Jagdish Bhai Patel vs Raunak Patel

This petition has been filed by the petitioner being aggrieved with the order dated 18.1.2023 passed in Civil Suit No.14-A/2021 by the Third Additional District Judge, Rajnandgaon, whereby, the application preferred by the respondents/defendants 2, 3 & 4 under Order 7 Rule 11 of the CPC has been partly allowed and the petitioner/plaintiff has been directed to pay the ad-valorem court fees in accordance with the value of the impugned registered gift deed dated 11.3.2016 within a period of one month, failing which, the plaint shall be rejected.

Brief facts of the case are that the petitioner/plaintiff filed a civil suit stating that the respondent/defendant No.1 is the real son of the petitioner and a registered gift deed was executed by him on 11.3.2016 in favour of respondent No.1 with a condition that respondent No.1 shall not further alienate the said property. In breach of the said condition, respondent No.1 sold the suit property to respondents 2 & 4 vide sale-deed dated 8.9.2016. Hence, a suit was filed for declaration and permanent injunction and also for declaring the impugned gift deed and the said sale-deed as null and void. In such civil suit, respondent/defendant No.1 filed an application under Order 7 Rule 11 of the CPC and raised an objection regarding valuation of the suit and also that the suit was not properly stamped. After hearing on the application, the impugned order has been passed and an opportunity has been granted to the plaintiff/petitioner to correct the valuation of the suit and also to pay the requisite ad-valorem court fees as per the valuation of the gift-deed.

Learned counsel for the petitioner would submit that the impugned order is not sustainable as the learned trial Court has directed for payment of ad-valorem court fees on the impugned gift deed dated 11.3.2016. He submits that since the gift-deed has been executed without any consideration, payment of ad valorem court fees is not required and further, the petitioner/plaintiff has paid the fixed court fees as per the schedule. Hence, he prays to allow the petition and quash the impugned order.

Per contra, learned counsel for the State would support the impugned order and submit that since the gift deed is a registered document with a presumption that it was validly executed, it is for the parties to challenge the genuineness of the transaction to show that the transaction is void. The said ratio has been laid down in the judgment rendered by the Hon’ble Supreme Court in the matter of Jamila Begum (Dead) Through Legal Representatives Vs. Shami Mohd. (Dead) Through Legal Representatives and another, (2019) 2 SCC 727. Further, learned counsel places reliance on the judgment rendered by Hon’ble the Supreme Court in the matter of Suhrid Singh alias Sardool Singh Vs. Randhir Singh and others, (2010) 12 SCC 112 and submits that since the petitioner/plaintiff is a party to the impugned gift deed, he is required to seek cancellation of the deed. He submits that the sale-deed is not void ab initio and the petitioner/plaintiff was required to pay ad-valorem court fees. Hence, learned counsel submits that the impugned order is just and proper, which does not call for any interference.

Heard learned counsel for the parties and also perused the documents annexed along with the petition.

In Suhrid Singh alias Sardool Singh (supra), it has been categorically held that 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 material observation made vide para 7 reads thus :

“7. 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. 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.”

Reverting back to the facts of the case, in view of the aforesaid legal proposition, when we examine the facts of the present case, it appears that since the petitioner/plaintiff is a party to the impugned registered gift-deed and when a executant of a deed wants the same to be annulled, he has has to seek cancellation of the deed and in such a situation, the plaintiff is required to pay the ad-valorem court fees as provided under Section 7(iv)(c) of the Court Fees Act.

For the foregoing, this Court is of the opinion that there is no adversity, illegality or infirmity in the impugned order requiring interference of this Court by invoking its supervisory jurisdiction under Article 227 of the Constitution of India.

The petition being bereft of any merits is liable to be and is hereby dismissed.