Madhya Pradesh High Court
Smt. Gangesh Kumari Kak vs The State Of Madhya Pradesh on 24 January, 2018
W.P. No.4995/2015 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.4995/2015
Smt Gangesh Kumari Kak Vs. Stae of M.P. & Others.
Indore, dated 24.01.2018
Parties through their counsel.
The petitioner before this Court has filed the present
petition being aggrieved by order dated 19.01.2015 passed by
the IXth Additional District Judge, Indore in Civil Suit No.1-
A/2013.
The facts of the case reveal that the plaintiff has filed a
civil suit for declaration and for grant of permanent injunction
seeking a declaration that the sale deed bearing No.1-A/1150
dated 13.10.2011 has been registered in violation of Section
19 and 20 of the Registration Act and Section 17 of the Stamp
Duty Act hence void ab initio and a nullity. It is also an
undisputed fact that the plaintiff is not a party to the sale deed,
and therefore, presented a plaint on a fixed court fee of
Rs.2,000/- seeking a relief of declaration as per Article 17(III)
of the Schedule of the Court Fees Act, 1870.
The defendants have raised an objection in respect of
maintainability of suit and a prayer was made for issuance of
a direction to the plaintiff to pay the ad valorem court fee.
The trial Court has decided the issue and by an
impugned order dated 19.01.2015, the trial Court has directed
the plaintiff to pay ad valorem court fee.
Shri Sethi, learned senior counsel for respondents No.9
and 10 has argued before this Court that plaintiff has rightly been directed to pay ad valorem court fee, as he has not said that the sale deed is not binding upon him. His contention is that the trial Court was justified in passing the impugned order. It has also been stated that virtually it is a case of cancellation of sale deed under Section 31 of Specific Relief W.P. No.4995/2015 2 Act, and therefore, ad valorem court fee is required to be paid.
The other respondents have adopted the arguments canvassed by learned senior counsel.
This Court has carefully gone through the plaint as well as the impugned order passed by the Court below. Undisputedly, the plaintiff is neither the executant of the sale deed nor a party to the sale deed. A similar question arose before this Court in the case of Ajay Pratap Singh and Others Vs. Kuldeep Singh and Others reported in 2013(2) M.P.L.J. and this Court in paragraph 8 to 15 has held as under:-
"8. In Santosh Chandra (supra), the Full Bench of this Court opined as under:--
"But, however, where a plaintiff is not a party to such a decree, agreement, instrument or liability and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the property. The matter may be different if he is not in possession of the property. In that event, the proviso to section 42 of the Specific Relief Act might be a bar to the tenability of a suit framed for the relief of declaration simpliciter. But that would be a different aspect. All the same, if the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay Court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-Fees Act."
Another Full Bench of this Court considered this judgment in Sunil (supra). In Ambaram (supra), the Indore Bench by relying Santosh Chandra (supra), opined that when plaintiff is not party to sale deed and possession of disputed land is with the plaintiff, no ad valorem Court fee is required to be paid. In the present case, in the pleadings, the plaintiff has specifically pleaded that he is in possession. Interestingly, in a recent judgment the Division Bench of this Court in Ambika Prasad and others Vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi and another, 2011(2) M.P.H.T. W.P. No.4995/2015 3 488 (DB) = 2011 (3) MPLJ 184, again considered the Full Bench judgment in Sunil (supra).
9. Pausing here for a moment, it is profitable to quote a relevant para from the judgment of Supreme Court in the case reported in 2010 AIR SCW 3308, Suhrid Singh Vs. Randhir Singh. The relevant portion of the judgment reads 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' 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."
10. By way of the above Illustrations 'A' and 'B', the Supreme Court has answered the issue in a very simple manner that where the executant of the sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem Court-fee on the consideration stated in the sale deed is payable.
11. The Apex Court earlier in Government of Orissa Vs. Ashok Transport Agency, (2002) 9 SCC 28, explained the distinction between the meaning void and voidables acts. In that case, it was held that one type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same, no declaration is necessary as law W.P. No.4995/2015 4 does not take any notice of the same and they can be disregarded in collateral proceeding. As per the said judgment, the other type of void act like transaction against a minor without being represented by a next friend is a good transaction against the whole world but if the minor decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding, the transaction becomes void from the very beginning. The Apex Court referred to yet another type of void act which may be not a nullity but for avoiding the same a declaration has to be made. It observed that voidable act is that which is a good act unless avoided for instance if a suit is filed for declaration that a document is fraudulent or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it.
12. In the present case, admittedly the plaintiff is not the executant of the sale deed sought to be declared as void. Accordingly, in view of Suhrid Singh (supra), the plaintiffs case is covered by the underlined portion quoted above and is covered by Example 'B'.
13. In Ambika Prasad (supra), the Division Bench has taken note of the Full Bench judgment rendered in Sunil (supra) and then observed that the Full Bench in Sunil (supra) has not taken note of Suhrid Singh (supra), and if the said judgment of the Supreme Court would have been brought to the notice of the Hon'ble Judges of the Full Bench, in all probability, they too would have taken the view which was taken in Ambika Prasad (supra).
14. In view of the judgment of the Supreme Court in Suhrid Singh (supra), the case of the plaintiff is on a different footing qua the case of a litigant who is party to a sale deed. Since plaintiff is not a party to the sale deed and is only seeking a declaration that sale deed be declared null and void qua him, his case is on different footing. In that eventuality, as per Suhrid Singh (supra), he is not required to pay ad valorem Court-fee. Apart from this, in Sunil (supra) also, the Full Bench opined that ad valorem Court-fee is not payable when the plaintiff makes an allegation that instrument is void and hence not binding upon him.
15. In view of the binding judgment of the Supreme Court in Suhrid Singh (supra), followed by Division Bench judgment, in my opinion, the Court below has not committed any error in passing the impugned order. Accordingly, I find no reason to interfere in the impugned order. Petition sans substance and is hereby dismissed".
W.P. No.4995/2015 5In similar circumstances, this Court has held that since plaintiff is not a party to the sale deed, no ad valorem court fee is payable by him.
In another matter decided by Full Bench of this Court in the case of Sunil and Others Vs. Awadh narayan and Others reported in 2010(4) M.P.L.J., in paragraph 9 to 16 has held as under:-
"9. The Apex Court in Prem Singh vs. Birbal, 2007(1) MPLJ (S.C.) 1 = (2006) 5 SCC 353 considering the question held that when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law and it would be nullity.
10. A similar view has been taken by the Apex Court in Ranganayakamma vs. K. S. Prakash, (2008) 15 SCC 673 wherein the Apex Court held that voidable transaction are required to be avoided while void transaction are not required to be avoided. When a contract is said to be voidable by reason of any coercion, misrepresentation or fraud particulars thereof are required to be pleaded. That void document is not required to be avoided whereas voidable document must be. The position may have been different in respect of orders, judgments and decrees of the Courts.
11. The Apex Court considering similar question in Sneh Gupta vs. Devi Samp, 2010(1) MPLJ (S.C.) 70 = (2009) 6 SCC 194 held that if an order is void or voidable, the same must be set aside. Thus, the compromise/consent decree, which is as good as a contested decree even if void was required to be set aside. If the compromise has been accepted in absence of all the parties, the same would be void and the decree based thereupon must be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. A consent/compromise decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable.
12. A Division Bench of this Court in Manzoor Ahmed vs. Jaggi Bair and others, 2009 (4) MPLJ 182, considering the question held that the question of payment of ad valorem court fee depends upon the averments made in the plaint. The Court has to find out whether transaction is alleged to be void or voidable. It W.P. No.4995/2015 6 depends upon the averments made, in each case, in the plaint whether ad valorem court-fee is payable or not.
The Court is to find out whether transaction is alleged to be void or voidable. In case of void document, it is not necessary to seek the relief of cancellation of the document. In that case, plaintiff filed a suit for declaration of title and confirmation of possession. She had not claimed the relief for possession, so it was held that ad valorem court-fee was not required to be paid. The averments made in the plaint had indicated that the document in question was shown to be void not voidable, so ad valorem court-fee was not required. In case the document is voidable at the instance of executant, ad valorem court-fee is required to be paid but not in the case of void document. In such case, injunction which was prayed, flows from the relief of declaration.
13. Now in the light of aforesaid settled position by the Apex Court and Full Bench of this Court, the first question referred by the Division Bench may be examined. When the plaintiff makes an allegation that the instrument is void and hence not binding upon him, and if a declaration simplicitor is prayed then he is not required to pay ad valorem court fee and a fixed court- fee under Article 17, Schedule-II of the Court Fees Act will be payable. This position is well settled by the Apex Court in Ningawwa (supra) and continued till the decision in Sneh Gupta (supra). The void document which is not binding upon the plaintiff needs to be avoided and in this regard a declaration is sufficient. The Full Bench of this Court in Santoshchandra (supra) has clarified the position and we respectfully agree with the law laid down by the Full Bench in Santoshchandra (supra).
14. In view of the aforesaid discussion, there is no doubt that if plaintiff makes an allegation that the instrument is void and hence not binding upon him then ad valorem court-fee is not payable and he can claim declaration simplicitor for which court-fee under Article 17(iii) of Schedule-II would be sufficient. The question No. 1 is answered accordingly.
15. Now second question may be seen in respect of the judgment rendered in Narayan Singh (supra). In Narayan Singh, the plaintiffs had filed suit with the averment that the sale-deed in question was illegal and void. It was a forged document and also without consideration. The plaintiffs were in possession of the land, a relief for declaration was prayed and a fixed court-fee was paid. The defendants moved an W.P. No.4995/2015 7 application under Order 7, Rule 11 of Civil Procedure Code for rejecting the plaint on the ground that though the plaintiffs had assailed the sale-deed but had not paid ad valorem court-fee which ought to have been paid. The trial Court had rejected the application which order was assailed before the Division Bench. The Division Bench held that the case of the plaintiffs was that the document was a forged one and it does not bear the signature of Sitaram though Sitaram was party to the sale-deed. Plaintiffs had claimed their possession over the suit land. The suit was for permanent injunction and declaration. When the document was alleged to be illegal, void and executant had not signed the document, it was not necessary for them to make payment of ad valorem court-fee. The document in the plaint was shown to be void and not voidable, so ad valorem court-fee was not required and a fixed court- fee was found to be adequate. 3 The Division Bench further held that if the document, as per averments made in the plaint, is pleaded to be a void document so it is not necessary for the plaintiffs to avoid document by claiming relief to set aside and a fixed court-fee under Article 17(iii), Schedule-II of the Court Fees Act was sufficient. In the light of the discussion, while deciding the question No. 1, we have also held so and accordingly we find that the law laid down by the Division Bench in Narayan Singh (supra) has been correctly laid down". The Full Bench of this Court has held that when the plaintiff makes an allegation that the instrument is void and hence not binding on him and a declaration simplicitor is prayed, then he is not required to pay ad valorem court fee. In the present case, again a declaration simplicitor has been sought by the plaintiff.
Resultantly, this Court is of the opinion that the plaintiff is not certainly required to pay ad valorem court fee. In the case of Suhrid Singh alias Sardool Singh vs Randhir Singh and Others (2010) 12 SCC 112, the Apex Court in paragraph 5 to 10 has held as under:-
5. Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab (`Act' for short). Section6 requires that no document of the kind W.P. No.4995/2015 8 specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)
(c) of the Act which provides :
"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought:
Provided that minimum court-fee in each shall be thirteen rupees.
Provided further that in suits coming under sub- clause (c), in cases where the relief sought 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 this section."
The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.
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 W.P. No.4995/2015 9 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. 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.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
8. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments".
In similar circumstances, the Apex Court has held that W.P. No.4995/2015 10 the payment of ad valorem court fee is not required.
Resultantly, the impugned order is hereby set aside. The question of payment of ad valorem court fee by the plaintiff doesn't arise.
Accordingly, the petition stands allowed. The trial Court is directed to decide the suit, as the suit is of the year 2012, as expeditiously as possible preferably within a period of six months from the date of receipt of certified copy of this order.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Ravi Prakash Digitally signed by Ravi Prakash DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=8c41d94e3639781a0083754cf33213a20de4d0ca6c70fb2b34379511 34024cc4, cn=Ravi Prakash Date: 2018.01.27 12:38:34 +05'30'