Legal representatives can raise objections regarding sale deed validity if executor has died, without needing to pay additional Court fees under specific conditions.

ORDER

(Passed on 26/10/2021)

This petition under Article 227 of the Constitution of India has been filed against the order dated 08/07/2021 passed by Tenth Additional District Judge, Gwalior, in Civil Suit No.296-A/2021, whereby application filed by the petitioner/defendant No.2 under Order 7 Rule 11 of CPC read with Section 151 CPC for rejection of plaint has been dismissed.

2. The facts of the case, in brief, are that the plaintiffs/ respondents No.1 to 4 had filed a civil suit for declaration and permanent injunction with the prayer to declare the agreement dated 12/09/2018 and sale deed dated 15/02/2019, null and void as the same were executed without consent of the plaintiffs and also as the land in question is the ancestral property which is possessed and owned by the plaintiffs. In the plaint, the plaintiffs averted that the land bearing survey No.1002/1 min-1 area 0.586 hectare situated at village Shankarpur, Patwari Halka No.54, District Gwalior, is ancestral property and the same was owned by their ancestors and at present owned and possessed by the plaintiffs. The land originally owned by late Shri Savdhan Singh @ Sadhan Singh and after his death the land was owned by his son Ram Singh who also died on 29/12/2020 at Gwalior. Plaintiff No.1 is the wife of Ram Singh and daughter-in-law of Sadhan Singh, plaintiffs No.2 & 3 are son of late Shri Ram Singh and plaintiff No.4 is grandson of Ram Singh and all the plaintiffs are in possession of the suit land.

3. After death of Ram Singh, plaintiffs came to know about one agreement dated 12/09/2018 and also came to know that a sale deed was executed on 15/02/2019 in favour of the petitioner/ defendant No.2, in which defendant No.1 was the witness, which is related to land bearing survey No.1002/1 min-1 area 0.575 hectare out of total area of 0.586. The said land was purchased by the petitioner/defendant No.2 and he also get mutated his name in revenue record and also executed some of the sale deeds to other persons. Hence, plaintiffs/ respondents No.1 to 4 filed the civil suit for cancellation of sale deed. After filing of the suit, trial Court issued summons to the defendants and after service, defendants appeared before the trial Court. Petitioner/ defendant No.2 moved an application under Order 7 Rule 11 of CPC before the trial Court for rejection of plaint on the ground that the plaintiffs are seeking the decree of cancellation of sale deed and the suit is filed in the capacity of legal representatives of Ram Singh who was the executor of the sale deed, therefore plaintiffs are required to pay the ad valorem Court fee as provided under Section 7(iv)(c) of the Court Fees Act, which was not paid by them. The trial Court vide impugned order dated 08/07/201, dismissed the application filed by the petitioner/ defendant No.2, with the finding that while deciding the application filed under Order 7 Rule 11 CPC, only the pleadings of the plaint is to be taken into consideration and according to the pleadings of the plaint, plaintiffs have paid the complete Court fee and they were not required to pay the ad valorem Court fee. Being aggrieved by the aforesaid impugned order of Court below, petitioner filed this petition.

4. Learned counsel for the petitioner has submitted that the order passed by the Court below is illegal, arbitrary and against the well settled principle of law as the Court below has passed the order without considering the fact as averted in the application filed by the petitioner under Order 7 Rule 11 of CPC, even not go through the averment of the plaint while deciding the application and cited judgments were not considered. It is furt