Suit for Declaration the alleged sale deeds of which they are not parties are null and void and not binding on them and also for injunction – court fee is only on Notional value but not on the value of sale deeds as per sec.24 of A.P.C.F. & S.V.ACT= 46. The reliance on Section 24 by the court below in this regard also cannot be sustained since the provisions therein would be attracted only if the petitioners have sought a declaration of their title and sought relief of possession/injunction or if they sought for a declaration that documents to which they are parties are null and void or a declaration of any nature other than one sought for in the plaint. The said provision would have no application in a situation where the petitioners are not parties to the documents which they wish to be declared as null and void and not binding on them. 2015 Oct. http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13278

THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO

CRP.No.4485 of 2012

27-10-2015

Nade Ali Mirza, S/o.Late Haider Ali Mirza, And othersRevision Petitioners

Mrs.Khalida Mohammed Salim Dawawala, W/o.Mohd. Saleem Dawawala, and

others....Respondents

Counsel for the petitioners: Sri Sri P.Venugopala Rao

Counsel for respondent Nos.1 to 7: Sri Rakesh Sanghi

Counsel for respondent No.30 : Sri Asadullah Sharif

<GIST:

>HEAD NOTE:

? Cases referred

1. ILR 34 Cal. 329 (P.C.)

2. AIR 1940 Mad. 113

3. 2007 (5) ALD 863

4. AIR 1976 AP 199

5. 1989 (3) ALT 629

6. 2005 (6) ALD 132

7. 1972 (2) APLJ 100

8. 2009 (1) ALT 219

9. 2000 (5) ALD 102

10. 2003 (4) ALD 345

11. 2007 (4) ALD 458

12. AIR 1939 Madras 462

13. AIR 2010 AP 178

14. AIR 2010 SC 2777

15. AIR 2014 SC 1286

16. AIR 2002 SC 233

17. AIR 1973 SC 2384

18. AIR 2010 SC 2807

19. (1980) 4 SCC 354

20. (1993) 2 ALT 48 (FB)

21. 35 Indian Appeals 98

22. 1956 An.W.R. 1033

23. 1948 (I) M.L.J. 270

24. AIR 1966 SC 216

25. (1891) 14 Mad 26

26. (2004) 13 SCC 480

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO

C.R.P.No.4485 of 2012

ORDER:

This Revision Petition is filed under Article 227 of the

Constitution of India challenging the order dt.31-07-2012 in

O.S.No.324 of 2011 of the Principal District Judge, R.R. District at

L.B. Nagar, Hyderabad.

THE SUIT

2. The petitioners herein are plaintiffs in the above suit.

They filed the said suit against respondent Nos.1 to 143 for the

following reliefs:

(a) for a perpetual injunction restraining them from interfering with

the alleged peaceful possession and enjoyment of the petitioners over

the plaint schedule property and also not to alienate the same to any

third party; and

(b) to declare 107 registered sale deeds and agreements of sale cum-

GPAs mentioned therein which were registered in the office of the

Sub Registrar, Rajendranagar, Ranga Reddy District as null and void.

3. The subject matter of the suit is an extent of Ac.39.11

gts. in Sy. Nos.310, 311 and 312 of Budwel village, Rajendranagar

Mandal, Ranga Reddy District.

4. The petitioners valued the relief of perpetual injunction

notionally at Rs.18.00 lakhs and the relief of declaration to declare the

above documents as null and void also at Rs.18.00 lakhs and paid

court fee thereon.

THE APPLICATION UNDER SEC.11(2) OF RESPONDENT NO.S 1-7

5. Respondent Nos.1 to 7 herein who are defendant Nos.99,

100, 109 to 113 filed I.A.No.3373 of 2011 under Section 11 (2) of the

AP Court Fee and Suit Valuations Act, 1956 (for short the Act)

praying the Court below to decide the correctness of the valuation and

Court Fee paid by the petitioners insofar as the relief of declaration

that the 107 documents (mentioned in the plaint) are null and void is

concerned.

6. They alleged that the petitioners had grossly under

valued the suit schedule property showing that its entire value as only

Rs.20.00 lakhs; that although this Court had issued instructions on the

administrative side to subordinate District Courts to ensure that parties

filed market value certificate issued by the concerned Sub

Registrar/Registrar, to ensure that correct payment of Court Fee is

made by a litigant, and to prevent under valuing of suit claims, the

petitioners did not enclose the market value certificate of the

concerned Sub Registrar along with the plaint; in fact as per a market

value certificate obtained by the respondent Nos.1 to 7, the market

value of the suit schedule property is Rs.47,52,27,500/-, but the

petitioners have not paid court fee on this basis; and since the suit

claim is under valued, it amounts to playing fraud on the Court and

the plaint should be thrown out. They contended that although an

objection as to valuation of the reliefs was initially raised by the Court

below, subsequently the said objection was heard by the Court below

and not pressed by it, but later at the instance of the respondent Nos.1

to 7 who objected to the valuation, the Court permitted the suit to be

registered subject to objection. They contended that even as per the

averments in the plaint, the petitioners did not prove the paramount

title and ownership of late Haider Ali Mirza as regards the suit

schedule property even though the petitioners are claiming through

him, that they also did not produce any document in support of their

above plea and so the petitioners are bound to seek relief of

declaration of their title to the plaint schedule property under clauses

(a) or (b) of Section 24 of the Act. They contended that the relief of

declaration that the documents in favor of defendant Nos.9 to 144 are

illegal, null and void virtually amounts to seeking cancellation of the

said documents and the petitioners ought to have valued it under

Section 37 of the Act. It is further contended that by trick of pleading,

the petitioners had grossly under valued the suit and misled the Court

below to grant relief of declaration of title without valuing it under

Section 24 (a) and / or (b) of the Act and they cannot rely on Section

24 (d) of the Act. They therefore contended that the market value of

the property covered by each of the 107 documents questioned by the

petitioners should be taken into account for the purpose of calculation

of Court Fee and that since the said valuation is Rs.47,52,27,500/-, the

petitioners should be directed to pay Court Fee on the said valuation

under Section 24 (d) of the Act.

THE COUNTER AFFIDAVIT OF PETITIONERS

7. Counter affidavit was filed by the petitioners disputing

the above contentions and asserting that the suit has been valued

correctly and Court Fee was also correctly paid. The petitioners

denied that they played any fraud and contended that the respondent

Nos.1 to 7 had no locus standi to dispute the same. The petitioners

insisted that the valuation of the declaratory relief sought in the plaint

under Section 24 (d) of the Act is correct and valid. They contended

that they are successors to Haider Ali Mirza and are absolute owners

of the plaint schedule property and entitled to question the validity of

107 documents executed among the defendants and to have them

declared as null and void. They contended that they are not parties to

those 107 documents which they seek to be declared as null and void,

that they are not binding upon them, and that they need not show

separate value of each document since they have pleaded that the

documents are false and bogus. They contended that without filing

Written Statement, it is not open to the respondent Nos.1 to 7 to file

this application. They claim that defendant Nos.1 to 4 and 8 in their

Written Statement had admitted that the original pattedar is the father

of the petitioners and so the paramount title was admitted to be with

the petitioners. They contended that Section 24 (a) or (b) of the Act

are not attracted and that only Section 24 (d) is attracted. They

alleged that there is no need for the petitioners to seek cancellation of

the 107 documents or value them under Section 37 of the Act. They

contended that the respondent Nos.1 to 7 cannot contend that

valuation of the suit should be determined on the basis of

consideration mentioned in the sale deeds and the said I.A. be

dismissed.

THE ORDER OF THE TRIAL COURT

8. By order dt.31-07-2012, the Court below allowed the

said I.A. and directed the petitioners to value the suit insofar as the

relief of declaration declaring the 107 sale deeds as null and void and

not binding on the plaintiffs as per the valuation certificate Ex.A-1

dt.27-07-2011 issued by the Sub Registrar, Rajendranagar, Ranga

Reddy District filed by the respondent Nos.1 to 7 valuing the suit

schedule property at Rs.47,52,27,500/-, and pay the Court Fee thereon

before 14-08-2012 failing which it directed that the plaint would be

rejected.

9. After referring to the case laws cited by both sides, the

Court observed that there is no prayer for declaration of title sought by

the petitioners in the plaint and they had sought only injunction

simplicitor; that without seeking relief for declaration that the

petitioners are absolute owners and possessors of the suit schedule

property, the petitioners want to declare all the 107 documents

executed by some of the defendants as null and void and not binding

on them; the relief of injunction simplicitor, which is shown as the

main relief in the plaint, cannot be treated as a main relief when the

relief of declaration of whatever nature is added to it, and at best it

can be treated as a consequential/ancillary relief. It held that whenever

a declaration is sought for, it is incumbent on the part of the

petitioners to value the suit as per Section 24 (d) of the Act and for

that purpose, they should take the total value of the suit property into

consideration. It held that the petitioners had filed Form No.8

showing market value of the land as only Rs.20.00 lakhs and paid

Court Fee thereon while Ex.A-1 market value certificate issued by the

Sub Registrar on 27-07-2011 shows that the market value is more than

Rs.47.52 crores, and since the petitioners are seeking a declaration in

respect of that land and also seeking the documents to be declared as

null and void, they should value the suit as per the said market value

and cannot notionally fix the market value at Rs.18.00 lakhs and pay

Court Fee as they did.

THE REVISION BY PETITIONERS

10. Challenging the same, this Revision Petition is filed.

11. Heard Sri P.Venugopala Rao, learned counsel for the

petitioners, Sri Rakesh Sanghi, learned counsel for respondent Nos.1

to 7 and Sri Asadullah Sharif, learned counsel for respondent No.30.

The respondents 8-143 have been shown as not necessary parties to

the Revision.

THE CONTENTIONS OF COUNSEL FOR PETITIONERS

12. The learned counsel for the respective parties reiterated

the stand taken by them in the Court below. In addition, the counsel

for the petitioners contended that since the petitioners are not eo

nominee parties to the 107 documents in respect of which declaratory

relief was sought by them in the plaint, they are not bound to sue for a

declaration or for cancellation of each of them and such a prayer even

if it is there, needs to be ignored and Court Fee need not be paid

thereon. He relied upon Bijoy Gopala Mukerji Vs. Krishna

Mahishi Debi , Ramaswami Ayyangar Vs. Rangachariar and

Mohd. Ikramuddin Vs. Sangram Bosle and others . He further

contended that the view taken by the Court below that the petitioners

should pay Court Fee on the basis of market value of the suit schedule

property in respect of the relief of declaration sought by the

petitioners, is contrary to law, and that the Court below is not correct

in concluding that the petitioners are in fact seeking a declaration in

respect of the suit schedule land. He also disputed the finding of the

Court below that the relief of injunction sought for by the petitioners,

in the facts and circumstances of the case, is not a main relief but only

a consequential/ancillary relief.

CONTENTIONS OF COUNSEL FOR RESPONDENTS

13. The learned counsel for the respondent Nos.1 to 7

contended that the reasoning of the Court below is correct and that

there is no substance in the contentions raised by the counsel for the

petitioners. According to him, the purpose of payment of Court Fee is

for the benefit of the State and the petitioners cannot be allowed to

under value the suit by a trick of pleading and get away with it. He

contended that the petitioners are bound to seek declaration of their

title to the plaint schedule property and since they have not chosen to

do so, the plaint is liable to be rejected. He contended that the

petitioners ought to have valued the suit under Section 24 (a) and (b)

of the Act and not under Section 24 (d) of the Act and they should

have paid Court Fee on the market value of the property on the date of

filing of the suit. He contended that the relief of declaration claimed

by the petitioners in effect amounts to seeking relief of cancellation of

the documents/sale deeds and under Section 37 of the Act they should

pay Court Fee on the market value of the property comprised in the

sale deeds. He also contended that the Revision itself is not

maintainable. He relied upon Mohd. Shahbuddin and another Vs.

Ahmed Saifulah Hussain and others , Satyanarayana Vs. Om

Prakash and others , D.D.Nirmal Kumar and others Vs.

G.Sundera Shekhar and others , N. Kuru Murthy v.

M. Narasaiah , Koganti Sujani Vs. Vissamsetti Sankar Babu and

others , V.Rajeshwar Rao Vs. N.Yadagiri and others , State of AP

and others Vs. Narender Reddy and others , Chirala Rate Payers

and Civic Amenities Association Chirala, Prakasam District Vs.

Chirala Municipality , Kolachala Kutumba Shastri Vs.

Lakharaji Bala Tripura Sundaramma and others ,

M/s.Lakshminagar Housing Welfare Association, Hyderabad Vs.

Syed Sami and others , Satheedevi Vs. Prasanna and others and

Polamrasetti Manikyam and another Vs. Teegala Venkat

Ramayya and others .

14. I have noted the submissions of both sides.

POINT FOR CONSIDERATION

15. Therefore, the point for consideration is whether the

Court below was correct in holding that for the relief prayed by the

petitioners seeking declaration that 107 documents executed among

the defendants are null and void and not binding on them, the

valuation of the suit and the payment of Court Fee thereon by them is

not correct and that the petitioners are bound to pay court fee on the

market value of the plaint schedule property ?

THE CONSIDERATION BY THE COURT

16. From the plaint copy filed by petitioners, it is clear that

the petitioners contend that the plaint schedule property belongs to

their late father Hyder Ali Mirza, that they have inherited it from him,

and that they are in possession and enjoyment thereof. They alleged

that that the respondents have no right, title or interest therein and the

respondents have executed 107 registered sale deeds and agreement of

sale cum GPAs nominally and collusively even though they have

no valid title to the plaint schedule property. They have sought in the

plaint two reliefs : (a) for perpetual injunction restraining the

respondents nos.1 to 143 from interfering with the peaceful possession

and enjoyment of the petitioners over the plaint schedule property and

(b) to declare 107 registered sale deeds and agreement of sale cum -

General Power of Attorneys executed amongst the

defendants/respondents as null and void and not binding on them.

Re: Section 11(1) (a) :

17. Clause (a) of Sub-section (1) of Section 11 of the Act

mandates a Court before which a plaint is presented, to register it as a

suit only after deciding, on the allegations contained in the plaint and

the materials furnished by the plaintiff, the proper court fee payable

thereon. Clause (b) of sub-section (1) of Section 11 thereof makes the

decision of the Court under Clause (a) regarding the proper fee

payable subject to review, from time to time, as occasion requires.

18. In Kamaleshwar Kishore Singh v. Paras Nath Singh

and others , the Supreme Court held that, the decision on court fee

can normally only be based on the plaint as framed and not on the

plaint as it ought to have been framed, that, in certain circumstances

the Court can however come to the conclusion that the drafting of the

plaint was such that the plaintiff is attempting to evade payment of

correct court fee or that there is a provision of law requiring the

plaintiff to value the suit and pay the court fee in a manner other than

the one adopted by the plaintiff. It held that a court is enjoined to

begin with an assumption, for the purpose of determining the court

fees payable on the plaint, that the averments made therein by the

plaintiff are correct and that this did not preclude the court from

interfering if there is an arbitrary valuation of the suit property having

no basis at all for such valuation and made so as to evade payment of

court fee, or given for the purpose of conferring jurisdiction on some

court which it did not have, or depriving the court of jurisdiction

which it would otherwise have. It is the substance of the relief sought

for and not the form which will be determinative of the valuation and

payment of court fee. The defence taken in the written statement may

not be relevant for the purpose of deciding the payment of court fee

by the plaintiff. If the plaintiff is ultimately found to have omitted to

seek an essential relief which he ought to have prayed for, and without

which the relief sought for in the plaint as framed and filed cannot be

allowed to him, the plaintiff shall have to suffer the dismissal of the

suit.

19. In view of this settled principle of law, the court has to

proceed on the basis of the averments in the plaint. At this point of

time, when even a written statement is not filed by respondents 1-7, it

is not possible to say that by a trick of pleading the petitioners are

evading payment of court fee. So the contention of the respondents

that the petitioners should have also sought for declaration of title

specifically in the plaint and valued the same on the basis of the

market value of the property comprised in the 107 documents sought

to be declared as null and void, cannot be accepted because whether

such a relief also ought to have been prayed for by the petitioners,

without which the reliefs sought in the plaint by them as framed

cannot be granted, is a matter to be decided after trial and after

arguments are heard in the suit after the suit is registered.

Re: Sec.11(2) and Sec. 11 (3)

20. Sub-section (2) of Section 11 gives an option to any

defendant to plead that the subject matter of the suit has not been

properly valued or that the fee paid is not sufficient. It enjoins that all

questions arising on such pleas shall be heard and decided before the

hearing of the suit as contemplated by Order 18 C.P.C. It directs that

if the Court decided that the subject matter of the suit is not properly

valued or that the fee paid is not sufficient, the court shall fix a date

before which the subject matter of the suit shall be valued in

accordance with the courts decision and the deficit fee shall be paid.

It however directs that if within the time allowed, the subject matter of

the suit is not valued in accordance with the courts decision or if the

deficit fee is not paid, the plaint shall be rejected and the court shall

pass such order as it deems just regarding costs of the suit. This

decision of the trial court on the aspect of court fee can also be gone

into by the Court of Appeal either suo moto or on the application of

any party. [Section 11 (3) of the Act]

21. Sub-section (2) of Section 11 is the provision relied on

by the respondent nos.1 to 7 in I.A.No.3373 of 2011 seeking a

decision of the court below on the correctness of the valuation of the

suit and the court fee paid by the petitioners on the relief of

declaration that the 107 sale deeds/agreements of sale cum - GPAs

are null and void and not binding on the petitioners.

22. This provision was interpreted by a Division Bench of

this Court in Satyanarayana (5 supra). The Bench held that the

words in Section 11 (2) of the Act shall be heard and decided before

the hearing of the suit are only directory and not mandatory. The

Bench held that the purpose for which the provision is made is only to

see that proper court fee is collected from the plaintiff by the court

and the defendant is only given a right to point out regarding the

deficiency of the court fee paid and that should be limited and should

not be extended to enable him to protract the trial of the suit. It

further held that the defendant is not aggrieved by any such decision

and merely because he is given a right to contest the valuation, he

cannot be permitted to use the same as a weapon to protract the

litigation. It held that only in cases where the question of payment of

court fee affects the very pecuniary jurisdiction, it is necessary for the

court to investigate and examine and then decide it as a preliminary

issue, if it is satisfied that the jurisdictional question is involved and

that in such cases only, the defendant can move the higher courts on

the ground that the dispute regarding court fee is not tried as a

preliminary issue. In other disputes relating to payment of court fee, it

should be left to the discretion of the court to try the same as a

preliminary issue or try jointly along with other issues. The Bench

also considered the view in Mohd. Shahbuddin and another

(4 supra) and overruled the same. Therefore, the counsel for

respondent nos.1 to 7 is not entitled to place any reliance on the

decision in Mohd. Shahbuddin and another (4 supra).

23. In the present case, the plaint was presented in the

District Court at Ranga Reddy, the Court which has unlimited

pecuniary jurisdiction. So it cannot be said that to approach a court

with lesser pecuniary jurisdiction, the plaint was undervalued.

REVISION FILED BY PETITIONERS MAINTAINABLE

24. The Division Bench in Satyanarayana (5 supra)

followed the decision of Supreme Court in Shamsher Singh v.

Rajendra Prasad in holding that no Revision would lie against the

decision on the question of adequacy of court fee at the instance of a

defendant. Similar view has been taken in N. Kurumurthy (7 supra)

and Koganti Sujani (8 supra).

25. The counsel for respondents nos.1 to 7 sought to rely on

the judgment in Satyanarayana (5 supra), N. Kurumurthy (7 supra)

and Koganti Sujani (8 supra) to contend that the petitioners cannot

file a Revision challenging the order of the court below passed in

exercise of its power under Section 11 (2). This contention is not

tenable for the reason that the petitioners are not defendants in the suit

and they are plaintiffs and the impugned order affects their rights to

prosecute the suit. Therefore, in my considered opinion, the

petitioners are entitled to question the same under Article 227 of the

Constitution of India.

IS A PLAINTIFF, WHO IS NOT PARTY TO A SALE

DEED/CONVEYANCE/DEED AND WHO SEEKS TO QUESTION IT,

BOUND TO SEEK CANCELLATION OF IT ?

26. This issue was considered in Suhrid Singh v. Randhir

Singh while considering the provisions of the Court Fee Act (7 of

1870). The Supreme Court held that 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 Court explained the difference between a prayer for

cancellation and declaration in regard to a deed of

transfer/conveyance by giving an illustration. In the said illustration if

A and B are two brothers and A executes a sale deed in favour of C

and later wants to avoid it, he has to sue for cancellation of the deed.

On the other hand, if B, who is not an 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. It observed

that in essence both may be suing to have the deed set aside or

declared as not binding, but the form is different and the court fee is

also different.

27. Admittedly, in the present case, the petitioners are not

parties to the 107 documents which they seek to be declared as null

and void and not binding on them. Therefore, in view of the above

decision, it cannot be said that they are bound to seek relief of

cancellation of the 107 documents and compute court fee on the

market value of the land comprised therein.

28. It is not disputed by both parties that only if the

petitioners were to seek relief of cancellation of the 107 documents

mentioned in the plaint, Section 37 of the Act would get attracted.

29. The said Section 37 directs that in a suit for cancellation

of a decree for money or other property having money value, or other

document which purports or operates to create, declare, assign, limit

or extinguish, whether in present or in future, any right, title or

interest in money, moveable or immovable property, fee shall be

computed on the value of the subject matter of the suit. It enjoins that

such value shall be deemed to be, (a) if the whole decree or other

document is sought to be cancelled, the amount or value of the

property for which the decree was passed or other document was

executed, and (b) if part of the decree or other document is sought to

be cancelled, such part of the amount or of the value of the property.

Sub-section (2) is not relevant for our purpose.

30. Though a Full Bench of this Court in Lakshminagar

Housing Welfare Association (13 supra) took the view following the

Full Bench decision of the Madras High Court in Kolachala

Kutumba Sastri (12 supra) that the court fee should be computed, in

a suit for cancellation of a deed of conveyance, on the market value of

the property which is subject matter of the said deed, the said decision

was over-ruled in Polamarasetti Manikyam (15 supra) by the

Supreme Court. The Supreme Court followed its decision in Sathee

Devi (14 supra) while interpreting Section 37 of the Act and held that

the term value of property mentioned in the said provision does not

mean market value of the property and that court fee has to be

calculated on the sale consideration mentioned in the sale

deed/conveyance.

31. However, as stated above, since the petitioners are not

parties to the 107 documents which they seek to be declared as null

and void and not binding on them, they are not bound to seek the

relief of cancellation of these 107 documents and they are not bound

to pay court fee as computed under Section 37 of the Act. Therefore,

the above decisions cited by the counsel for respondent nos.1 to 7

cannot be applied to the present case.

IF A SALE DEED/CONVEYANCE/DEED IS NULL AND VOID,

SPECIFIC PRAYER TO SET IT ASIDE IS UNNECESSARY

32. If a sale deed, according to the plaintiff is null and void,

and non-est in the eye of law he need not seek to have it set aside.

This principle was laid down in Mahadeo Prasad Singh v. Ram

Lochan by the Supreme Court. It held:

32.Thus considered, the sale of the immovable property

ordered by the Munsif in execution of the decree of the Court of

Small Causes transferred to him, was wholly without jurisdiction

and a nullity.

33. Once we come to the conclusion that the sale in question

was totally null and void, the alternative contention of the

appellants with regard to the suit being barred by Section 47 of the

Code of Civil Procedure, does not survive.

34. This is not a case of an irregular or voidable sale which

continues to subsist so long as it is not set aside, but of a sale

which was entirely without jurisdiction. It was non est in the eye of

law. Such a nullity does not from its very nature, need setting

aside. (emphasis supplied)

33. A Full bench of this Court in Employees Association v.

Sri Chennakesava Swami temple , reiterated the principle that if a

sale is void, there is no necessity to seek cancellation of it, following

Mahadeo Prasad Singh (18 supra). In Employees Association

(20 supra), a the suit was filed for setting aside a sale conducted

pursuant to the sanction given by the Commissioner and the

Government under Section 74 of the A.P. Charitable & Hindu

Religious Institutions & Endowments Act, 1966 without challenging

the said orders. The Bench held that not only was a civil suit

maintainable to set aside the sale but it also held that the sale is void.

It observed:

In support of the contention that the plaintiffs could have even

filed a simple suit for recovery of possession of the suit land without

seeking cancellation of the sale deed which was null and void under

Section 74 of the Act, the learned counsel for the plaintiffs-respondents

have relied on the decision of the Privy Council in T.P. Petherpermal

Chetty v. R. Muniandi Servai and Ors. , , the relevant portion of

which is as follows:

"As to the point raised on the Indian Limitation Act, 1877,

their Lordships are of opinion that the conveyance of June

11, 1895, being an inoperative instrument, as, in effect, it

has been found to be, does not bar the plaintiff's right to

recover possession of his land, and that it is unnecessary

for him to have it set aside as a preliminary to his obtaining

the relief he claims." (emphasis supplied)

38. In a matter arising under the Court Fees Act, 1870, a learned

Judge of this Court held in Srimathi Mokhamatla Kondamma and

Anr. v. Srimathi Mokhamatla Venkatalakshmi Devi , that as in

the case of a reversioner, it is open to the junior widow to ignore the

adoption by a senior widow as a nullity and file a suit for possession

after the death of the senior widow. A junior widow, the learned Judge

observed, is entitled to ignore the adoption and file a suit for recovery

of her half share against the senior widow. If the junior widow is not

bound under substantive law to sue for a declaration that the adoption

is invalid, in order to obtain the relief of partition and separate

possession, it does not matter whether the alleged adopted son is

impleaded or not as a party or that an unnecessary relief for

declaration is sought for in the plaint. It is not necessary for the junior

widow to seek relief either for setting aside the adoption in order to

obtain the relief of partition and separate possession or for a

declaration that the alleged adoption is not true and valid. In a matter

arising under the Madras Court Fees Act, 1870, a Division Bench of

the Madras High Court held in Sahul Hamed Rowther v. K.C.P.

Mohideen Pichai that-

" Where a plaintiff alleged that a sale deed executed by him

in favour of the defendant was sham and nominal and prays

for a declaration to that effect and an injunction

restraining the defendant from interfering with the

plaintiff's possession it is not necessary for the plaintiff to

pray for cancellation of the deed."

From the above decisions it is clear that since the petitioners

herein are contending that the impugned documents are null and void,

they need even specifically seek a relief for their cancellation.

ON WHAT BASIS THE PETITIONERS SHOULD HAVE VALUED THE

RELIEF OF DECLARATION THAT THE 107 DOCUMENTS ARE NULL

AND VOID AND NOT BINDING ON THEM ?

34. In Bijoy Gopala Mukerji (1 supra), the Privy Council

was of the view that the relief for declaring that a sale deed is null and

void when prayed in a plaint by a party, who is not eo nominee a party

to it, is in fact an unnecessary relief. In that case, a reversioner sued

for a declaration that a lease granted by the widow of the last male

owner was not binding on him and for khas possession. It was

objected that the omission to plead setting aside of the lease by a suit

instituted within the time limited by Article 91 of the Limitation Act,

was fatal to the suit. The Privy Council held that an alienation by a

Hindu widow though not absolutely void, is prima facie voidable at

the election of the reversionary heir, who may affirm it, or treat it as a

nullity, without the intervention of any court. It held that he shows his

election to do the latter by commencing an action to recover

possession of the property and in such an event there is, in fact,

nothing for the court either to decide or cancel as a condition

precedent to the right of action of the reversionary heir. It held that

though the appellants before it prayed in the plaint that a declaration

that the lease was inoperative as against them be granted, as leading

up to their prayer for delivery to them of khas possession, it was not

necessary for them to do so. It observed that they might have merely

claimed possession, leaving it to the defendants to plead and (if they

could) prove the circumstances which they relied on for showing that

the Ijara or any derivative dealing with the property were not in fact

voidable, but were binding on the reversionary heirs. It observed :

6. in such cases, even if the plaint contains a prayer for

a declaration or cancellation, there is good reason for holding it to be

one for a purely incidental but unnecessary relief. ..

35. The above decision was approved by the Supreme Court

of India in Radha Rani v. Hanuman Prasad . The Supreme Court

held:

In this connection, it is necessary to consider whether the heirs

of the widow were necessary parties to a suit against the alienee either

for a declaration that the alienation is void beyond her lifetime or for

possession of the alienated property. In the case of an alienation by a

Hindu widow without legal necessity, the reversioners were not bound

to institute a declaratory suit during the lifetime of the widow. They

could wait until her death and then sue the alienee for possession of

the alienated property treating the alienation as a nullity without the

intervention of any court. See Bijoy Gopal Makherji v. Krishna

Mahishi Debi. To such a suit by the reversioners for possession of the

property after the death of the widow, the heirs of the widow were not

necessary parties. The reversioners could claim no relief against the

heirs of the widow and could effectively obtain the relief claimed

against the alienee in their absence. Instead of waiting until her death,

the next reversioner as representing all the reversioners of the last full

owner could institute a suit against the alienee for a declaration that

the alienation was without legal necessity and was void beyond her

lifetime.

36. The decision in Bijoy Gopala Mukerji (1 supra), was

followed by a Full Bench of the Madras High Court in Ramaswami

Ayyengar (2 supra). In that case, a suit had been filed for partition of

the estate of a joint Hindu family by the minor son of a Hindu father

through his mother and next friend before the Sub-ordinate Judge of

Kumbakonam. He contended that his father had engaged in reckless

speculation in land, in trade, and in litigation dissipating the cash

resources of the family and by selling and mortgaging family

properties. He further alleged that the said transactions are not

binding on the family, but he did not seek any prayer for setting aside

of the alienations of the family properties or for declarations that his

fathers other transactions are unenforceable against the estate. The

court below directed him to pay court fee by deeming him to be

constructively a party to a mortgage and other transactions entered

into by his father and directed him to pay court fee in accordance with

the ad valorem scale specified in Article 1 of Schedule I of the

Court Fee Act, 1870. The Full Bench held that in respect of

transactions entered into by his father in respect of which the plaintiff

is not bound under the substantive law by which he is governed to sue

for a declaration or cancellation, no court fee is payable. It held :

if a person not having authority to execute a deed, or having

such authority under certain circumstances which did not exist,

executes a deed, it is not necessary for persons who are not bound by

it, to sue to set it aside, for it cannot be used against them and that

they may treat it as non-existent and sue for their right as if it did not

exist.

It followed the decision in Unni v. Kunchi Amma .

37. The Supreme Court approved the decision in

Ramaswami Ayyengar (2 supra) in Nagappan v. Ammasai .

38. The above decisions of the Privy Council in Bijoy

Gopala Mukerji (2 supra) and Ramaswami Ayyengar (1 supra)

were followed by a single Judge of this Court in Mohd. Ikramuddin

(3 supra).

39. In Mohd. Ikramuddin (3 supra), the plaintiff had filed

a suit for declaration of title and recovery of possession of plaint

schedule properties. He also sought a declaration that a sale deed

executed by 2nd defendant in favour of 1st defendant is null and void.

Since it was a suit for declaration of title and recovery of possession,

he paid court fee under Section 24 (d) of the Act.

40. The said provision states :

24. Suits for declaration : --

(d) In other cases, whether the subject-matter of the

suit is capable of valuation or not, fee shall be computed on

the amount at which the relief sought is valued in the plaint

or at which such relief is valued by the Court whichever is

higher.

41. The trial court took an objection about the payment of

court fee and directed him to pay court fee under Section 37 of the Act

since he is asking for declaration that a registered sale deed was null

and void and not binding on him. This was questioned in Revision

before this Court. This Court held that since the plaintiff was not a

party to the registered sale deed, he need not ask for cancellation of it

and he is perfectly justified in asking for consequential relief of

declaration that the sale deed is not binding on him. It held that

merely because, to be on the safe side, the plaintiff sought for the

relief for declaration that the sale deed is null and void and paid the

court fee under Section 24 (d) of the Act, it did not mean that the suit

falls under Section 37 and not Section 24 (d). It further held that such

a prayer for declaration or cancellation could as well be ignored and

court fee need not be paid thereon. It held that according to the plaint,

when the plaintiff is not a party to the sale deed, he need not ask for

cancellation of the sale deed as the cancellation implies that the

person suing should be an actual or constructive party to a valid or

operative document. It held that a third party like the plaintiff is not

bound by a document of the description in question and is not obliged

to sue for cancellation. It set aside the order of the court below

directing the plaintiff to pay court fee under Section 37 of the Act but

not under Section 24 (d) and held that since according to the plaintiff

it is a sham transaction, he need not pray for its cancellation and even

if such a prayer is made, he need not pay court fee.

42. In the present case also, the petitioners contend that the

title to the plaint schedule property belongs to them and they are the

heirs to their father late Hyder Ali Mirza and the respondents cannot

deal with the plaint schedule properties without any right, title or

interest therein. Since they are not parties to the 107 sale

deeds/agreements of sale cum GPAs mentioned in the plaint, and

they contend that they are sham, invalid, null and void and collusive

documents and have sought a declaration that they are null and void

and not binding on them, they not only need not seek relief that these

documents be cancelled, but they are also not bound to pay any court

fee on this relief of declaration in view of the decisions in Bijoy

Gopala Mukerji (2 supra), Radha Rani ( 24 supra), Ramaswami

Ayyengar (1 supra), Nagappan ( 26 supra) and Mohd. Ikramuddin

(3 supra).

43. Therefore conclusion of the court below that the

petitioners are bound to pay court fee for the said relief on the market

value of the plaint schedule properties as indicated in Ex.A.1 market

value certificate dt.27.07.2011, is unsustainable.

44. The court below also erred in observing that the relief of

injunction simplicitor cannot be treated as main relief since the relief

of declaration is also prayed for by the petitioners in the plaint. In the

facts and circumstances of the present case, the relief of injunction

sought by petitioners has to be held to be a main relief and cannot be

said to be an ancillary relief.

45. A plaintiff in possession and claiming title can

undoubtedly ask for relief of injunction as a primary relief and if he

does not prove either his title or possession, he may be denied such

relief, but that is a different matter.

46. The reliance on Section 24 by the court below in this

regard also cannot be sustained since the provisions therein would be

attracted only if the petitioners have sought a declaration of their title

and sought relief of possession/injunction or if they sought for a

declaration that documents to which they are parties are null and void

or a declaration of any nature other than one sought for in the plaint.

The said provision would have no application in a situation where the

petitioners are not parties to the documents which they wish to be

declared as null and void and not binding on them.

47. The other decisions in D.D. Nirmal Kumar (6 supra),

V. Rajeswara Rao (9 supra), V.Narender Reddy (10 supra),

Chirala Rate Payers and Civic Amenities Association (11 supra),

cited by counsel for respondents, have no application and turn on the

peculiar facts of those cases.

48. For the above reasons, I am of the opinion that the

impugned order cannot be sustained. It is accordingly set aside and

the C.R.P. is allowed. No costs.

49. As a sequel, the miscellaneous petitions pending, if any,

shall stands closed.

__________________________________

JUSTICE M.S.RAMACHANDRA RAO

Date: 27-10-2015