A non-executant seeking annulment of a deed has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him.

ORDER

The petitioner has proposed to file a suit before the District Munsif Court, Eraniel, Kanyakumari District, for declaring a settlement deed executed by the first defendant in favour of the second defendant as null and void and also for a permanent injunction. The petitioner has also paid the Court fee u/s.25(d) of the Tamil Nadu Court Fees and Suit Valuation Act. But the trial Court returned the plaint for payment of Court fee as per the decision in J.Vasanthi v. N.Ramani Kanthammal [2017 (11) SCC 852]. Aggrieved over such return, the petitioner has moved the present revision petition.

2.According to the petitioner, the first respondent is his mother and the second respondent is his younger brother. The suit schedule property originally belonged to his father, Thangaswamy. The said Thangaswamy executed a settlement deed in respect of the suit property in favour of his wife / the first respondent herein. The petitioner, the first respondent and the said Thangaswamy have jointly decided to construct a residential house in the suit property, with an arrangement to hand over the ground floor to the second respondent and the first floor to the petitioner. Accordingly, they have invested and have also constructed a residential house. In the meantime, Thangaswamy passed away. The petitioner along with his wife is residing in the first floor and the respondents 1 & 2 are residing in the ground floor.

3.The grievance of the petitioner is that the first respondent, after the demise of Thangaswamy, has executed a settlement deed dated 23.06.2022 in favour of the second respondent in respect of the entire property and on the strength of the settlement deed, the respondents are disturbing the peaceful possession of the petitioner. Therefore, he has preferred the suit for declarating the settlement deed dated 23.06.2022 as null and void and also for permanent injunction.

4.Learned Counsel for the petitioner submitted that since the petitioner is not a party to the settlement deed dated 23.06.2022 executed by the first respondent in favour of the second respondent, he has paid the Court fee as per Section 25(d) of the Act, however, the trial Court has returned the plaint for want of additional Court fee. Therefore, he prayed for appropriate orders.

5.This Court paid it's anxious consideration to the submissions made by the petitioner's Counsel and also to the materials placed on record.

6.In the decision in J.Vasanthi's case (supra), the plaintiff therein sought for declaring a sale deed as null and void, which was fradulently executed in her name. Therefore, on the question of payment of Court fee, the Hon'ble Supreme Court has held that the plaintiff is liable to pay the Court fee under Section 40 of the Act and not under Section 25(d) of the Act. The Court further held that declaration of a sale deed executed by the plaintiff as null and void, even if it is forged, amounts to cancellation of the deed and that the Court fee has to be paid as per Section 40 of the Act.

7.In the case on hand, the petitioner / plaintiff is not the executant of the settlement deed. Nor he is a party to the settlement deed. Therefore, this Court feels that the ratio laid down in J.Vasanthi's case (supra) would not apply to the facts of the present case. In this regard, this Court feels it appropriate to refer to the decision of this Court in Chellakannu v. Kolanji [2005 (4) CTC 197], wherein, it has been held as follows:-

“11. It is not as if the Plaintiff alone has executed the above Sale Deeds. Regarding Item No. 4, the Plaintiff has executed the Sale Deed along with his Daughter ? Jayanthi and Arjunan and Shanmugam, Son of Poomalai. Likewise, Sale Deed regarding Item No. 3 was executed by the Plaintiff Arjunan and Shanmugam, who are the sons of Poomalai. Thus, the Plaintiff himself is a party to the Sale Deed; when the Party himself seeks to get rid of the Sale Deeds in substance it amounts to Cancellation of Decree. The Plaintiff might seek to avoid the Sal