The plaint presented by the revision petitioners/plaintiffs seeking the relief of declaration of sale deed dated 07.11.2006 executed by their power agent/2nd defendant in favour of 1st defendant as null and void, was returned without taking the plaint on file, for payment of proper court fee under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act with two months time for proper presentation. In the order, the Court has observed that the relief of declaration of a document as null and void, to which the power agent is a party, is not sustainable. The plaintiffs ought to have prayed for cancellation of the sale deed and ought to have valued the suit as per the document and paid court fee under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act.
2.Aggrieved by the refusal to take the plaint on file and return of plaint, this revision petition is filed alleging that the finding of the Court below that suit ought to have been valued under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act is erroneous. The Court below overlooked the averments made in the plaint that the 2nd defendant though acted as power of attorney, acted fraudulently in collusion with the 1st defendant and beyond his authority and such act will not bind the plaintiff. The question of court fees must be based on the pleadings. Only in the trial, the plaintiffs can demonstrate and prove how fraud has been committed in the execution of the impugned document. So, it is sufficient to seek the relief to declare the sale deed executed by the power agent of the plaintiffs in favour of third party as null and void.
3.The learned counsel for the respondents submitted that the impugned sale deed was executed by the power agent of the plaintiffs while the power of attorney deed was in force. The act of the agent is the act of the principal. The revision petitioners cannot claim documents executed by their duly authorised agent as nullity. Therefore, the order returning the plaint without numbering to be present with proper court fees under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act is just and proper well within the law and procedure.
4.The points for determination in this case are whether the pleadings, relief and the court fees paid synchronise? whether return of plaint for payment of proper court fees under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act without trial is permissible in law?
5.As per the pleadings, the plaintiffs were tenants under Sri Sooravali Subbaiyar Trust in respect of the suit property. Later, they purchased the property from the Trust under sale deed dated 03.03.2000. Pursuant to the scheme decree passed in O.S.No.13/1932 on the file of the II Additional Sub Court, Madurai, they executed a power of attorney deed on 03.04.2000 appointing one A.K.Annadurai as their power agent. The said Annadurai is arrayed as 2nd defendant in the plaint. Based on the power of attorney deed, the power agent has entered into certain transactions in respect of the suit property with one Jabamalai, but kept his principals in complete dark without disclosing those transactions. He has also executed sale deed on 07.11.2006 in favour of the 1st defendant, which is now sought to be declared as null and void since it was created by the agent dishonestly and fraudulently. The cause of action to file the suit as framed in the plaint is as below:-
''The cause of action to file the above suit arose on 03.03.2000 when the 1st plaintiff purchased the property including the suit property. When the 1st plaintiff appointed the 2nd defendant as his Power of Attorney and on 07.11.06 when the defendants in collusion with each other created the sale deeds in respect of the suit property in favour of the 1st Defendant and on all those subsequent days when the defendants attempted to take possession of the suit property relying on such fraudulent sale deeds and the same was executed and registered at Madurai and the property is situated within Madurai Corporation area which is within the jurisdiction of this Hon'ble Court.''
6.The relief sought for in the suit is as below:-
''The plaintiffs therefore pray:
(i)That this Hon'ble Court may be pleased to declare that the Sale Deed dated 07.11.06 in favour of the 1st defendant and executed by the 2nd defendant in respect of the suit 1st schedule property and registered as Document No.3709 of 2006 with the Sub-Registrar, Tallakulam, Madurai as null and void and consequently pass an order of permanent injunction restraining the defendants their men, agents and servants from in any way disturbing the peaceful possession and enjoyment of the plaintiffs over the suit property described in the schedule to this plaint.
(ii)That the defendants may be directed to pay the cost of this suit
(iii)That such further or other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of this case can be granted.''
7.The suit property is valued at Rs.5,00,100/- and court fee paid is Rs.37,575/- under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act. Admittedly, the sale deed under challenge was executed by the power agent when the power of attorney deed executed by the plaintiffs/revision petitioners was in force. The title has been conveyed to the first defendant through the said sale deed.
8.
Section 226 of the Indian Contract Act reads as follows:- ''Enforcement and consequences of agent?s contracts.?Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person.
Illustrations
(a) A buys goods from B, knowing that he is an agent for their sale, but not knowing who is the principal. B?s principal is the person entitled to claim from A the price of the goods, and A cannot, in a suit by the principal, set- off against that claim a debt due to himself from B.
(b) A, being B?s agent, with authority to receive money on his behalf, receives from C a sum of money due to B. C is discharged of his obligation to pay the sum in question to B. (b) A, being B?s agent, with authority to receive money on his behalf, receives from C a sum of money due to B. C is discharged of his obligation to pay the sum in question to B."
9.The Agent on the basis of the power of attorney deed has alienated the property on behalf of the principals to third party. Therefore, prima facie, the sale deed is valid in the eye of law and binds the principals on whose behalf the power agent has entered into the sale transaction. Seeking the relief to declare the document as null and void amounts to cancelling the duly executed sale deed.
10.In Chellakannu vs. Kolanji reported in 2005 (5) CTC 190, Her Lordship Justice R.Banumathi(as she then was) has held as follows:-
''11. .......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 Sale Deeds if he is not a party to the Sale Deeds. But, since the Plaintiff himself is a party to the Sale Deeds before he is suing for any relief, the Plaintiff must first obtain the cancellation of the Sale Deeds.
12.The word "Cancellation" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suit is one for cancellation. in the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the Plaintiff cannot seek for any further relief without setting aside the Sale Deeds.''
11.The above view of Hon'ble Mrs.Justice R.Banumathi is reiterated in the subsequent judgment of Ms.Justice R.Mala in M.Abdul Muthalip vs. M.Samsudeen reported in (2009) 7 MLJ 899, wherein it has been held as follows:-
''21.As already discussed, the respondent herein filed a suit for declaration that the sale deed is not valid even though this Court come to the conclusion that in moffussil pleadings are to be construed liberally but the suit to be properly valued and court fees to be paid accordingly. Since Ex.A2 and Ex.A3 has been executed on the basis of Ex.B4 Power of attorney and execution of the power of attorney deed is admitted by the respondent/plaintiff so Ex.A2 and Ex.A3 are valid in law, if the respondent consider that it is a voidable one, he ought to have set aside the same or cancel the same by valuing the suit under seciton 40 of the "Act". But here he valued the suit only under
Section 25(a) of the "Act", which is not sustainable under law.
22.As already discussed, since the respondent herein has executed Ex.B4 power deed,While the same is in existence, an agent can execute a sale deed under Ex.A2 and Ex.A3 are in favour of the appellant himself as per the reported decision in AIR 1967 SC 181 that even an agent can purchase the property and as per the decision in 1938 Calcutta 573, principal cannot repudiate it merely because it is for agents benefit. Hence the respondent is estopped from contending that the sale deeds executed were unsustainable.''
12.The advantage of a third party to a document to file a suit to declare a document as null and void on the ground of fraud or collusion is not available to a party to the document either directly or through his power of attorney unless the power of attorney deed itself alleged to be a fraudulent and concocted document. In the former case, it is suffice for the third party to seek a declaratory relief under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act which reads as below:-
''25. Suits for declaration : In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under
section 26 --
(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on [rupees one thousand and five hundred], whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher;
(c) where the prayer relates to the plaintiff's exclusive right to use, shall, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees two thousand], whichever is higher;
(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand], whichever is higher.''
13.In the latter case, if any sale deed executed by the plaintiff or his power of attorney is challenged, the deed duly registered ought to be cancelled and it is a pre-requisite to nullify the earlier transfer of property. Hence, the court fee has to be paid as per Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act which reads as below:-
''40.Suits for cancellation of decrees, etc.---(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed; if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property. (2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.
Explanation.-- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.''
14.In this case also, the plaintiffs are parties to the sale deed since it was executed by their power agent when the power of attorney deed was in force. If the plaintiffs are aggrieved by the conduct of their agent and want to undo the act of their agent, they have to necessarily seek the relief to cancel the sale deed.
15.In the result, this Civil Revision Petition is dismissed. Since two months time granted by the Trial Court for re-presentation with proper court fee under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act has expired long back, in order to provide an opportunity to the revision petitioner to contest the suit on merits, time for re-presenting the plaint with proper court fee is extended upto 31.07.2017. The respondents are at liberty to resist the suit on all fronts available in law including the point of limitation. There is no order as to costs.
To The Principal District Court, Madurai..