Executant versus Non-Executant of an Instrument

A single question decides how a suit about a deed is framed and what court fee it bears: was the plaintiff a party to, or otherwise bound by, the instrument? The person who executed the deed, or is bound by it, must sue to cancel it; a stranger to the deed need only a declaration that it does not affect him. This note explains each position in its own right, compares them, works through an example, and states the rule from Suhrid Singh v Randhir Singh.

Figure: Executant and non-executant compared, from who each is to the court fee, and the test that decides the frame

1. The Executant in Its Own Right

The executant is a party who executed the instrument, or is otherwise bound by it. Because the deed operates against him, it stands as a live document affecting his rights until it is set aside. A mere declaration will not help him: so long as the deed exists and binds him, it can be used against him. He must therefore sue for cancellation under Section 31, have the deed adjudged void and delivered up, and, because the relief is valued on the instrument, pay ad valorem court fee on its value. He may claim possession as a consequential relief where he is out of possession.

2. The Non-Executant in Its Own Right

The non-executant is a stranger to the instrument, not a party to it and not bound by it. The deed does not operate against him; at most it appears to cloud his right. Because he is not bound, he need not have the deed cancelled; it is enough for the court to declare that the deed does not affect him. He therefore sues for a declaration under Section 34, on a fixed court fee, though if he must also seek possession or an injunction he will pay ad valorem on that consequential relief.

3. The Two Positions Compared

4. The Test, and Why It Matters

5. A Worked Example

A father executes a sale deed of the joint family property in favour of a purchaser. Two different plaintiffs may challenge it, and they must frame their suits differently. The father himself, if he later says the sale was void, is the executant; the deed binds him until set aside, so he must sue for cancellation and pay ad valorem court fee on the sale price. His son, who was no party to the deed and whose share the father had no right to sell, is a non-executant; the deed does not bind the son's share, so the son need only sue for a declaration that the sale does not affect his share, on a fixed court fee. Same deed, two plaintiffs, two frames, two very different court fees, exactly as Suhrid Singh explains.

6. Frequently Asked Questions

Q. Who is an executant, and what must he do?
A. A party who executed the deed or is bound by it. Because it binds him, he must sue to cancel it under Section 31 and pay ad valorem court fee on its value.

Q. What does a non-executant seek?
A. A declaration under Section 34 that the deed does not bind or affect him, on a fixed court fee, because he is a stranger to the deed and it does not bind him.

Q. Why does the distinction affect court fee?
A. Cancellation is valued on the instrument, so it attracts ad valorem fee; a bare declaration attracts a fixed fee, as Suhrid Singh v Randhir Singh holds.

Q. What if the non-executant is out of possession?
A. He must also claim possession or other consequential relief, and that consequential relief attracts ad valorem court fee, over and above the declaration.