Executants of a deed seeking annulment must pay ad-valorem court fee, while non-executants may only need to pay a fixed fee for a declaration of the deed's invalidity.

ORDER :

1. The petitioner/defendant has filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 19.01.2021 passed by the Additional District Judge, Badnagar Districti - Ujjain, whereby the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been dismissed.

2. Respondents No. 1 & 2/plaintiff filed a suit for declaration and permanent injunction in respect of land bearing Survey No. 115/2 area 3.380 hectare situated at Village - Nanyakhedi, Tehsil - Badnagar, District - Ujjain. According to the plaintiffs, they are the joint owner of the suit land and no partition has taken place. Plaintiff No. 1 was in need of money, for which he borrowed an amount of Rs.13,00,000/- from defendant No. 1. In order to execute the agreement, she was called in the office of Deputy Registrar, where defendant No. 1 obtained her signature on blank paper and got prepared a forged power of attorney. Again they were in need of money and requested defendant No. 1 to give a loan of Rs.15,00,000/-. Plaintiff No. 2 put thumb impression on blank paper in the Office of Deputy Registrar and the amount was paid to her by way of cheque. The plaintiffs paid the interest amount of Rs.3,69,000/- as they borrowed money from defendants. According to the plaintiffs, the defendants are pressurizing and threatening them to sell the land. According to the plaintiffs, the defendants got prepared forged agreement to sale dated 07.08.2019 and 22.10.2019 and power of attorney in the name of defendant No. 2 dated 07.08.2019 and 22.10.2019. Therefore, the sale deed dated 05.09.2020 and 11.09.2020 are void and not binding on them, hence, they filed a suit on 22.10.2020 for declaration and permanent injunction. Though the plaintiffs have valued the suit to Rs.1,50,00,000/- on the basis of value of the land mentioned in the sale deed, but paid the fixed amount of court fee payable for decree of declaration and permanent injunction.

3. The present petitioner/defendant appeared and filed an application under Order VII Rule 11 of the CPC that the plaintiffs are liable to pay ad-valorem amount of the court fee as they are party to the power of attorney as well as sale deed, hence, the suit be dismissed due to non-payment of the ad-valorem court fee. Vide impugned order dated 19.01.2021, the learned Court has dismissed the application by holding that the plaintiffs are seeking decree that the sale deeds are void and not binding on them and they are not the party to the sale deed, therefore, they are not liable to pay the ad-valorem court fee. Hence, the present petition is before this Court.

4. Learned counsel for the petitioner submits that the petitioner duly executed the power of attorney as well as sale deed and virtually they are seeking declaration that sale deeds be cancelled, therefore, they are liable to pay the ad-valorem court fee.

5. Learned counsel appearing on behalf of the plaintiffs submits that the plaintiffs are alleging that the sale deed has been obtained by way of fraud, therefore, they are not liable to pay the ad-valorem court fee and only declaration is liable to be granted.

6. I have heard learned counsel for the parties at length and perused the record.

7. The Apex Court in the case of Suhrid Singh Alias Sardool Singh vs. Randhir Singh & Others, (2010) 12 SCC 112 has held that if the executant of a deed wants to avoid the sale, he has to sue for cancellation of deed. On the other hand, if the joint owner of the property, who is not an executant of the deed wants to avoid the sale deed, he has to sue for a declaration that the deed executed by one of the co-sharer/co-owner is invalid/void and non est/illegal and he is not bound by it. Paragraph-7 of the said judgment is reproduced below:

“7. 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 invali