Sawant Singh Rathore and Others vs Bhanwar Kanwar

Pratap Krishna Lohra, J.—Imploring annulment of the impugned order dated 12th of January, 2015, petitioner-defendants have laid this revision petition under Section 115, Code of Civil Procedure, 1908 (for short, ''CPC''). By the order impugned, Addl. District Judge No. 1, Bhilwara camp Gangapur has rejected their application under Order 7 Rule 11 CPC in a suit for declaration that gift-deed dated 28th March 2001 is null and void.

The brief facts of the case are that respondent-plaintiff instituted a civil suit against petitioners seeking declaration that the alleged gift-deed executed by her so called power of attorney Shri Sanwant Singh, first petitioner, in favour of his biological son second respondent Lavdev Singh Rathore for 1/4th part of agricultural land of Khasra No. 1692 may be declared null and void as she has never given power of attorney to the first petitioner and therefore the gift-deed is a spurious document. In the plaint, it is specifically averred that at no point of time respondent has appointed first petitioner as her power of attorney and as such he was not authorized to execute any gift-deed on her behalf. Alleging direct nexus between both the petitioners, respondent-plaintiff has averred in the plaint that this entire dubious transaction is brainchild of the first petitioner to deprive her from her agricultural land. Proving nexus between both the petitioners, respondent-plaintiff has specifically averred in the plaint that both are father and son and therefore the entire transaction is collusive which has not conferred any right, title or interest in favour of second respondent and the same is therefore liable to be declared as null and void.

Resisting the suit of the respondent-plaintiff, on behalf of petitioner, an endeavor was made for rejection of the plaint by laying application under Order 7 Rule 11(b) CPC, alleging therein that the suit is undervalued and the respondent-plaintiff has not paid the requisite court-fees as per market value of the property. The application is contested by the respondent-plaintiff with a specific denial about her executing power of attorney in favour of first petitioner and authorizing him to execute a gift-deed. Showing direct nexus between both the petitioners, as they are father and son, the respondent-plaintiff has categorically averred in the return that this entire dubious transaction is outcome of a conspiracy hatched by both to deprive respondent-plaintiff from her property. A specific fact is pleaded in the reply that in the backdrop of facts and circumstances of the case Section 38 of the Rajasthan Court-fees and Suit Valuation Act, 1961 (for short, ''Act of 1961'') is not applicable and the lis involved in the suit is governed by Section 24(a) of the Act of 1961.

I have heard learned counsel for the petitioner and perused the impugned order.

Upon examining the impugned order in its entirety, in my opinion, the learned Court below has not committed any illegality or material irregularity in exercise of its jurisdiction. Well it is true that in gift-deed respondent-plaintiff is projected as its alleged executant but the fact of the matter is that its de facto executant is her so called power of attorney. A bare reading of the plaint makes it amply clear that respondent-plaintiff has categorically disowned the factum of giving power of attorney to the first petitioner and as per her version the so called power of attorney is a spurious document. In these circumstances, when the power of attorney itself is under cloud, the subsequent execution of gift-deed by the first petitioner in favour of second petitioner cannot be prima facie presumed to be a document executed by the respondent-plaintiff. It is in these circumstances, the respondent-plaintiff is well within her right to seek a declaration that gift-deed is null and void vis-�-vis her right, title and interest over the disputed property. The learned trial Court, while examining the peculiar facts and circumstances of the case, has also placed reliance on a decision of Hon''ble Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, . In this verdict, the Hon''ble Apex Court, while examining Section 7(iv)(c), (v) and Schedule II, Article 17(iii) of the Court Fees Act 1870 (as amended in the State of Punjab), has held:

"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 the 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." 6. This Court, in case of Makhan Lal and Another Vs. Urban Improvement Trust, Jaipur City and Another, , on conjoint reading of Section 24(a) and Section 38 of the Act of 1961 has held that if the plaintiff is not the party to a decree or to the instrument of sale, he can very well seek declaration to the effect that document or the decree is void ab-initio and ineffective against him.

Considering the glaring facts of the case, wherein part of the land owned by the respondent-plaintiff is being gifted by the first petitioner father to his son second petitioner, prima facie, the transaction appears to be dubious one for which respondent-plaintiff can very well seek declaration to the effect that the alleged gift-deed is null and void and ineffective vis-�-vis her. In totality, the impugned order has also not occasioned failure of justice requiring interference in the limited scope of judicial review under Section 115 CPC.

The upshot of the above discussion is that this revision petition is bereft of any merit and the same is accordingly dismissed summarily.