Madras High Court
Tmt. Kasthuri Radhakrishnan And 2 Ors. vs A. Radhakrishan And 4 Ors. on 12 October, 1993
Equivalent citations: 1996(1)CTC55
ORDER Rathnam, J.
1. This Civil Revision Petition has been preferred by the plaintiffs in O.S. No. 549 of 1989, Subordinate Judge's Court, Erode, against the order passed by the court below holding that the court-fee paid on the plaint under Section 25(d) of the Tamil Nadu Court fees and Suits Valuation Act, 1955 (hereinafter referred to as 'the Act'), is incorrect and that court-fee should have been paid under Section 40 of the Act. The first petitioner is the mother of petitioners 2 and 3 and the first respondent is the father of petitioners 2 and 3 and the husband of the first petitioner. In the plain-filed by petitioners, it had been stated that the first respondent the serving at Erode in 1989 and the petitioners wanted to acquired house property at Periyar Nagar in Erode under a Scheme of the Tamil Nadu Housing Board and inasmuch as the first respondent's father was then a government servant with greater chances of getting allotted a site, he made an application and he was allotted a house-site on leasc-cum- sale, According to the petitioners, the father of the first petitioner was prosperous textile merchant at Salem and was willing to contribute funds, while the monthly salary of the first respondent was inadequate even to meet the family expenses and the father of the first petitioner, out of his funds, contributed the amount payable under the lease-cum-sale agreement for the benefit of the petitioners and the real owners of the property acquired were, only the petitioners. The first respondent also obtained a loan for putting up the construction and the loan was discharged in monthly instalments from the salary of the first respondent and there was very little that was left to first respondent out of the salary for the sustenance of the family. In addition to the borrowed amounts, according to the petitioners, further amounts were also spent by the first petitioner by the sale of a portion of her jewels and other stridhana funds and the property had been acquired by the contributions of the petitioners and the first respondent was only a name lender. Owing to the pendency of proceedings in regard to the compensation awardable for the lands acquired, the site of the property had not been duly conveyed in respect of the allottees. While matters stood thus, the first respondent on 30-7-1987, entered into a fraudulent sale agreement with the second respondent agreeing to sell the property for Rs. 5.40 lakhs and taking advantage of the youth and inexperience of petitioners 2 and 3 and their implicit faith, obedience and regard for their parents, the first respondent obtained the signatures of second and third petitioners in the sale agreement even when the third petitioner was a minor. In collusion with the second respondent, the first respondent, according to the petitioners, had also induced petitioners 2 and 3 to subscribe their signatures to the agreement without knowing what the document really was. The first respondent, according to the plaint, did not have any absolute right or title or possession over the property and the agreement also was not entered into either for family necessity or for the welfare of petitioners 2 and 3 and the sale agreement was characterised as invalid and not binding on the petitioners. The petitioners further stated that all the respondents had colluded together and proposed to act in furtherance of the sale agreement which, according to the petitioners, was neither valid nor binding on them. The fourth respondent, during the pendancy of the suit, claimed to have taken possession of the suit property, as a tenant and the fifth respondent put forward a claim that he was the general power of attorney agent of the first respondent and the fifth respondent is the son of the second respondent and the fourth respondent is a very close and thick friend of the second respondent and they were, therefore, impleaded as parties in order to enable the petitioners to seek appropriate reliefs. The cause of action for the suit was stated to have arisen on 30-7-1987 when the first respondent fraudulently entered into the sale agreement with the second respondent and also obtained fraudulently the signature of petitioners 2 and 3. The reliefs prayed for in the suit were: (1) Declaration that the sale agreement dated 30-7-1987 created fraudulently by the first respondent in favour of the second respondent regarding the suit property is neither valid nor binding upon the petitioners; (2) Permanent injunction restraining the first respondent from executing any sale deed regarding the suit property in favour of the second respondent and from delivering possession of the property to the second respondent pursuant to the agreement and (3) for other incidental reliefs. The suit was valued at Rs. 400-and a court-fee of Rs. 30-50 was paid under Section 25(d) of the Act. On an objection being raised that the suit had not been properly valued for purposes of court-fees under Section 25(d) of the Act, that question was taken up by the Court below and it was held that the appropriate provision under which court-fee should be paid is Section 40 of the Act and not Section 25(d) and the court-fee paid was incorrect and time was given to make good the deficit court-fee in two weeks.
2. The main question that arises for consideration is whether the court below was right in the view it took that on the facts set out in the plaint in this case, court-fee should be paid under Section 40 of the Act, instead of Section 25(d) of the Act? It would, therefore, be necessary to set out Section 40(1) of the Act which as under:-
"40 Suit for Cancellation of Decrees, etc.:- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, "any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be-
if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property".
In this case, the relief prayed for is for a declaration that the sale agreement dated 20-7-1987 had been created fraudulently by the first respondent in favour of the second respondent and that the agreement is invalid and not binding upon the petitioners. To the agreement dated 30-7-1987, admittedly the first petitioner is not a party and therefore, there is no question of her praying for the cancellation of the agreement for sale. In Ponnammal alias Guruvammal and Ors. v. Kanthammal and Ors. , it has been laid down that though the word "document" is wide enough to comprehend all kinds of documents, strangers to the document can ignore the same and need not seek to set it aside. In view of this, in so far as the first petitioner is concerned, there is no question of the applicability of Section 40(1) of the Act. In regard to petitioners 2 and 3, it has been stated in the plaint that one of them, viz., third petitioner, was a minor even on the date of the agreement and if that be so, then there is no need for cancellation of the document at his instance. At best, in so far as the second petitioner is concerned, he could be regarded as a party to the document in respect of which the relief of declaration is found in the plaint had been prayed for. In this connection, it would be useful to bear in mind that when a person seeks to make out title which cannot be established without removing an instrument to which he himself is a party, then, irrespective of the garb in which the suit is dressed, its substantial character must be for the cancellation of the instrument. In this case, according to the plaint, the contribution for the acquisition of the property had been made by the father of the first petitioner and by the sale of the jewels of the first petitioner and by spending her other stridhana funds got by her from her parents. All that had been stated is that it was for the benefit of the daughter (not a party to the suit) of the first petitioner and sons of the first petitioner (petitioners 2 and 3). On the allegations in the plaint, it does not appear that there was any contribution as such by the second or third petitioners in order to enable them to claim title to property as such. In addition, it has to be pointed out that under Section 40(1) of the Act, in a suit for cancellation of a document, it must be such that it purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in immovable property. In the present case, under the agreement dated 30-7-1987, the first respondent along with petitioners 2 and 3 has purported to enter into an agreement for the sale of the property in favour of the second respondent. The agreement provides that the sale deed shall be executed either in favour of the second respondent or his nominees and recites payment of advance and also the handing over of certain documents. A further provision is also made that within three months thereof, steps should be taken to evict the tenant and that the sale deed should be executed within thirty days from the date on which the Housing Board executes a conveyance in favour of the first respondent on receipt of the balance of consideration. Thus, in substance, the agreement which is now sought to be declared as invalid and not binding on the petitioners is only an agreement to sell and nothing more and under Section 54 of the Transfer of Property Act, an agreement or contract for sale of immovable property, does not by itself create any interest in or charge on such property. In view of this, even on the footing that petitioners 2 and 3 being parties to the sale agreement may be obliged to seek the relief of cancellation of the agreement the nature of the agreement is such that it docs not purport or operate to create, declare, assign, limit or extinguish any right, title or interest in the immovable property. Only if the document sought to be cancelled is one which created, declares, assigns, limits or extinguishes, any right, title or interest in immovable property in terms of Section 40(1) of the Act, it may be necessary to seek the relief of cancellation of the document. Earlier, it had been pointed out how the agreement in this case does not by itself create any right, title or interest in favour of the second respondent or other persons, being only in the nature of an agreement for sale and under those circumstances, there was no need whatever for the cancellation of the agreement for sale at the instance of petitioners 2 and 3. The court below, was, therefore, in error in holding that the provisions of Section 40(1) of the Act stood attracted to this case and therefore, court-fee should be paid under that provision and not under Section 25(d) of the Act. The Civil Revision Petition is, therefore, allowed and the order of the Court below is set aside. There will be no order as to costs.