Sivagurunathan and another vs S. Shanmugaraja

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the Plaintiffs against the fair and decreetal order dated 12.09.2011 made in

O.S. NO. 283/2004 by the learned III Additional District Munsif (Trainee District Judge), Tirunelveli, sustaining the objection raised by the

Respondent/Defendant and directing the Plaintiffs to pay court fee u/s 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (herein

after referred to as the Act). The deceased 1st Plaintiff has filed a suit in OS. No. 361/2002 on the file of the learned Principal Subordinate Judge,

Tirunelveli for the relief of declaration that the sale deed dated 22.01.2001 executed by the deceased 1st Plaintiff in favour of the Defendant is only

in respect of one acre of land described in the plaint schedule property and for consequential permanent injunction restraining the Defendant from

interfering with his possession and enjoyment of the remaining 9 acres of land. According to him, the Respondent/Defendant cheated the Plaintiff

and had obtained the sale deed for ten acres of land. The sale price was fixed at Rs. 15000/- per cent and for one acre and the Defendant agreed

to pay a sale consideration of Rs. 15 lakhs. An agreement of sale was also entered into between the parties on 29.01.1999. The Defendant paid

the sale consideration by way of cheques on different dates and the sale deed was executed and registered in the Sub Regsitrar''s Office. Believing

the representation that the sale deed relates to one acre, the Plaintiff signed the document and the same was also registered. Later, the Plaintiff

came to know that the sale deed was obtained by the Defendant for the entire ten acres fraudulently. The sale deed obtained from the Plaintiff

fraudulently is not binding on the Plaintiff. Hence, the Plaintiff has filed the suit for declaration and for permanent injunction as stated above.

Pending the suit, the 1st Plaintiff died and the 2nd Petitioner and his son have been impleaded as the Plaintiffs 2 and 3.

Denying the averments in the plaint, the Defendant has filed a Written Statement, stating as follows:-

The Plaintiff has sold the property of an extent of ten acres at the rate of Rs. 1500/- per cent and had received the entire sale consideration. The

sale deed has been attested by his son, the 2nd Plaintiff herein. In the sale deed the value is shown as Rs. 3,80,000/- at the request of the Plaintiff.

Hence, the sale deed executed for proper consideration is valid and binding on the Plaintiffs. The prayer seeking for declaration that the sale deed

in so far as one acre alone is valid amounts to cancellation of the said sale deed for the remaining nine acres and the court fee ought to have been

paid by the Plaintiff u/s 40 of the Act.

The Defendant filed an application u/s 12(2) of the Act in IA. No. 525/2005 in OS. NO. 283/2004 and it was allowed on 23.11.2005. In view

of the same, a preliminary issue has been framed by the Trial Court and after hearing both sides, the Trial Court has passed an order directing the

Plaintiffs to pay the court fee u/s 40 of the Act and further directed him to file necessary amendment to correct the value of the suit in the plaint.

It was resisted by the Plaintiffs contending that the sale deed had been obtained from the 1st Plaintiff (since deceased) under fraud and the sale

deed is valid only in so far as one acre of land is concerned. Since the suit is not filed for cancellation of the sale deed, the Defendants cannot insist

the Plaintiffs to pay court fee u/s 40 of the Act.

Upon consideration of the averments made in the plaint, the learned III Additional District Munsif, has found that the sale deed having been

executed by the 1st Plaintiff himself, prima facie the sale deed is binding on the executant. Pointing out that the relief sought for by the Plaintiff that

the sale deed is valid only for one acre of extent of land amounts to seeking for cancellation of the sale deed in so far as the remaining nine acres of

land is concerned and hence, the learned III Additional District Munsif held that the court fee paid u/s 25(b) of the Act is wrong and directed the

Plaintiffs to pay necessary court fee u/s 40 of the Act.

Aggrieved over the direction to pay court fee u/s 40 of the Act, the Plaintiffs have preferred this Civil Revision Petition.

The learned counsel for the Petitioners/ Plaintiffs has submitted that when no relief is sought for cancellation of sale deed, the order of the Trial

Court directing the Plaintiffs to pay the court fee u/s 40 of the Act is erroneous. The learned counsel for the Petitioners submitted that the

declaration is sought on the ground that the sale deed is valid only to an extent of one acre of land and that the court fee is correctly paid u/s 25(b)

of the Act. In support of his contention, the learned counsel relied upon the decision of this court reported in 2011-1-MWN-Civil-614 = 2011-1-

L.W. 925 (G. Seethadevi Vs. R. Govindaraj and others).

Refuting the contentions, the learned counsel for the Respondents have submitted that the allegations made in the plaint amounts to cancellation

of the document and that though the prayer is couched in the form of declaration that the document is valid and binding on him only in so far as one

acre of land is concerned indirectly indicating that the sale deed for the remaining 9 acres is not binding on him. Further, the above said relief is

followed by a prayer for permanent injunction restraining the Defendants from interfering with his possession in respect of 9 acres and it amounts to

seeking for cancellation of sale deed and therefore, the lower court was right in ordering payment of court fee u/s 40 of the Act. The learned

counsel relied upon various decisions of the Honourable Supreme Court and this court and I do not think that all those decisions had to be referred

to. Suffice to refer to the decision of the Honourable Supreme Court reported in 2010 3 LW 599 (Suhrid Singh @ Sardool Singh Vs. Randhir

Singh and others) wherein the Honourable Supreme Court has explained the distinction between the relief seeking to cancel the document by an

executant of the said document and a non executant seeking annulment of a deed. In paragraph 6 of the said decision, it has been made clear with

reference to Court Fees Act with illustration below:-

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 u/s 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with

consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto

makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less

than the value of the property calculated in the manner provided for by clause (v) of Section 7.

In the present case, the 1st Plaintiff is the executant of the deed of sale. Thus, the Plaintiff himself a party to the sale deed; when the party himself

seeks to get rid of the sale deed in substance, it amounts to cancellation of decree. A party may seek to avoid the sale deed if he is not a party to

the sale deed by seeking merely a relief of declaration. The citation referred to by the learned counsel for the Petitioners reported in 2011-1-

MWN-Civil-614 = 2011-1-L.W. 925 (G. Seethadevi Vs. R. Govindaraj and others) is distinguishable inasmuch as it relates to the case where the

Plaintiff has not admitted execution of the document and in such view of the matter this court held that the Plaintiff cannot be directed to pay court

fee u/s 40 of the Act.

To determine the court fee payable on a plaint, certainly it must be decided on the basis of allegations and the prayer made in the plaint. We

have to look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be

allowed to stand in the way of the court looking at the substance of the relief asked for. If on a proper construction of the plaint, as a whole, the

court arrives at a conclusion that the suit is one for cancellation, court fee for cancellation must be paid.

The word ""cancellation"" implies that the person 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 if it is impliedly sought for in substance, the suit is one for cancellation. In

the present case, since the Plaintiff attacks the sale deed as having been obtained under fraud and misrepresentation for ten acres instead of one

acre, he cannot seek for any further relief without setting aside the sale deed. Though the prayer is couched in the form of seeking declaration that

the document is valid only in respect of one acre of land and for consequential relief of permanent injunction restraining the Defendants from

interfering with the possession and enjoyment of the Plaintiff in respect of the remaining nine acres of land, the relief in substance indirectly amounts

to seeking for cancellation of the sale deed. The Trial Court was right in ordering payment of court fee by the Plaintiff u/s 40 of the Act. Therefore,

this Civil Revision Petition has no merits and is bound to fail. For the foregoing reasons, the impugned order of the learned III Additional District

Munsif (Trainee District Judge) Tirunelveli dated 12.9.2011 in Os. NO. 283/2004 is confirmed and accordingly, this Civil Revision Petition is

dismissed. However, in the circumstances of the case, there is no order as to costs. The Revision Petitioners, if not paid the court fee, are directed

to pay the court fee as directed by the Trial Court within a period of one month from the date of receipt of a copy of this order, failing which, the

Trial Court shall pass appropriate orders, in accordance with law.