Kousalya Ramakrishnan vs B.S. Padmavathy and Others

S. Tamilvanan, J.—Heard the learned counsel for the petitioner. In spite of service of notice and substituted service, there was no

representation for the respondent and the respondent was also called absent. However, the order is passed on merits. This revision has been

preferred under Article 227 of the Constitution of India challenging the order passed in the Check Slip No. 216/XXVII/N in Diary No. 16 passed

in O.S. No. 212 of 2008 on the file of the Principal District Court, Thiruvallur.

The petitioner herein is the plaintiff in the suit in O.S. No. 212 of 2008 that was filed by the petitioner against the respondents herein seeking

declaration of title and other consequential reliefs. Mr. D. Selvam, learned counsel for the petitioner submits that the suit property was sold by way

of registered sale deed in favour of the petitioner herein. Learned counsel for the petitioner also drew the attention of this Court to the averments of

the plaint and submitted that the entire property was originally owned by the respondents 1 to 7. They sold 50% of the said property in favour of

the plaintiff herein through their power of attorney one Daleelullah Khan and another 50% of the property in favour of one Suresh Kumar Bothra

and his brothers. The petitioner/plaintiff, subsequently purchased the said 50% of the other property from Suresh Kumar Bothra and his brothers,

thereby, the petitioner/plaintiff became the absolute owner of the entire suit property. However, the respondents 1 to 7 executed a sale deed in

favour of the 9th respondent herein through their another power of attorney the 8th respondent herein against law by cancelling the sale deeds that

were executed in favour of the petitioner and the said Suresh Kumar Bothra and his brothers.

Learned counsel for the petitioner further submitted that the respondents 1 to 7 have no such right to cancel the sale deeds which were executed

by them through their power of attorney in favour of the petitioner in respect of 50% of the property and the vendor of the petitioner in respect of

the other 50% of the property. Challenging the cancellation deeds and the subsequent sale deed executed by the respondents 1 to 7 in favour of

the ninth respondent, the suit has been filed. According to the learned counsel for the petitioner, the sale deed executed in favour of the ninth

respondent by the respondents 1 to 7 through their power of attorney, the eighth respondent herein. Admittedly, the petitioner is not a party to the

cancellation deed and the subsequent sale deeds that were executed by the respondents 1 to 7 through the eighth respondent against law. On the

aforesaid circumstances, for challenging the cancellation deeds and fraudulent sale deeds executed by the respondents 1 to 7, in favour of the ninth

respondent, Court Fee need not be paid on the market value of the said properties.

In support of his contention, learned counsel for the petitioner relied on the decision in Siddha Construction (P) Ltd. Vs. M. Shanmugam and

Others, , wherein this Court (S. Rajeswaran, J.) has held that when the plaintiffs are not parties in the impugned sale deed relating to the suit

property, they need not pay Court-fees u/s 40(1) of the Tamil Nadu Court-fees and Suits Valuation Act (14 of 1955) and the payment of Court-

fees u/s 25(d) is proper.

Learned counsel for the petitioner drew the attention of this Court to various other decisions referred to by this Court in the earlier orders in

Gnanambal Ammal v. Kannappa Pillai, 1959 1 MLJ 353 wherein, this Court has held as follows:

Where a plaintiff''s case is that a document is sham and nominal, it need not be set aside, and the suit for relief on that footing is not one for

cancellation, so as to attract the application of Section 40 of the Madras Court-fees and Suits Valuation Act, 1955. But even in such a case, if the

plaintiff sues for cancellation he would have to pay Court-fee on that relief, whether it is necessary to have the deed cancelled or not.

Similarly, in Andalammal Vs. B. Kanniah, , this Court, observed as under:

Section 40 of the Act refers to the amount or value of the property for which the documents was executed"". The legislative intent is clear that the

basis for the purpose of valuation shall be the amount or value mentioned in the document sought to be cancelled. There is no warrant for ignoring

the plain language of the Section and holding that the value shall be the market value of the property.

It is a well settled proposition of law that for deciding the Court fees, the Court has to consider the total averments of the plaint and the relief

sought for in the suit. At this stage, the Court cannot go into the averments made in the written statement filed by the respondents/defendants in the

suit. As per the plaint averments, it has been categorically stated that the petitioner/plaintiff purchased 50% of the property that was owned by the

respondents 1 to 7 through their power of attorney and the balance 50% of the property has been purchased by the petitioner/plaintiff from the

subsequent purchaser, Suresh Kumar Bothra and his brothers, who had already purchased the same from the respondents 1 to 7 through their

power of attorney Daleelullah Khan, by way of registered sale deed.

As there was a transfer of immovable property in favour of the petitioner by way of registered sale deeds, the respondents 1 to 7 cannot say

that they were not aware of the sale deeds executed by their power of attorney in favour of the petitioner/plaintiff and his vendors and the

subsequent sale deed executed by their vendors, Suresh Kumar Bothra and his brothers. However, the respondents 1 to 7 unilaterally cancelled

the said sale deeds though the vendor of a property has no such power to cancel the sale deeds relating to immovable properties and execute

another sale deed through their another power of attorney, according to their whims and fancies. Admittedly, respondents 1 to 7 are not entitled to

cancel the sale deed executed through their power of attorney. After the unilateral cancellation of sale deed, the respondents 1 to 7 executed

another sale deed in favour of the 9th respondent herein, through their another power of attorney which cannot be accepted. If there is any sale

deed executed by any stranger fraudulently, the owner of the property is entitled to ignore the same. In the instant case, as per the case of plaintiff,

the respondents 1 to 7 have unilaterally cancelled the sale deeds executed by them through their Powers of attorney, such unilateral cancellation of

sale deed is not legally valid.

On the aforesaid circumstances, the petitioner/defendant who is not a party to the cancellation deed and subsequent sale deed, need not pay

Court Fee u/s 40(1) of the Tamil Nadu Court-fees and Suits Valuation Act (14 of 1955), for the market value of the property, as held by this

Court in various decisions and the petitioner/plaintiff is entitled to pay the Court-fee u/s 25(d) of the Court Fee Act as he was not a party to the

said sale deeds and therefore, this Court is of the view that the order passed in Check Slip No. 216/XXVII/N in Diary No. 16 relating to the suit

in O.S. No. 212 of 2008 on the file of the District Court, Tiruvallur, is against law which warrants interference by this Court, for invoking Article

227 of the Constitution of India. Having considered the facts and circumstances and the material papers available on record, I find it just and

reasonable to allow this revision. Accordingly, the Civil Revision Petition is allowed and the impugned order passed by the Court below in the

check slip is set aside. Since the suit is pending from the year 2008, the Court below is directed to dispose the suit according to law, within a

period of four months from the date of receipt of a copy of this order, uninfluenced by the findings of this Court, if any, in this order, without

seeking further extension of time. Consequently, connected miscellaneous petition is closed. No order as to costs.