Chellakannu vs Kolanji

R. Banumathi, J.—This Civil Revision Petition is preferred against the Fair and Decretal Order dated 14.02.2003 passed by the District

Munsif, Jeyankondam in I.A. No. 396 of 2002 in O.S. No. 167 of 2002, allowing the Petition filed u/s 151, Order VII Rule 11(b) C.P.C,

directing the Plaintiff to pay the Court Fee u/s 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as the Act).

The Plaintiff is the Revision Petitioner.

Case of the Revision Petitioner is that the Suit Property belonged to his Father - Pichamuthu. Pichamuthu had two wives, through whom he had

Three Sons. Earlier, there was Partition 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 Defendant 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.

Denying the averments in the plaint, the Defendants have filed the Written Statement, stating that the Plaintiff has sold the Properties in Item No.

2 - S. No. 55/3B under a Sale Deed dated 23.08.1995 for Rs. 27,500/-. Item No. 2 was sold for the marriage expenses of the Plaintiff''s

Daughter - Jayanthi. Plaintiff has received the Sale Consideration of Rs. 27,500/-. Later, Item No. 2 was resold to the Fourth Defendant - Jayanthi

and she is in possession of Item No. 2. Likewise, Item Nos.3 and 4 - S. No. 55/4C and 339/13A were also sold for valid consideration under

Sale Deed dated 05.06.1995 and 24.01.1999. All the Sale Deeds executed for valid consideration are valid and binding on the Plaintiff. The

prayer seeking for declaration that the Sale Deeds are invalid amounts to cancellation of the Sale Deeds. Hence, the Court Fee paid u/s 25(d) of

the Act is not correct. The Court Fee ought to have been paid u/s 40 of the Act.

I.A. No. 396/2002:- The Defendants have filed this Petition u/s 151 and Order VII Rule 11(b) C.P.C to direct the Plaintiff to pay the Court

Fee u/s 40 of the Act or to reject the Plaint. In the supporting Affidavit, it has been averred that when the Plaintiff has admitted the Sale Deeds and

also admitted his thumb impression in the Sale Deeds, the Court Fee ought to have paid u/s 40 of the Act. Hence, the Plaintiff ought to have filed

the Suit for cancellation of the documents and the Court Fee is payable only u/s 40 of the Act.

The Application was resisted by the Plaintiff contending that the Sale Deeds were obtained from him under fraud and hence, the Suit has been

filed for declaration that the Sale Deeds are not binding on the Plaintiff. Since the Suit is not filed for cancellation of the Sale Deeds, the Defendants

cannot insist the Plaintiff to pay the Court Fee u/s 40 of the Act.

Upon consideration of the averments in the Petition and in the Counter Statement, the learned District Munsif has found that the Sale Deeds

have been executed by the Plaintiff himself and prima facie the Sale Deeds are binding on the Executant. Pointing out that the relief sought for - that

the Sale Deeds are invalid amounts to seeking for cancellation of the Sale Deeds, learned District Munsif held that the Court Fee paid u/s 25(d) of

the Act is wrong and the lower Court directed the Plaintiff to pay necessary Court Fee u/s 40 of the Act.

Aggrieved over the direction to pay the Court Fee u/s 40 of the Act, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for

the Revision Petitioner has submitted that when no relief is sought for for cancellation of Sale Deed, directing the Plaintiff to pay the Court Fee u/s

40 of the Act is erroneous. Learned counsel for the Petitioner has submitted that declaration is sought on the ground that document has been

obtained by the Defendants 1 and 2 under mis-representation and that the Court Fee is correctly paid u/s 25(d) of the Act. It is further submitted

that the documents in favour of Defendants 1 and 2 is not binding on the Plaintiff and has been rightly ignored by the Defendant, who is the owner

of the Property and as such there is no need to seek for cancellation of the documents. In support of his contention, learned counsel for the

Revision Petitioner has relied upon the decisions reported in AIR 1939 MAD 894 and 1939 I M.L.J. 702.

Refuting the averments, learned counsel for the Respondent has submitted that the case of the Plaintiff is only on the basis of mis-representation

and that the prayer of Declaration amounts to cancellation of the Sale Deeds. It is further submitted that when both the documents are executed by

the Plaintiff himself, the prayer seeking for Declaration that the Sale Deeds are invalid amounts to cancellation of the Sale Deeds and the lower

court has rightly directed the Plaintiff to pay the Court Fee u/s 40 of the Act. It is further submitted that when it is not the case of the Plaintiff that

the Sale Deeds are forged documents, the Plaintiff cannot ignore the same and seek for declaratory relief that the Sale Deeds are invalid. In

support of his contention, learned counsel for the Respondent has relied upon the decision reported in In Re: S.R.M. AR. S. SP. Sathappa

Chettiar, and In Re, Thirupathiammal AIR 1956 MAD 179.

Upon consideration of the submissions by both parties, pleadings and other materials on record, the following points arise for consideration in

this Revision:

(i) Whether in the Suit filed for Declaration that the Sale Deeds are invalid, Court Fee paid u/s 25(d) of the Act is incorrect?

(ii) Whether the impugned order directing the Plaintiff to pay the Court Fee u/s 40 of the Act suffers from any infirmity warranting interference?

The Sale Deeds are executed by the Plaintiff along with others as noted below:-

(1) (2) (3)

Item No. 2 S. No. 55/3 0.30.0 H -0.76 cent 23.08.1995 for Rs. 27,500/-

Item No. 3 S. No. 55/4C 0.12.5 - 30 cents 05.06.1995 for Rs. 6,750/-

Item No. 4 S. No. 339/13A - 0.6 1/2 cents 21.04.1999 ......

It is not as if the Plaintiff alone has executed the above Sale Deeds. Regarding Item No. 4, the Plaintiff has executed the Sale Deed along with

his Daughter - Jayanthi and Arjunan and Shanmugam, Son of Poomalai. Likewise, Sale Deed regarding Item No. 3 was executed by the Plaintiff

Arjunan and Shanmugam, who are the sons of Poomalai. Thus, the Plaintiff himself is a party to the Sale Deed; when the Party himself seeks to get

rid of the Sale Deeds in substance it amounts to Cancellation of Decree. The Plaintiff might seek to avoid the Sale Deeds if he is not a party to the

Sale Deeds. But, since the Plaintiff himself is a party to the Sale Deeds before he is suing for any relief, the Plaintiff must first obtain the cancellation

of the Sale Deeds.

The word ""Cancellation"" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are

not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before

getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suit is one for cancellation. in

the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the Plaintiff

cannot seek for any further relief without setting aside the Sale Deeds.

Contending that the Plaint averments are to be the guiding factor in determining the question of Court Fee, learned counsel for the Revision

Petitioner has relied upon the decisions reported in Neelavathi and Others Vs. N. Natarajan and Others, and Virudambal and 4 others Vs.

Kandasamy and 4 others, . Those cases relate to Partition suits. In partition suits, it is settled law that the question of Court Fee must be

considered in the light of the allegations made in the Plaint and the decision cannot be influenced either by the pleas in the Written Statement or the

final decision of the Suit on merits. The above principles applicable in a Partition Suit cannot be applied to the case in hand where astuteness is

employed by the Plaintiff to evade payment of proper Court Fee. The Plaint allegations cannot be accepted as it is. As discussed earlier, though

the Plaintiff has averred that the Sale Deeds are not binding on him, being a party to the Suit, in substance the Suit is one for cancellation of the

Sale Deeds.

In support of his contention that Court Fee payable is u/s 40 of the Act only in a suit for cancellation of the document, learned counsel for the

Revision Petitioner has relied upon the decision reported in Vellayya Konar and Anr. v. Ramaswami Konar and Anr. AIR 1939 MADRAS 894

wherein it has been held that the Court Fee is payable only under Article 17-A and not u/s 7(iv-A) (Court Fees Act 1870). The said Suit was

brought by Creditor u/s 53 of the Transfer of Property Act for Declaration that an alienation by the debtor is void against Creditors. In other

words, the said Suit has been filed by the Creditor, who was not a party to the documents to the alienation in question. In that view of the matter, it

was held that the Court Fee is not payable u/s 7(iv-A) of the said Act. The case in hand stands on a different footing. The Plaintiff, who is a party

to the document himself seeks to get rid of the documents executed by him and hence, Court Fee is to be paid u/s 40 of the Act.

The allegation on the Plaint in substance amounts to cancellation of the document. Though the prayer is couched in the form of seeking

declaration that the document is not valid and not binding, the relief in substance indirectly amounts to seeking for cancellation of the Sale Deed.

Learned District Munsif was right in ordering payment of Court Fee u/s 40 of the Act. This Revision Petition has no merits and is bound to fail.

For the foregoing reasons, the order of the District Munsif, Jayankondam dated 14.02.2003 in I.A. No. 396 of 2002 in O.S. No. 167 of

2002 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. The Revision

Petitioner / Plaintiff is directed to pay the Court Fee within two months from the date of receipt of a copy of this order, failing which the Plaint shall

stand rejected. The connected C.M.P. No. 4721 of 2003 is closed.