The plaintiff seeks remedy and prayed relief for the cancellation of the document dated 14.8.1986. The plaintiff wants to declare that the sale deed is null and void. Hence, the plaintiff has to pay necessary court fee under Section 40 of the Court Fees Act, on the value of the property, for which the document was executed. The money value mentioned in the document is Rs.14,500/-. Instead of paying court fee for the amount of Rs.14,500/- under Section 40 of the Court Fees Act, the plaintiff has paid Rs.30.50/- under Section 25(d) of the Court Fees Act, valuing the property at Rs.400/-. Framing of suit under Order 2 Rule 2 CPC is not maintainable. The maintainability of the suit has to be decided after due notice and hearing of the parties concerned and also may be collected necessary deficit court fee under Section 40 of the Court Fees Act, after making necessary amendment and due notice and hearing of parties."
5.On 18.9.2001, the court, the after going through the plaint averments and the check slip and also the objections filed by the plaintiff, came to the conclusion that the plaintiffs were minors at the time when the alleged sale deed was executed by their mother, as guardian and hence, there is a new point of limitation also to be heard and ordered for further hearing of the matter and after hearing, orders were passed on 3.10.2001, holding that the properties alleged to have been sold by their mother and the elder brother of the plaintiffs in the year 1986, during the minority of the plaintiffs 3 and 4, who were aged about 17 and 16 years respectively, and any alienation by the mother, as a guardian is binding upon the plaintiffs, who were the sons and daughters of the 2nd defendant and as such, they have to pray for setting aside the sale. Even according to the citations submitted by the plaintiffs' counsel, the limitation period is 3 years from the date of attaining majority of the minors to bring a suit to set aside the sale. A perusal of the documents reveal that the 3rd plaintiff was only aged 17 years and the 4th plaintiff 16 years. The 3rd plaintiff would have attained majority in the year 1990. Hence he could have brought the suit before the year 1993, i.e. before attaining 21 years of age and the 4th plaintiff was aged about only 16 years, he would have attained the age of majority in the year 1991 and hence, he should have brought the suit in the year 1994 itself. Whereas the present suit was filed in the year 1995. Hence, the suit is barred by limitation, in respect of the plaintiffs 3 and 4. The court held that in respect of the plaintiffs 3 and 4, the plaint is rejected. The plaintiffs 1 and 2 have prayed for declaration of the sale deed as null and void and therefore, they are ordered to pay the court fee accordingly and the said order is under challenge in this civil revision petition.
6.The learned advocate for the revision petitioners challenges the order on two grounds, viz.
i.That the plaintiffs challenge the alienation of the property by their mother and elder brother during the minority of the plaintiffs and therefore, they need not seek for cancellation of the sale deed and therefore, court fee paid under Section 25(d) of the Court Fees Act for declaration of the sale deed date 14.8.1986 as null and void, is sufficient.
ii.That the sale of minors' property can be questioned by the minors after attaining majority within a period of 12 years from the date of alienation and not within a period of 3 years from the date of minors attaining majority.
7.Heard both sides.
8.The learned advocate for the revision petitioners would contend that the suit property is a joint family property and when the plaintiffs were minors, the suit property was sold by their mother and elder brother and the said sale is not valid and binding upon the plaintiffs. As such, they need not pray for cancellation of the sale deed and the prayer for declaration that the sale deed is null and void is sufficient and the court fee paid under Section 25(d) of the Court Fees Act, is also proper.