Manzoor Ahmed vs Jaggi Bai and Others

Arun Mishra, J.

Writ petition has been filed as against order dated 25-3-2009 passed by the Trial Court rejecting an application filed by the defendants under Order 7 Rule 11 of CPC to reject the plaint on the ground that Trial Court was not having pecuniary jurisdiction as well as adequate Court fees was not paid.

The plaintiff/respondent has filed the suit for declaration of title and confirmation of possession. Prayer has also been made to declare the sale deed dated 20th September, 2007 as null and void. Prayer for permanent prohibitory injunction has also been made.

Plaintiff has averred that plaintiff is the Bhumiswami of the land in question. Her age is 100 years, she is disabled also. Plaintiff No. 2 is residing with her and looking after agricultural operation. Plaintiff wanted to obtain the loan under the Kisan Credit Scheme for improving fertility of the land. She was assured by the defendants that for performing formalities, she would have to sign certain documents. Under the guise of processing the papers of Kisan Credit Scheme, a sale deed was got executed which she had never executed. She has lodged objection on coming to know of the execution of sale deed and also lodged report at PS, Majhgawan. She has never sold the land and fraud was played. There was no question of receipt of consideration.

In the application filed under Order 7 Rule 11, CPC, it was submitted that suit has not been properly valued, ad valorem Court fees was required to be paid on consideration mentioned in the sale deed of Rs. 2,29,000. Trial Court has rejected the application, hence the petition.

Shri B.P. Sharma, learned Counsel appearing for petitioner has submitted that it is necessary to seek consequential relief of cancellation of sale deed as the plaintiff is a party to the document, thus, she was bound to make the payment of ad valorem Court fees. He has referred to certain decisions to be referred later.

Shri Pushpraj Agrawal, learned Counsel appearing for respondents has supported the impugned order.

The main question for consideration is whether ad valorem Court fees is required to be paid. Document is shown to be void not voidable. Plaintiff has averred that she was never told about the sale deed which has been obtained by playing fraud. She never intended to execute the sale deed, she wanted to obtain the loan and taking the advantage of her advanced age and disability, sale deed was obtained. No consideration was paid. The averments made in the plaint indicate that document is shown to be void not voidable. There is difference in incidence of payment of Court fees in case document is voidable at the instance of executant ad valorem Court fees is required to be paid, not in the case of void document in such cases injunction which has been prayed flows from the relief of declaration. In case of void document, it is not necessary to seek the relief of cancellation of document itself, it is only in the cases of voidable documents, it is necessary to claim such a relief. This question was considered by this Court in Pratap and Anr. v. Punia Bai and Ors. 1976 JLJ 703, thus:

Learned Counsel for the applicant relied mainly on the Full Bench decisions of this Court in Santoshchandra and Ors. v. Gyansunder Bai 1970 JLJ 290 : 1970 MPLJ 363 (FB). It was held in that case that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, he must seek the relief of having that decree, agreement, instrument or liability set aside and he is not entitled to a declaration simpliciter in such cases. This decisions was followed in Sunderbai v. Manohar Singh Yadav 1974 JLJ 75. In that case, plaintiff had filed a suit for a declaration and for permanent injunction alleging that the sale deed in question was got executed by her by playing fraud. The plaintiff was held liable to pay an ad valorem Court fees u/s 7(c) of the Court Fees Act. From the aforesaid decisions it is clear that where a person who is party to an agreement or transaction and his allegation is that it is not binding on him because it was obtained by misrepresentation or fraud, it is necessary for him to seek the consequential relief of setting aside such agreement or transaction and as such the suit falls within the purview of Section 7(c) of the Court Fees Act. But the question of avoiding an agreement or an instrument arises only where it is voidable. If it is wholly void a mere declaration that it is so, is sufficient and it is not necessary for the plaintiff to seek the relief of setting aside something which has no existence in law. It is not necessary to ask for relief of setting aside an agreement or an instrument which is wholly void.

The question whether the suit is really one for a declaration with the consequential relief or not has to be determined by looking to the pleadings of the plaintiff only, vide AIR 1949 211 (Nagpur) . If we carefully examine the allegations in the plaint it would appear that the case of the plaintiff is that she did not execute the sale deed in question, that she did not receive any consideration of the sale and that she was not a party to any document of sale. From these allegations it would appear that there was no sale at all and the plaintiff is merely seeking a declaration that she did not execute the sale deed in question and thus did not transfer any property to the defendants. As such it is not necessary for her to seek relief of setting aside the sale deed in question, because, as pointed out above, the question of seeking the relief of setting aside something which has no existence in law, does not arise. In such a case bare declaration would suffice.

Voidable transfer remains valid until avoided and, therefore, it is necessary to avoid it by seeking the relief of setting it aside. But a transaction, which is void ab initio, must be deemed to have never taken place. It is not to be regarded as an alienation which is perfect till it is set aside. There is a clear distinction between a fraudulent misrepresentation as to the character of a document and as to its contents. Where the misrepresentation is both as to contents as well as character of the document, the transaction is wholly void.

It depends upon the averments made in each case in the plaint whether ad valorem Court fees is payable or not. Court has to find out whether a transaction is alleged to be "void" or "voidable". In case of void document, it is not necessary to seek the relief of cancellation of document. Similar view was taken by Nagpur High Court in Secretary of State v. Dadoo Ghanshyamsingh Gupta and Ors. AIR 1937 Nagpur 14. It has been laid down that if on averments made in the plaint, the substantial relief could not be other than one for a declaratory decree and it is coupled with another relief, which follows naturally in the wake of the declaration, then the case must be regarded as falling within the ambit of Section 7(iv)(c). This Court in Ashok Kumar Gehani and Anr. v. Ramhet Agrawal and Anr. 2008 (1) MPLJ 116 has relied upon Pratap and Anr. v. Punia Bai and Ors. (supra) and came to the similar conclusion. In Smt. Sabina alias Farida Vs. Mohd. Abdul Wasit, , relief of injunction was not consequential relief, it was claimed because of settled possession of plaintiff, thus, ad valorem Court fees was not required to be paid. In the instant case also, plaintiff is claimed to be in possession, she is not claiming relief for possession, thus, it could not be said that ad valorem Court fees is required to be paid. When declaratory relief is the main relief has also been considered in Johan Ram v. Dasmat Bai 1982 MPWN 464, Vibhuti Narain Singh Vs. Municipal Board, Allahabad, , Bhupat Singha and Others Vs. Jnanendra Kumar Chowdhury and Others, , Jatindra Nath Nandi and Others Vs. Krishnadhan Nandi and Another, , Balaram Mandal Vs. Sahebjan Gazi and Others, , Burjor Pestonji Sethna Vs. Nariman Minoo Todiwalla and Others, and in Messrs. Kalla Surayya and Sons represented by Kalla Venkataraju v. Province of Madras represented by the Collector of East Godavari at Kakinada and Anr. AIR 1949 Mad 778.

Petitioner''s Counsel has relied upon Division Bench decision of this Court in Shyamacharan Paul and Another Vs. Roopali Promoters and Construction and Others, , in which on the averments made, it was held by Division Bench of this Court that consequential relief of cancellation of sale deed was necessary, declaration would not suffice. The ratio has no application on the facts of the instant case. Petitioner''s Counsel has also relied upon decision in Mohammad Jameel Khan and Others Vs. Miththu Lal and Others, . We are unable to subscribe to the aforesaid view as it is trite law that in the case of void document it is not necessary to seek the relief of cancellation of document. In our opinion, the order passed by the Trial Court is proper in the facts of the instant case.

Resultantly, writ petition being devoid of merits deserves dismissal, same is hereby dismissed. No costs.