registry is waived.