1980 Supreme(MP) 324

C. P. Sen, J.
Thumaribai v. Mankibai.
C. Revn No. 704 of 1978 (I) ; Decided on 3-10-1980.

Headnote:(1) Suit Valuation Act, 1887-S. 4-suit for declaration of title-vatu-ation how to be determined-whether it is necessary to seek cancellation of sale-deed in every case-distinction between void and voidable transaction what is.

       (2) Court fees -when need not be paid on amount of transaction-transaction void-it ts not necessary to get it cancelled and pay Court fees on its amount.

       The plaintiff No.1 is the wife, and the plaintiff No.2 and the defendant No.1 are daughters of defendant No.2. The plaintiff s case is that the defendant No.2 is aged about 80 years and he was Li"Ving with the defendant No.1 Taking advantage of this fact and by practising fraud and misrepresentation, the defendant No.1 got a registered sale-deed from the defendant No.2 of 21. 83 acres of land on showing consideration of Rs.5.000 although nothing was paid after the defendant No.2 expressed his desire to gift a portion of the suit land to the defendant No.1 for the services rendered. As such the sale is void and inoperative. The plaintiffs, therefore, claimed declaration that the sale is not binding on them and for possession of the suit lands. The defendant No.1 opposed the claim and also contended that the suit has not been properly valued. The plaintiffs should also seek a prayer for cancellation of the sale-deed. The defendant No.2 supported the case of the plaintiffs. The trial Court held that the plaintiffs must also seek relief of cancellation of sale deed and the order has been affirmed in appeal. The plaint has been returned for presentation to the proper Court.

       Held: The orders of the Courts. below cannot be sustained. The lower Courts have failed to note the distinction between void and voidable transaction. In case of void transaction, it is not necessary to get the transaction set aside but in case of voidable transaction, the transaction is valid unless it is set aside

       The decision of the Supreme Court in Shamsher Singh v Rajender prasad (AIR 1973 SC 2384) has no application to the facts of the present case. There it was held that the sons are bound by the sale effected by their father and so they have to seek relief for cancellation of sale-deed. But that was a case of valid transaction and not of void transaction. Since in the present case the salt-deed has been taken from the defendant No.2 by the defendant No 1 on the fraudulent representation tint it was merely a gift deed for a portion of the suit land, the transaction is void, more so the sale is without consider non, Therefore, the plaintiffs have properly valued the claim for decLtrath.f1 at Rs.300 and paid Court-fee stamps of Rs.30 and claim for possession, 20 times the land revenue and paid Court-fee stamp of Rs.36. AI R 1968 SC 956 relied on. AIR 1973 SC 2384 distinguished, Revision allowed.