ORDER
1. This revision petition has arisen out of an order dated 23-7-1997 passed by Second Civil Judge Class-II, Vidisha.
2. The facts leading to the petition in short are that plaintiff-respondent No. I Miththu Lal filed a suit for declaration and injunction alleging that he was the resident of village Basuriya, Tehsil Gyaraspur, Distt. Vidisha and was aged 85 years. He had no son. He had two daughters. He kept his younger daughter Kranti Bai and son-in-law Mahendra Singh at his house for looking after his cultivation on account of his old age. They lived there for 15-16 years. He had certain lands detailed in para 2 of the plaint. His son-in-law Mahendra Singh was living with him. His son-in,-law started quarrelling and had also beaten him for sometime. There was an enmity going on. Hence it was difficult for him to livc in the village. Defendant No. I started helping him. Defendants 2 to 8 were friends of defendant No. 1. He had faith on them. He had kept Bhu-Adhikar Pustika with defendant No. I. In May, 1994, defendant No. 1 asked him to go to Vidisha to move an application after keeping all the documents of land. As he had full confidence over him, he agreed to go to Vidisha. He went along with defendants 1 and 2 and 4-6 other persons to Vidisha. Defendant No. I took his thumb impression on certain typed papers and took him to the Registrar and asked him to execute a Mukhtarnama before the Registrar so that he may not have to go to Courts regularly. Relying upon defendant No. I, he put his thumb marks over the stamp papers in the Office of the Registrar. On 14-8-94, his brother and daughter Kranti Bai went to him and told him that defendants 1 to 8 had sold his whole disputed land and executed the sale deed on 17-5-94, though he never sold the land. He was not in any need of selling the land. He did not obtain any consideration. The alleged document was without consideration and was the result of fraud. His daughter Kranti Bai gave copies of documents of so-called sale-deeds which she was keeping. He then went to Vidisha along with his brother Bahu Lal and got the documents examined by a counsel. Then they came to know that sale deeds were got executed for different sum in names of different persons as mentioned in para 7. Defendants 1 to 8 got fictitious sale-deeds executed fraudulently and got his thumb impression on the pretext of Mukhtarnama which were wholly fictitious and illegal he, therefore, valued the suit for the purpose of jurisdiction on 20 times of the land revenue and paid court-fee thereon.
3. The written statement was filed by defendants 3 to 8 and an application was moved by them purporting to he under Order 7, Rule 11 (b)(d) of C.P.C. It was alleged that the Court-fee paid was insufficient. Not only this, he filed a suit in a Court which had also no jurisdiction to entertain the suit. The court-fee ought to have been paid on the valuation of the sale-deeds. This application was disposed of by the Court below by the impugned order on 23-7-97 and was rejected, hence this petition by the defendants.
4. The learned counsel for the parties have been heard on merits, at the initial stage. The contention of the learned counsel for the petitioners is that in spite of the fact that the plaintiff had sought a relief of declaration, the suit ought to have been valued and Court-fee paid ad valorem under Section 7(iv)(c), Court-fees Act because it involved the cancellation of the sale-deeds. In support of his contention he relied upon full Bench decision of this Court reported in 1970 Jab LJ 290 : (AIR 1971 MP 1) (Santoshchandra v. Gyansunder Bai); AIR (31) 1944 Patna 17 Mt. Rupia v. Bhatu Mahton another Full Bench Decision of the Patna High Court and a decision of the Apex Court reported in AIR 1973 SC 2384 Shammsher Singh v. Rajinder Prasad.
5. On the other hand, it has been argued by the learned counsel for the contesting-respondent No. 1 that for determining the valuation of the suit for the purpose of jurisdiction, plaint allegations have to be seen. The learned counsel urged that copy of the plaint filed by the petitioners is on record and its perusal shows that the plaintiff has specifically alleged that the sale-deeds in questions were obtained by practising fraud inasmuch as the defendant No. 1 taking advantage of the confidence imposed in him by the plaintiff took him to Vidisha and got his thumb impression over certain stamp papers on the pretext that it was a Mukhtarnama. The documents were, therefore, void. He contended that the suit was rightly valued and sufficient Court-fee was paid. He supported his contention by relying upon the decision of a learned single Judge reported in 1982 Jab LJ 72, Durg Singh v. Ramkali and 1982 MPWN 174. Pramod Kumar v. Bhind Central Co-op. Bank. It is also the decision of the learned single Judge of this Court.
6. There cannot be any denial of the principle of law that while considering the question of payment of Court-fee, the allegations contained in the plaint have to be seen. It may, however, be mentioned that the plaintiff cannot be permitted to mould the facts and circumstances and the real intention. If we go through the averments made in the plaint, it transpires that the intention of the plaintiff is something different than what has been claimed. The Court cannot over look it. I have already quoted above the facts alleged by the plaintiff in detail. It may be mentioned here in brief that the allegations made in the plaint are that the plaintiff stated that he was taken in the office of the Registrar by defendant No. 1 and he had confidence in him. He had taken his thumb impression on the stamp papers on the pretext that it was a document of Mukhtarnama, but the defendants I to 8 got fictitious sale-deeds executed fraudulently. The sale-deeds were void and inoperative as they were obtained by fraud and misrepresentation. Section 19 of the Indian Contract Act shows :
'When consent to an agreement is caused by coercion fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.'
Thus under this section, if the consent to an agreement is obtained by coercion or by practising fraud or misrepresentation, the documents can be avoided by the person whose consent was so obtained. In the present case, as pointed out above, the averments show that the plaintiff was taken into the office of the Registrar and his thumb impressions were obtained on some typed papers on the pretext that it was a Mukhtarnama. Thus, to my mind, it has to be taken that according to the averments made in the plaint, the contract, i.e. sale-deeds in question are voidable documents and can be ignored only on the option of the party on whom fraud was practised or misrepresentation was made. The Full Bench decision of this Court relied upon by the learned counsel for the petitioners mentioned above, i.e. the case of Santosh Chandra (AIR 1971 MP 1) (supra) shows that at page 4:
'Where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. In such case, the question of court-fees has to be determined underSection 7(iv)(c) of the Act.....
It was further held in this case : '.....if the plaintiff is not hound by thatdecree or agreement or liability and if he is not required to have it set aside, he can claim to pay Court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-fees Act.'
There is an earlier decision of Full Bench of Patna High Court on same lines reported in AIR (31) 1944 Patna 17. Their Lordships held that: 'a suit though case is in the form of a declaratory relief only, hut in substance aiming at setting aside a deed formally executed and registered in accordance with law it is governed by Section 7(iv)(c) and not by Sch. 2, Article 17 (iii). In that case, the plaintiff alleged that she was in possession of the properties in question, holding a widow's estate after her husband's death. The defendants had brought her to Patna on false pretexts and fraudulently got her to affix her thumb mark to two documents and to, admit execution of the same without letting her know the contents thereof and that the recitals in the documents, the Court-fee paid was for a declaration only. After taking into consideration the entire facts and law, their Lordships specifically ruled that provision of Section 7(iv)(c) were applicable and not Sch. 2, Article 17 (iii) of the Court-fees Act. Consequently, it was held that Court-fee ad valorem was required to be paid. Thus in view of the Full Bench decision of this Court as well as the above Full Bench decision of the Patna High Court, there remains no doubt that in case where the plaintiff sought a declaratory relief only, but in substance aim at setting aside sale deeds, Court-fee has to be paid in accordance with law governed by Section 7(iv)(c).
7. Before concluding, I must also mention the authorities relied upon by the learned counsel for the contesting-respondent. Both the authorities i.c. 1982 MPWN 174 (Pramod Kumar. Bhind Central Co-op. Bunk and 1982 JLJ SN 72, Durg Singh v. Ramakali) are decisions of the learned single Judge of this Court. In view of the law laid down in the aforementioned Full Bench decision of this Court as well as of the Patna High Court, I am of the view that the decisions of the learned single Judge of this Court cannot help the learned counsel for the contesting respondent. I may, however, clarify the position in another way that I a contract or other transaction induced or tainted I by fraud is not void, but only voidable at theoption of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. It is also useful to mention the provision of Section 47 of the Registration Act, 1908 under which a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. Once a document is registered, as required under the law, it becomes operative. There is no doubt that the allegation is that the documents in question were registered on misrepresentation. Consequently, it had to be got cancelled and mere declaration of the right cannot be effective.
8. The learned counsel for the respondent No. 1 urged that as the petitioners' impressions were taken by practising fraud anil on the basis of misrepresentation, he cannot be taken to be party to the document. He can, therefore, seek mere declaration and cancellation of sale-deed was not required. I have given by anxious consideration to this contention. I have already said above that third parties without notice of the alleged fraud can acquire lights and interest in the property and get it enforced against the person defrauded. It cannot under the circumstances be taken that he was not a party to me document. Thus to my mind unless the document is got cancelled by a decree of Court, it remains a valid document. In this view of the matter, the relief of declaration cannot be sufficient. The plaintiff has to ask for a consequential relief of cancellation of sale-deed in order to avoid it. Consequently, I conclude that as a consequential relief of cancellation of sale-deeds is necessary on the facts of the present case. The plaintiff is required to pay ad valorem Court-fee on the value of the sale-deeds under Section 7(iv)(c) of the Court-fees Act as laid down in the aforesaid Full Bench decision of this Court. The suit has also to be valued accordingly.
9. In the result, the revision petition succeeds. It is allowed. The impugned order is set aside. It is directed that the learned trial Court shall require the plaintiff to get the plaint amended suitably by correcting valuation of the suit and in case valuation exceeds the jurisdiction of the Court, the learned Court shall return the plaint for presentation to proper Court and if the plaintiff files thesuit before the proper Court, the requisite fee, as pointed out above, has to be paid and then it may be entertained.
10. Costs of this revision petition shall remain easy.