1985 Supreme(MP) 747

IN THE HIGH COURT OF MADHYA PRADESH
P. C. Pathak, J.
Pannalal - Appellant
Vs.
Smt. Muliyabai - Respondent
C. R. No. 516 of 1983 (J)
Decided On : 03-12-1985

Headnote:(1) Court Fees Act, 1870 – S.7 (iv) (c) – plaintiff not party to sale – deed – sale – deed alleged to be void – no ad valorem Court fees need be paid – simple suit for declaration is enough.

       (2) Civil Procedure Code, 1908 – S. 115 – revision under – point not raised before lower Court – cannot be entertained under.

        Short Note

       1. Relevant facts are that Moolchand had three sons Devbaksh, Ghasiram and Pannalal (Plaintiff). Ghasiram died about 28 years ago. During his life time, he bad relinquished 1/3rd share in the joint family in favour of the plaintiff. Devbaksh died in 1977 leaving behind his widow Muliyabai non – applicant no. 1 and Shiv Narayan non – applicant no. 2 who claims to be his adopted son. By two sale – deeds dated 3 – 4 – 1979, non applicants no. 1 and 2 transferred half joint property, whereas, according to the plaintiff, their interest was only 1/3rd. The plaintiff, therefore, filed the present suit praying for declaration of his title over the suit property; and that the sale – deeds are not binding on him coupled with injunction in consequence thereof.

       2. On an objection raised by the defendants as to the sufficiency of the Court – feces, the learned trial Court, relying on Shamsher Singh v. Rajinder Prashad (AIR 1973 SC 2384) and some other decisions, held that the plaintiff, even though not a party, to the sale – deeds, feels that be is bound by the sale – deeds and that is why he wants those – sale – deeds to be declared void. The plaintiff was directed to pay advalorem Court fee on the value of sale – deeds.

       3. Held: After hearing counsel for both the parties, I am of the opinion that this revision must be allowed. It was not disputed before me that the plaintiff was not a party to the sale – deeds involved in the suit. That being so, the case is squarely governed by Partap Kunj v. Puniya Bai (1976 JLJ 703). In that case, it was laid down that where a person is a party to the transaction and his allegation is that is not binding on him, it is not necessary for him to seek relief of setting aside such transaction and the suit in that event will fall under Section 7 (iv) (c) of the Court Fees Act, but where it is wholly void, a mere declaration that it is so is sufficient and it is not necessary for the plaintiff to seek relief of setting aside something which has no existence in law. The plaintiff's case is that non – applicants no. 1 and 2 had no right or authority to transfer any land forming part of his 2/3rd interest in the joint family property. Shamsher Singh's case (supra) proceed on a different ground. In that case a mortgage decree passed against father was sought to be avoided by thee sons. On a consideration that the debt was a pious debt binding on the sons, they were required to pay advalorem Court – fees. In the present case, the sale – deeds are not binding in any manner whatsoever since the plaintiff was not a party to them. Learned counsel for non – applicants no. 3 to 5 also submitted that the plaintiff has prayed for injunction after paying Court fees of Rs. 30/ – only. This point was not raised before the learned trial Court nor there is any finding on such objection. Therefore, the submission cannot be entertained. AIR 1973 SC 2384 distinguished. 1976 JLJ 703 relied on. Revision allowed.