ORDER

1. The petitioner has filed this Misc. Petition under Article 227 of the Constitution of India challenging the order dated 20.7.2023 passed by IVth Civil Judge Class-I, Gwalior (M.P.) in RCS A 168/2020 whereby, the application under Order 7 rule 11 CPC filed by respondent/defendant has been allowed and the petitioner has been directed to pay ad valorem court fees on the valuation done by him for the relief of declaration.

2. The plaintiff has filed a suit for declaration that the sale-deed executed by his mother, Smt. Krishna, on 8.8.2019 in favour of the defendant, who is sister of plaintiff, is null and void. He has also prayed for a decree of permanent injunction restraining the defendant from alienating the suit property. As per the plaintiff's case, the suit property was the self-acquired property of his father who purchased the same from its earlier owner on 5.11.1973. After purchasing the said plot, the plaintiff's father constructed the suit house out of his own earning. He has further pleaded in plaint that his father retired from Indian Army in 1991and thereafter started living in the suit house alongwith the family. It is pleaded in the plaint that the defendant taking disadvantage of the poor health condition of his father, got executed the sale-deed dated 08.08.2019 by playing fraud on her. Thus, he has prayed for declaration of the said sale-deed as null and void. The plaintiff has valued the suit at Rs.8,35,000/- and has paid fixed Court fees of Rs.500/- for the relief of declaration.

3. The respondent/defendant filed an application under Order 7 rule 11 CPC raising an objection that the plaintiff is required to pay ad valorem court fees for the relief of declaration claimed by him. The aforesaid objection is raised by the defendant on the ground that the relief of declaration of sale-deed as null and void has an effect of cancellation of the sale deed. Therefore, in view of provisions of section 7(IV)(c) of the Court Fees Act, the plaintiff is required to pay ad valorem Court fees on the valuation of Rs.8,30,000/-.

4. The petitioner/plaintiff opposed the prayer by filing the reply to the said application stating that since he is not a party to the sale deed, he is not required to pay the ad valorem court fees.

5. Admittedly, the plaintiff is not a party in the sale-deed. The sale-deed has been executed by the plaintiff's mother in favour of plaintiff's sister who is the defendant in the suit. The issue involved in this case is no more res integra in view of the law laid down by the Apex Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh reported in (2010) 12 SCC 112 wherein, the apex Court in para-6 held as under;

6. 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 difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the 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. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed Court fee of Rs. 19.50 under Article 17(i