Whether it is Necessary to seek Cancellation of Sale Deed if it was Executed during Pendency of Suit

Saturday, 26 October 2019

Whether it is necessary to seek cancellation of sale deed if it was executed during pendency of suit?

 In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which the vendor of Bala Mallaiah, Defendant 1 was found to be having share only to the extent of 14/104th.  { Para 48}

 Therefore, it is settled legal position that the effect of Section 52 is not to render transfer effect during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit and the pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. Therefore, in the present suit defendant No. 2 is bound by the decree which may be passed against defendant No. 1. Admittedly, by virtue of compromise decree in R.A. No. 272/2004 defendant No. 1 is aware that the suit property was allotted to the share of plaintiffs and he had no right title and interest so as to transfer the same in favour of defendant No. 2 by executing registered sale deed dated 02.05.1997 as per Ex. D1. In spite of knowing consequences of the same, defendant No. 1 executed the sale deed during the pendency of suit bearing O.S. No. 45/1994. Therefore, the said sale deed is hit by Section 52 of Transfer Property Act. Though, it cannot be held as void ab initio, as held by the Hon'ble Supreme Court in the judgment referred supra, Pendente lite purchaser defendant No. 2 herein is bound by the decree passed in the suit against his vendor.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

RSA No. 1346/2007

Decided On: 24.04.2019

 Gurushantappa  Vs. Shankar and Ors.

Hon'ble Judges/Coram:

P.G.M. Patil, J.

Citation: AIR 2019 Karnat 113

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Plaintiff filing suit seeking Declaration regarding Cancellation of Gift Deed and Sale Deed

Plaintiff filing suit seeking declaration regarding cancellation of gift deed and sale deed - He has only sought the consequential relief of injunction - Plaintiff is not required to pay ad- valorem Court fee Posted: 05 May 2016 07:32 AM PDT PUNJAB AND HARYANA HIGH COURT Before :- Ram Chand Gupta, J. Civil Revision No. 1029 of 2010 (O&M). D/d. 15.3.2011. Narinder Kumar - PetitionerVersusNaresh Kumar and others - Respondents For the Petitioner :- Mr. S.D. Bansal, Advocate. For the Respondent No. 1 and 2 :- Mr. K.G. Chaudhary, Advocate. For the Respondent No. 4 :- Mr. Ramesh Pal Daaria, Advocate. For the Chandigarh Administration :- Mr. Harsimran Singh Sethi, Advocate. For more detail about this judgment, please contact our helpline number : 094177-67177 or visit our contact us page. Cases Referred : Suhrid Singh @ Sardool Singh v. Randhir Singh , 2010(2) RCR (Civil) 564 : 2010(2) RAJ 436. Surinder Singh v. Narinder Singh, 2010(4) R.C.R. (Civil) 139. JUDGMENTRam Chand Gupta, J. - The present revision petition has been filed under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure (hereinafter to be referred as 'the Code') for setting aside the impugned order dated 19.1.2010, Annexure P1, passed by learned Civil Judge, Read full Judgment » Compiled by Puneet Batish, Advocate for Online Law Reporter 'http://law.geekupd8.com for providing latest updates on Criminal, Civil, Revenue, Immigration laws, how-to's, bare acts and much more.

Sale of Co-Parcenery Property by Father - Son filing Suit for a Declaration that Sale Deeds were Void

Sale of co-parcenery property by father - Son filing suit for a declaration that sale deeds were void and not binding on the co-parcenery- He has to merely pay a fixed Court fee of Rs. 19.50

Posted: 28 Aug 2016 06:56 PM PDT

SUPREME COURT OF INDIA

Before :-R.V. Raveendran & R.M. Lodha, JJ.

Civil Appeal Nos. 2811-2813 of 2010, [Arising out of SLP [C] Nos. 6745- 47/2009]. D/d. 29.03.2010.

Suhrid Singh @ Sardool Singh - AppellantVersusRandhir Singh & Ors. - Respondents

For the Appellant in person :- Suhrid Singh.
For the Respondent :- Labh Singh Bhangu and Ms. Madhu Moolchandani, Advocates.

For more detail about this judgment,

please contact our helpline number : 094177-67177

or visit our contact us page.

JUDGMENT
R.V. Raveendran, J. - Leave granted.
The appellant filed a suit (Case No. 381/2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarizes below :

(i) for a declaration that two houses and certain agricultural lands purchased by his father

Read full Judgment »

Compiled by Puneet Batish, Advocate for Online Law Reporter 'http://law.geekupd8.com for providing latest updates on Criminal, Civil, Revenue, Immigration laws, how-to's, bare acts and much more.     Supreme-CourtFree-Legal-Advice

Sale of co-parcenery property by father - Son filing suit for a declaration that sale deeds were void and not binding on the co-parcenery- He has to merely pay a fixed Court fee of Rs. 19.50

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SUPREME COURT OF INDIA

Before :-R.V. Raveendran & R.M. Lodha, JJ.

Civil Appeal Nos. 2811-2813 of 2010, [Arising out of SLP [C] Nos. 6745- 47/2009]. D/d. 29.03.2010.

Suhrid Singh @ Sardool Singh - AppellantVersusRandhir Singh & Ors. - Respondents

For the Appellant in person :- Suhrid Singh.
For the Respondent :- Labh Singh Bhangu and Ms. Madhu Moolchandani, Advocates.

For more detail about this judgment,

please contact our helpline number : 094177-67177

or visit our contact us page.

JUDGMENT
R.V. Raveendran, J. - Leave granted.
The appellant filed a suit (Case No. 381/2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarizes below :

(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were co-parcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;

(ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third defendant, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est "qua the co-parcenary";

(iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S.Rajender Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "co-parcenary", as they were not for legal necessity or for benefit of the family; and

(iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.

2. The appellant claims to have paid a court fee of Rs. 19.50 for the relief of declaration, Rs. 117/- for the relief of joint possession, and Rs. 42/- for the relief of permanent injunction, in all Rs. 179/-. The learned Civil Judge heard the appellant-plaintiff on the question of court fee and made an order dated 27.2.2007 holding that the prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and therefore ad valorem court fee was payable on the sale consideration in respect of the sale deeds.
3. Feeling aggrieved the appellant filed a revision contending that he had paid the court fee under section 7(iv)(c) of the Court-fees Act, 1870; and that the suit was not for cancellation of any sale deed and therefore the court fee paid by him was adequate and proper. The High Court by the impugned order dated 19.3.2007 dismissed the revision petition holding that if a decree is granted as sought by the plaintiff, it would amount to cancellation of the sale deeds and therefore, the order of the trial court did not call for interference. The application filed by the appellant for review was dismissed on 11.2.2008. The application for recalling the order dated 19.3.2007 was dismissed on 24.4.2008 and further application for recalling the order dated 24.4.2008 was dismissed on 16.5.2008. Feeling aggrieved, the appellant has filed these appeals by special leave.
4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not 'binding on the co-parcenary', and for the consequential relief of joint possession and injunction.
5. Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab ('Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs. 19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides :

"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

(iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

In all such suits the plaintiff shall state the amount at which he values the relief sought:

Provided that minimum court-fee in each shall be thirteen rupees.

Provided further that in suits coming under sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section."

The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.

6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' - two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
8. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments.

Appeals allowed.

An Attesting Witness of a Sale Deed is Not Bound by the contents of the Sale Deed - He can always Deny its Contents

An attesting witness of a sale deed is not bound by the contents of the sale deed - He can always deny its contents Posted: 18 Sep 2016 04:13 PM PDT PUNJAB AND HARYANA HIGH COURT Before :- M.M. Kumar, J.  Regular Second Appeal No. 1201 of 2003. D/d. 3.7.2003 Ramesh Chander - AppellantsVersusBudha Singh - Respondent For the Appellants :- Shri B.R. Mahajan, Advocate. For more detail about this judgment, please contact our helpline number : 094177-67177 or visit our contact us page. JUDGMENTM.M. Kumar, J. - This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that plaintiff- appellants have failed to prove that the portion of the compound was in joint ownership of Khazan Singh and defendant respondent Budha Singh. Read full Judgment » Compiled by Puneet Batish, Advocate for Online Law Reporter 'http://law.geekupd8.com for providing latest updates on Criminal, Civil, Revenue, Immigration laws, how-to's, bare acts and much more.