The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 449 of 2024 (An Application under Articles 227 of the Constitution of India) Abhaya Prasad Nayak ...… Petitioner -Versus- Suchismita Jena & Anr. .... ______________________________________________________ Opposite Parties For Petitioner : Mr. P.K.Lenka, Advocate For Opp. Party : None ______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 20th August, 2025 SASHIKANTA MISHRA, J.
Legal Reasoning
The petitioner is the plaintiff in C.S. No. 1022 of 2023 pending in the Court of learned Civil Judge (Senior Division), 1st Court, Cuttack. In the present application filed under Article 227 of Constitution of India, he seeks to challenge order dated 16.12.2023 passed by the Court below rejecting his prayer for not paying the ad-valorem court fees. Page 1 of 10 2. The facts of the case, relevant only for deciding the present application are that the Opposite Parties are the married daughters of the petitioner who, considering the depressed state of mind and ill health of the petitioner in the year 2022, resulting in his inability to look after the suit property properly, suggested at the instance of their husbands, to the plaintiff to execute a power of attorney in their favour. It was given out that being thus empowered, the power of attorney holders would take care of the plaintiff and his wife and also look after the suit property. The plaintiff, in good faith executed the power of attorney. Subsequently. when the Opposite Parties at the instance of their in-laws threatened to dispossess the plaintiff from the suit land asking him to vacate the two storied building standing thereon on the ground that the same had already been gifted by him to them, the plaintiff being in a shock, inquired and came to know that the opposite parties, taking advantage of his state of mind had fraudulently obtained a registered gift deed on 08.04.2022 while professing to execute a power Page 2 of 10 of attorney in their favour claiming that the so called gift deed was a contract of fraud and misrepresentation by the Opposite Parties and that the same had not been acted upon. The plaintiff thus filed the suit for declaration that the gift deed dated 08.04.2022 be declared as fraudulent, illegal, null and void and is not binding on him, along with consequential relief. The plaintiff valued the relief of declaration at Rs. 52,000/- and permanent injunction at Rs. 3,000/- and as such paid Court fee of Rs. 2834.25 on the total evaluation of Rs. 55,000/-. However, office note prepared by the Sheristadar pointed out defect that ad-valorem Court fees on the valuation of the property covered under the gift deed being Rs. 57,16,300/- had not been paid. Thus, deficit court fees were demanded as a condition for admission of the suit. The matter being placed before the Court below, the plaintiff claimed that the gift deed having been obtained by him by fraud, he cannot be treated as executant of the deed so as to be held liable to pay ad-valorem Court fees as pointed out in the office Page 3 of 10 note. He cited several judgments in support of his contention. The Court below, by the order impugned distinguished the judgments cited by holding that the petitioner being the executant of the deed is required to pay court fees taking into account the valuation of the property mentioned in the instrument.
Legal Reasoning
3. Heard Mr. P.K.Lenka, learned counsel for the plaintiff- petitioner. There was no appearance from side of the defendant-Opposite Parties despite valid service of notice. 4. Mr. Lenka would argue that though the plaintiff is shown to have executed the sale deed yet it is his specific case that the instrument purporting to be the power of attorney was actually a gift deed. The same was done by the defendant-Opposite parties without his knowledge, express consent and by misrepresentation of facts, which amounts to fraud. He has therefore sought for a declaration that the deed is fraudulent, illegal, null and void. As such despite being the purported executant the plaintiff, not actually being so, cannot be asked to pay Court fees on the valuation of the property involved in the Page 4 of 10 instrument. Mr.Lenka further argues that the judgment cited by the plaintiff were brushed aside only by holding that the same do not apply to the executant of the instrument without examining whether, in the facts of the case the plaintiff could at all be treated as the executant. 5. The facts of the case being as narrated above do not require reiteration. It would suffice to quote the relief claimed by the plaintiff in the plaint which is reproduced below: to admit graciously pleased the parties be pleased set-aside “In the circumstances, this Hon'ble court may kindly be this Civil Miscellaneous Petition and after hearing the counsel for both the impugned order dated 16.12.2023 (under Annexure- 5) directing the learned trial court to admit Civil suit No. 1022 of 2023 without demanding ad-volerum court fees on the valuation set forth in the Registered gift deed Gift deed No. 10392202642 dated 08.04.202 obtained by the Opp.Parties by committing fraud and misrepresentation in the garb of execution of the registered power of attorney in respect of the suit land and residential dwelling house of the petitioner for the interest of Justice. And/Or Pass such or such or such other order/orders direction/directions as may be deemed just and proper in the present facts and circumstances of the case. And for this act of kindness, the petitioner as in duty bound shall ever pray.” Page 5 of 10 It is well settled that the question of Court fee must be considered and determined in the light of allegations made in the plaint. The judgment of this Court in the case of Akhatra Malidevi vrs. Chandrasekhar Nayak, AIR 1977, ORI 61 may be referred to in this regard. 6. Considering the case at hand on the anvil of the above proposition of law and reading of the plaint in its entirety reveals that the case of the plaintiff is that the gift deed dated 08.04.2022 was obtained by the defendants by committing fraud and mis-representation taking advantage of his depressed state of mind and further that the same has not yet been acted upon. It is thus alleged that the so-called gift deed is a nominal and paper transaction having no force of law as the plaintiff continues to possess the property. Thus, it appears from the plaint that the plaintiff had been to the registration office to execute a deed of power of attorney and by exercising fraud the defendants managed to take the impugned deed of gift. The contents of the document, according to the plaintiff, were never the Page 6 of 10 version of the plaintiff and the same were nothing but the outcome of misrepresentation of facts. So, the character of the impugned document is under challenge in the instant suit. In other words, the plaint suggests that the plaintiff had not executed the impugned deed of gift. Thus, the plaintiff’s challenge is with regard to the character of the impugned document. According to him, the deed is a void document which is therefore, non-est in the eye of law. In a situation like this, the plaintiff is not required to seek its cancellation. In the case of Suhrid Singh @ Sardool Singh vrs. Randheer Singh, AIR 2010 SC 2807 the Supreme Court has held that where the executant of deed wants to have it annulled, he must seek cancellation of the deed. In the case of SM. Rajani Bala Rakshit vrs. Biswanath Rakshit and Ors., AIR 1981 Cal 189 it is held as follows; “12. Relying on these decisions Mr. Bagchi argued that it was clearly unnecessary for the plaintiff to have asked for setting aside the document or for cancellation. She was entitled to sue for partition basing her claim on the original title, ignoring the transfer which she never executed. This argument is not without substance. The legal position would have been different had the plaintiff complained that by fraudulent representation she was induced to enter Page 7 of 10 into the transaction of whose nature however she was aware or that there had been fraud with reference to the terms of the deed or the contents thereof. In such a case it would have been necessary to sue to set aside the deed. But here the complaint of the plaintiff its totally of a different character namely, that it was represented to her that she was executing a power of attorney only. There is a distinction between misrepresentation as to the character of a deed and misrepresentation as to its contents. In the former case the transaction is void and not merely voidable. XX XX XX 15.In the Lahore case it was further observed that the question whether the plaintiff is or is not a party to the deed in question does not furnish a satisfactory or conclusive test for determining the Court-fee payable. XX XX XX 18.In the instant case, we have found that the plaint assertion plainly is that she was given to understand that a power of attorney was being done and she lent her signature on such representation. Therefore, in law, there was no valid execution, the mind of the applicant not having accompanied her signature. Such a case, if proved, would render the deed void. In this case the misrepresentation is both as regards the contents as well as to the character of the document, and as such the transaction is wholly void. In such a suit it is not necessary to seek a relief of setting aside the document and no consequential relief is implicit in the relief asked for.” Thus, where the executant challenges a deed as to its character and proves the same the deed becomes a void document. In a suit of this nature the plaintiff is required to value the suit as per the relief, sought in the plaint and not on the market price of the subject-matter or as per the price mentioned in the document. This is what has Page 8 of 10 been done in the present case. The Court below has not kept this in mind while holding that the plaintiff being the executant of the deed has to pay Court fees on the valuation of the property involved in the deed. This Court is unable to concur with the reasoning of the Court below for the reason that the plaintiff has not come forward to annul or cancel the deed and rightly so, as it is his simple assertion that he had never executed the deed as it purports to be. 7. From what has been narrated hereinbefore, this Court is convinced that the plaintiff’s case being based on the allegations as to the character of the document as a void document arising out of fraud, he cannot simply be treated as the executant of the so-called gift deed so as to be asked to pay ad-valorem court fees on the valuation of the property mentioned in the deed. The impugned order therefore, cannot be sustained.
Decision
8. In the result, the CMP is allowed. The impugned order is set aside. The Court below is directed to accept the Page 9 of 10 court fees already paid by the plaintiff as per valuation of the relief claimed in the plaint. Deepak ……..………………….. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 22-Aug-2025 17:37:46 Page 10 of 10