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12. In Siddha Construction (supra), the learned single Judge has opined that for the value of the Court Fee payable by the plaintiff the averments in the plaint alone are to be considered. In the said case, it was observed that the plain- tiffs had not executed the sale deed and did not receive any sale consideration and they had not alienated the property in favour of any one. In the said case, the third defendant was the petitioner in the revision petition. The suit was filed to declare that the sale deed executed by the first defendant in favour of the third defendant was null and void. The High Court referred to the decision in Alamelu v. Manickammal4 wherein it has been held that the plaintiff is not a party to the sale deed and when he seeks only a declaration that the impugned sale deed is null and void, it is subject to the value of the suit under Section 25(d) of the Act. The learned single Judge also quoted a passage from Gnanambal Ammal v. Kannappa Pillai5 wherein it has been held:

16. Chellakannu v. Kolanji7, dealt with a civil revision that was filed by the plaintiff assailing the order of the trial court directing the plaintiff to pay the court fee under Section 6 2007 (1) CTC 300 7 AIR 2005 Mad 405 40 of the Act. The narration of the facts in the plaint was ad- verted to by the High Court and for proper appreciation of the controversy that has been raised in the instant case, we may reproduce the same:

“… the Suit Property belonged to his Father- Pichamuthu. Pichamuthu had two wives, through whom he had Three Sons. Earlier, there was Parti- tion in the family of the Plaintiff on 04.08.1971 wherein the Plaintiff and the Sons through the First Wife have partitioned the family properties. There was further partition between the Plaintiff and his Brothers in 1977. Item 1 of the Suit Property was allotted to one Poomalai. Items 2 and 4 - S.Nos.155/3 and 339/13A were allotted to the Plaintiff. First Defendant is the Wife of Shanmugam. Third Defendant has been keeping the First Defen- dant as his concubine. The Third Item was allotted to the Plaintiff's Sister. The Third Defendant is the Third Party. With the help of the First Defendant, the Third Defendant secured the Suit Properties - Item Nos.1 to 3 under a false representation that the Plaintiff is executing a Will in favour of the First Defendant. On that mis-representation, Plaintiff's thumb impression was obtained and two Sale Deeds dated 05.06.1995 and 23.08.1995 are said to have been obtained. Those Sale Deeds obtained from the Plaintiff under false representation is not binding on the Plaintiff. Hence, the Plaintiff has filed the Suit for Declaration that the Sale Deeds are not binding on him and for Permanent Injunction, restraining the Defendants from in any way interfering with the Plaintiff's peaceful possession and enjoyment of the Plaint Schedule Items I, II and IV.”

17. The further stand taken by the plaintiff was that the sale deeds were obtained from him under fraud and hence, suit had been filed for declaration that the sale deeds were not binding on the plaintiff and since the suit was not filed for cancellation of the sale deeds, the defendants could not insist the plaintiff to pay the court fee under Section 40 of the Act. The trial court recorded a find that the sale deeds had been executed by the plaintiff himself and prima facie the sale deeds were binding on the executants and when there is a prayer to declare the sale deeds as invalid, it tanta-

“Where the executant of a deed wants it to be an- nulled, 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/con- veyance, can be brought out by the following illus- tration 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 execu- tant 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 con- sideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a dec- laration 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 the Sec- ond Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a decla- ration that the sale deed is invalid, but also the con- sequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.