T R SENGOTTAIYAN Vs. M L SENGOTTUVELAPPAN

JUDGEMENT

(1.) THE Plaintiffs in O.S.No.27 of 2008 on the file of the II additional District Munsif Court, Bhavani, are the Petitioners in the above Civil Revision Petition.

(2.) INITIALLY the Petitioners filed the said Suit seeking for a decree of permanent injunction and the Suit was filed on 23.1.2008. The case of the Petitioners is that the Petitioners have executed a Power of Attorney in favour of the Second Defendant on 24.1.2003.On 24.1.2003 itself the Petitioners executed a registered Sale Agreement in favour of Third Defendant. On 31.10.2006, the Power of Attorney Deed was cancelled by a registered instrument and the same was also informed to the Second Defended. Though the Power of Attorney had been cancelled, the Defendants 2 and 3 jointly executed a Sale Deed in favour of the First Defendant in respect of the suit properties on 5.11.2007. Though all these facts have stated in the Plaint, as a matter of abundant caution, the Petitioners wanted to amend the Plaint to include the prayer for declaration, that the Sale Deed executed by Defendants 2 and 3 on 5.11.2007 is null and void and is not binding on the Petitioners. Therefore, they filed I.A.No.4 of 2010 to amed the Plaint to include the prayer for declaration. The said amendment was opposed by the Respondent.

(3.) MR.N.Manokaran, learned Counsel for the Petitioners submitted that well prior to the execution of the Sale Deed, the Petitioners have cancelled the power given to the Second Respondent herein dated 24.1.2003, which was registered on the file of Bhavani Sub-Registrar-s office as document No.28 of 2003. The cancellation of the power was also duly informed to the Defendants 2 and 3. But the Defendants 2 and 3, even after cancellation of Power of Attorney, have created sham and nominal in the name of the First Respondent herein. The Sale Deed so brought above was illegal, invalid and void ab-initio in the eye of law. The Petitioners are not parties to the Sale Deed and they need not pray for cancellation of the Sale Deed. But it is enough if they seek for a prayer that the Sale Deed is null and void and is not binding on the Petitioners. The Suit has to be valued as per the averment contained in the Plaint and the Court fee paid by the Petitioners is correct. In support of the said contentions, the learned Counsel placed reliance on the following decisions reported in Suhrid Singh @ Sardool Singh v. Randhir Singh and other, 2010 CTJ 470 SC (1) Siddha Construction (P) Ltd., represented by its Power Agent, Anjay Sharman v. M. Shanmugam and other, 2006 (5) CTC 255: 2006 (4) LW 176 A. Murugesan v. Satheeshkumar and another, 2009 (1) TNCJ 93 (Mad) Chellakannu v. Kolanji, 2005 (5) CTC 190. In all the aforesaid decisions, it has been categorically held that where the executant of a deed wants it to be nullified, 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.