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
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