Judgment:
ORDER
Abhay M. Naik, J.
1. This writ petition is preferred under Article 227 of the Constitution of India against the order dated 13-8-2008 passed by the Court of District Judge, Vidisha, in Civil Suit No. 2-A/08.
2. Short facts involved herein are that the plaintiff/respondent Nos. 1 to 7 instituted a suit against defendant/petitioner and defendant/respondent No. 8 with the allegation that their predecessor namely, Sabdar Hussain (husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7) was owner of the suit property to the extent of one half. He was an old person with weak eye sight and weak mental faculty. A registered sale deed dated 24-4-2007 was got executed from him by the defendant/petitioner in respect of his share in the disputed land. Sale deed was for consideration of Rs. 5,64,400/-, out of which Rs. 2 lacs was shown to have been paid in advance. It was alleged that the consideration was not paid at all and the registered sale deed was got executed in collusion with the Sub Registrar. Accordingly, a declaration has been sought that the registered sale deed dated 24-4-2007 is illegal and void. Possession and mesne profit are also prayed for.
3. Defendant/petitioner submitted an application under Order 7 Rule 11, CPC that the plaintiffs may be directed to pay ad valorem Court fees on Rs. 5,64,400/- being valuation of the sale deed.
4. Learned Trial Judge dismissed the application by the impugned order holding that the plaintiffs were not party to sale-deed and they cannot be directed to pay ad valorem Court fees on the valuation of the sale deed. This order has been challenged in the present writ petition.
5. Learned Counsel for the parties argued at length.
6. Admittedly, the suit has been valued for the purpose of declaration at Rs. 5,64,400/- being the valuation of the sale-deed in question, which was executed by Sabdar Hussain, husband of the plaintiff No. 1 and father of plaintiff Nos. 2 to 7. Property in question belonged to him. Thus, he was quite competent to execute the sale deed. Plaintiffs are bound by the sale deed unless the same is avoided. Although the relief clause is couched in declaratory form, the relief sought by the plaintiffs shall have the effect on cancelling/avoiding it. Thus, it is governed by clause (c) of Section 7 (iv) of the Court Fees Act, 1870 and an ad valorem Court fees is payable as setting aside the sale deed dated 24-4-2007 is implicit in the declaratory relief sought by the plaintiffs.
7. We may successfully refer to the Apex Court's decision in the case of Shamsher Singh v. Rajinder Prashad and Ors. AIR 1973 SC 2364. In the Shamsher Singh's case (supra), the plaintiff has prayed for declaration that the mortgage deed executed by the father in respect of joint family property was null and void for want of legal necessity and consideration. The Apex Court observed that although the relief was couched in a declaratory form, the same was in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. It was further found that unless the decree was set aside, it would have remained executable against the son and it was essential for the son to ask for setting aside the decree. Likewise in the present case, if the sale deed executed by the Sabdar Hussain is not avoided, it will remain binding on the plaintiffs, who would not inheritate the property.
8. Shri Bansal, learned Counsel appearing for the respondents relied upon Full Bench decision of this Court in the case of Santosh Chandra and Ors. v. Gyan Sunder Bai and Ors. 1970 JLJ 290, wherein it is observed:
Thus, all these cases lay down the proposition that 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 cases, the question of Court-fees has to be determined under Section 7(iv)(c) of the Act. But, however, where a plaintiff is not a party to such a decree, agreement, instrument or a liability, and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the property.
Even in the aforesaid Full Bench view, the plaintiffs being successor of Sabdar Hussain are bound by the sale deed executed by him. Thus, the Full Bench decision does not render any assistance to the contesting respondents.
9. Learned Trial Judge has passed the impugned order in favour of the plaintiffs on the ground that the plaintiffs were not party to the said sale deed. Learned Trial Judge has failed to consider that the plaintiffs are claiming the suit property from Sabdar Hussain, who has executed the registered sale deed in question. Thus, they represent the estate of Sabdar Hussain and in absence of avoidance of the registered sale deed, they would remain bound by the same. It is not a case where the plaintiffs claimed the suit property independent of Sabdar Hussain. Thus, without avoiding the sale deed executed by the Sabdar Hussain, no relief would be available to the plaintiffs. This being so, they are bound to pay the ad valorem Court fees.
10. This Court in the case of Manoharlal v. Vedahisharan and Ors. 1995 (1) Vibha 148, has after taking into consideration various authorities observed:
(i) where a party seeks to avoid a deed or a decree to which he is party, then ad valorem Court fees is payable.
(ii) where substance of the relief is either for setting aside the decree or for a declaration with a consequential relief for cancellation or restraining then, ad valorem Court fees is payable.
11. At the cost of repetition, it is reiterated that the plaintiffs having claimed the suit property from Sabdar Hussain are bound to avoid the sale deed dated 24-4-2007 and the learned Trial Judge has thus erred in holding contrary. We may successfully refer on this point other decision of this Court Kamalkishore v. Jagannath Prasad, reported in 2005 (2) MPWN 43.
12. Reliance by Shri D.D. Bansal on Bhikam Chandra v. Ghichi Bai 1999 (II) MPWN 136; Ambaram v. Smt. Pramilabai and Ors. 1997 (1) JLJ 136; Varud Ahmed v. Nihal Ahmed 1996 (I) MPWN 235; Omprakash and Ors. v. Suratram and Ors. 1993 (1) Vibha 259 and Laxmikant Dube v. Smt. Piyaria : 2002(1) M.P.H.T. 133 : 2002 (2) MPU 44, are of no assistance because in none of these cases, plaintiff was bound by the deed.
13. Contrary to this, it is found in the present case that according to the plaint averments themselves, the suit property was owned by Sabdar Hussain, who was husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7. It allegedly devolved upon the plaintiffs after death of Sabdar Hussain. In case, if the registered sale deed executed by Sabdar Hussain on 24-4-2007 is not avoided, the suit property cannot be treated as available for devolution on plaintiffs. Thus, it is obligatory on the part of plaintiffs to seek the cancellation or avoidance of the said sale deed. Although relief clause is couched in declaratory form, the relief of avoidance and/or cancellation is implied in the declaratory relief contained in plaint. This being so, the case of the plaintiff is found squarely covered by the Apex Court decision in the case of Shamsher Singh (supra). The impugned order is thus not found sustainable in law. The same is hereby set aside. Plaintiffs are directed to pay ad valorem Court fees on the valuation of the sale deed. Trial Court shall grant reasonable time to pay the deficit Court fees before proceeding further on merits in accordance with law. Petition stands allowed in the aforesaid manner.
No orders as to costs.