IMPORTANT POINT
IMPORTANT POINT
A sale deed executed after the cancellation of a power of attorney is void and does not require payment of ad valorem court fees.

ORDER :

Hirdesh, J.

1. The present petition is preferred by petitioner under Article 227 of the Constitution of India seeking following reliefs :

"(7). 7.1 That, the order dated 07.07.2023 (Annexure P-1) may kindly be set aside/quashed.

7.2. Any other relief which this Hon'ble Court may deemed fit in the circumstances of the case be also be granted."

2. Brief facts of the case are that plaintiffs executed a power of attorney in favour of respondent No.1 dated 27.10.1995 (annexure P-2) and after some time, petitioner/plaintiffs cancelled the power of attorney dated 09.05.2003 by Registrar Office [cancelled power of attorney (annexure P-3)]. Even that respondents/defendants executed a sale deed in favour of Manoj Bhargava who is son of respondent No.1 and who is earlier power of attorney holder of plaintiffs dated 24.01.2012 (annexure P-4). Petitioners filed a civil suit for cancellation of sale deed dated 24.01.2012. Respondents/defendants after appearing before the trial Court filed an application under Order 7 Rule 11 CPC for rejection of the plaint on 19.12.2022. After hearing counsel for the parties, trial Court passed the impugned award dated 07.07.2023 and directed the petitioners to deposit the ad valorem court fee according to the Order 7 Rule 11(b) of CPC.

3. Being aggrieved of impugned order dated 07.07.2023, petitioners filed this petition and submitted that respondent No.1/defendant executed a sale deed after cancellation of power of attorney, which shows her mala fide intention and committed forgery with the petitioners and the same is against the procedure of law. The principle of law is that anyone cannot sale any property if they have not any right in the property. Respondent No.1 has no right to sale the property after the cancellation of power of attorney dated 09.05.2003. So, sale deed does not create any right to the defendant No.2. It is settled principle of law that ad valorem court fee deposited on sale deed is voidable and plaintiffs are the party of sale deed, then he should pay the ad valorem court fee, but in the present case, sale deed is already void and defendant no.1 executed the sale deed in favour of defendant no.2 after cancellation of her power of attorney holder on 09.05.2003. Hence, impugned order passed is against the law and is deserves to set aside.

4. Learned counsel for respondents submitted that plaintiffs are liable to pay ad valorem court fee as sale deed was executed by her power of attorney holder, therefore, they have stepped into the shoes of the executant of the sale deed, therefore, they are liable to pay the ad valorem court fee. In support of their submission, counsel for respondents placed reliance on the judgment passed in the case of Vishnuprasad Sharma vs. Rajendra Chouhan and Ors. in WP No.1614/2016 vide order dated 04.01.2018 by this Court at Indore Bench.

5. After hearing counsel for the parties, it is clear that plaintiff alleging fraud by defendant No.1 in respect of execution of sale deed. Plaintiff executed a power of attorney in favour of defendant No.1 on 27.10.1995, but subsequently cancelled the power of attorney by way of registered deed on 09.05.2003. After cancellation of registered deed, defendant No.1 executed a sale deed on 24.01.2012 in favour of defendant No.2 who is the son of defendant No.1.

6. It is clear that when plaintiffs make allegation that the instrument is void and hence not binding on him and seeking declaration of null and void of sale deed, so he is not required to pay ad valorem court fee.

7. In the case of Sunil v/s Awadh Narayan & Ors 2010 (4) MPLJ 431 it was held that if a registered document is cancelled by registered cancellation deed, then cancellation operates as constructive public notice. So, when the power of attorney which was executed in favour defendant No.1 was cancelled by registered deed on 09.05.2003, thereafter, defendant No.1 executed a sale deed i