A.M. Naik, J. -- 1. This writ petition is preferred under Article 227 of the Constitution of India against the order dated 13.8.2008 passed by the Court of District Judge, Vidisha in Civil Suit No. 2A/08.

2. Short facts involved herein are that the plaintiffs/respondents No. 1 to 7 instituted a suit against defendant/petitioner and defendant/respondent No. 8 with the allegation that their predecessor namely, Sabdar Hussain (husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7) was owner of the suit property to the extent of one half. He was an old person with weak eye sight and weak mental faculty. A registered sale deed dated 24.4.2007 was got executed from him by the defendant/petitioner in respect of his share in the disputed land. Sale deed was for consideration of Rs.5,64,400/-, out of which Rs.2 lacs was shown to have been paid in advance. It was alleged that the consideration was not paid at all and the registered sale deed was got executed in collusion with the Sub-Registrar. Accordingly, a declaration has been sought that the registered sale deed dated 24.4.2007 is illegal and void. Possession and mesne profit are also prayed for.

3. Defendant/petitioner submitted an application under Order 7 Rule 11 CPC that the plaintiffs may be directed to pay ad valorem Court fees on Rs. 5,64,400/- being valuation of the sale deed.

4. Learned trial Judge dismissed the application by the impugned order holding that the plaintiffs were not party to sale deed and they cannot be directed to pay ad valorem Court fees on the valuation of the sale deed. This order has been challenged in the present writ petition.

5. Learned counsel for the parties argued at length.

6. Admittedly, the suit has been valued for the purpose of declaration at Rs.5,64,400/- being the valuation of the sale deed in question, which was executed by Sabdar Hussain, husband of the plaintiff No. 1 and father of plaintiffs Nos. 2 to 7. Property in question belonged to him. Thus, he was quite competent to execute the sale deed. Plaintiffs are bound by the sale deed unless the same is avoided. Although the relief clause is couched in declaratory form, the relief sought by the plaintiffs shall have the effect on canceling /avoiding it. Thus, it is governed by clause (c) of Section 7 (iv) of the Court Fees Act, 1870 and an ad valorem Court fees is payable as setting aside the sale deed dated 24.4.2007 is implicit in the declaratory relief sought by the plaintiffs.

7. We may successfully refer to the apex Court's decision in the case of Shamsher Singh v. Rajinder Prashad and others (AIR 1973 SC 2364). In the Shamsher Singh's case (supra), the plaintiff has prayed for declaration that the mortgage deed executed by the father in respect of joint family property was null and void for want of legal necessity and consideration. The apex Court observed that although the relief was couched in a declaratory form, the same was in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. It was further found that unless the decree was set aside, it would have remained executable against the son and it was essential for the son to ask for setting aside the decree. Likewise in the present case, if the sale deed executed by the Sabdar Hussain is not avoided, it will remain binding on the plaintiffs, who would not inheritate the property.

8. Shri Bansal, learned counsel appearing for the respondents relied upon Full Bench decision of this Court in the case of Santosh Chandra & others v. Gyan Sunder Bai & others (1970 JLJ 290), wherein it is observed :-

Thus all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability