IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 4974 of 2006 DATE OF DECISION : 11.11.2009 Raj Kumar .... PETITIONER Versus Anil Kumar and others ..... RESPONDENTS C.R. No. 4975 of 2006 DATE OF DECISION : 11.11.2009 Raj Kumar .... PETITIONER Versus Anil Kumar and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Baldev Raj Mahajan, Advocate, for the petitioner. Mr. B.R. Gupta, Advocate, for the respondents. * * * SATISH KUMAR MITTAL , J. This order shall dispose of Civil Revisions No. 4974 and 4975 of 2006. Both these petitions have been filed by the plaintiff, challenging the orders passed by the trial court in two separate suits, filed by the same CR No. 4974 of 2006 -2- plaintiff, whereby he has been directed to affix the ad valorem court fee on the value of the suit properties i.e. agricultural land and a house, involved in both the suits, which have been assessed as Rs. 1,00,970/- and Rs. 1,20,170/-. Civil Revision No. 4974 of 2006 is arising from the civil suit, filed by the petitioner claiming that he and performa defendant No.5 (mother of the petitioner) are owners in possession of 2/3rd share of the agricultural land measuring 55 kanals 4 marlas and defendant No.4 (father of the petitioner) is owner in possession of remaining 1/3rd share in the said land, and the sale deed dated 8.6.2005, executed by defendant No.4 with regard to the entire land in favour of defendants No.1 to 3, the alleged sons of defendant No.4, is illegal, null and void and not binding on the rights of the plaintiff and performa defendant No.5 and the same is liable to be set aside, with consequential relief. In this suit, the plaintiff has been directed to pay the ad valorem court fee on the value of the suit property i.e. agricultural land, as mentioned in the sale deed i.e. Rs. 1,00,970/-. Civil Revision No. 4975 of 2006 has arisen from the civil suit, wherein the plaintiff has challenged a gift deed dated 23.3.2006 executed by defendant No.4 (father of the plaintiff) in favour of defendants No.1 to 3, pertaining to agricultural land measuring 53 kanals 17 marlas and a house situated in Mohalla Ram Niwas, Fatehabad, which is the ancestral and coparcenary joint hindu family property, in which the petitioner has a right and alienation of the coparcenary property by the father (defendant No.4) is CR No. 4974 of 2006 -3- illegal, null and void and not binding on the rights of the plaintiff. Learned counsel for the petitioner argued that in both the suits, in addition to the declaration, the plaintiff-petitioner has also prayed for consequential reliefs, like possession and permanent injunction, therefore, he is liable to affix the court fee under Section 7 (iv) (c) read with Section 7 (v) of the Court Fees Act, 1870 (hereinafter referred to as `the Act') as applicable in Haryana. In support of his contention, learned counsel for the petitioner has relied upon judgments of this Court in Smt. Beena and others v. Rajinder Kumar and others, 2006 (2) PLR 6, Ishwar v. Smt. Om Pati and others, 2006 (2) PLR 859 and Bhagwan Kaur and others v. Amrik Singh and others, 2006 (3) PLR 649. Learned counsel argued that the trial court, while wrongly relying upon a decision of this Court in Jagdish v. Jagat Pal, 2003 (2) Civil Court Cases 635, has held that the plaintiff- petitioner is required to pay the ad valorem court fee on the market value of agricultural land and house, mentioned in the sale deed and the gift deed. On the other hand, learned counsel for the respondents, while relying upon the decision of the Supreme Court in Shamsher Singh v. Rajinder Prashad and others, AIR 1973 Supreme Court 2384 and decisions of this Court in Bagrawat v. Mehar Chand, 2002 (1) Civil Court Cases 12, Himanshu v. Smt. Kailash Rani and another, 2004 (3) PLR 513 and Jagdish v. Jagat Pal and others, 2003 (2) PLR 403, argued that in both the suits, the plaintiff-petitioner is challenging the sale deed and the gift deed, executed by his father, and without getting these documents set aside, CR No. 4974 of 2006 -4- consequential relief claimed by him cannot be granted, therefore, even though the suit property is alleged to be ancestral, the plaintiff is liable to pay the ad valorem court on the value, as mentioned in the sale deed and the gift deed, and not in accordance with Section 7 (iv) (c) read with Section 7 (v) of the Act. After considering the submissions made by learned counsel for the parties and going through the various judgments, cited by them, I am of the opinion that the plaintiff-petitioner is bound to affix the ad valorem court fee in terms of Section 7 (iv) (c) as quantified in Section 7 (v) of the Act. In Smt. Beena's case (supra), the learned Single Judge of this Court, after considering the Full Bench decision of the Lahore High Court in Zeb- Ul-Nisa v. Din Mohammad, AIR 1941 Lahore 97, the Full Bench decisions of this Court in Vishwa Nath and another v. Smt. Sita Bai Anand and others, AIR 1952 Punjab 335 and in Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127, the judgment of the Supreme Court in Shamsher Singh's case (supra) and the other judgments, delivered by this Court, including Jagdish's case (supra), which has been relied upon by the trial court, in the similar circumstances, has held that in such a case, the plaintiff is liable to pay the court fee in terms of Section 7 (iv) (c) as quantified under Section 7 (v) of the Act. It has been specifically observed that two judgments of this Court in Bagrawat's case (supra) and Jagdish's case (supra) run counter to the judgments given by this Court in Prabhu and others v. Girdhari, AIR 1965 Punjab 1, and Niranjan Kaur's case (supra) as well as decision of the CR No. 4974 of 2006 -5- Supreme Court in Shamsher Singh's case (supra). In Bhagwan Kaur's case (supra), the learned Single Judge of this Court observed as under : “5. However, I am unable to agree with the argument raised by learned counsel for the petitioners. The argument raised by the learned counsel for the petitioners is misconceived in law. The judgment of Full Bench of this Court in Niranjan Kaur's case (supra) is not being read correctly by the learned counsel for the petitioners. The Full Bench was seized of a case where the plaintiff, who was a party to a document, filed a suit for cancellation of a registered document and also sought possession as a consequential relief thereof. It was found that in order to bring the case under Section 7 (iv) (c) of the Court Fees Act, 1870 (hereinafter to be referred as “the Act”), the main and substantive relief should be that of declaration and the consequential relief should be ancillary thereto. If no consequential relief is claimed or could be claimed in the suit, then Section 7 (iv) (c) of the Act will not be attracted. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act shall be applicable. The Full Bench found that the suit was virtually for the cancellation of the sale-deeds and the plaintiff cannot obtain possession unless such decree is cancelled by a decree of the Court. Thus, it was a suit for declaration for cancellation of the sale-deed and possession as a consequential relief thereof. Thus, where consequential relief of possession cannot be granted without cancellation of the document, those cases alone will attract ad valorem court-fees. Still further, the said principle would not be applicable in respect of the suit for declaration by a son or a member of the coparcenary under Hindu Law. The Full Bench itself found that such suits would CR No. 4974 of 2006 -6- be on a different footing. In such suits, the main relief would be that of declaration and consequential relief of injunction restraining the decree-holder from executing the decree against the son will be just ancillary. The following observations would be relevant to appreciate the controversy raised herein :- “8. It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of the sale-deed, then the case is not covered by Section 7 (iv) (c) and the only provision applicable is Article 1, Schedule I of the Act. In order to bring the case under Section 7 (iv) (c) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7 (iv) (c) will not be attracted. Section 7 (iv) (c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No. 31 of 1953, which reads as follows :- “Provided further that in suits coming under sub-clause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section”. 9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act will be applicable, but the CR No. 4974 of 2006 -7- suit filed by the plaintiff-petitioner was virtually, to all intends and purposes, for the cancellation of the sale- deed, executed by her, in favour of the defendant- respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court....” “6 .... A suit for declaration by a son or a member of a coparcenary under the Hindu Law will thus be on a different footing. In such a suit, the main relief will be that of a declaration and the consequential relief of injunction restraining the decree-holder from executing the decree against the sons etc. will be just ancillary....” 6. In the light of aforesaid judgment, it may be noticed that Bagrawat's case (supra) and Jagdish's case (supra) were the cases where the suit was for a declaration challenging the legality of the sale-deed executed in respect of a joint Hindu family property. The said judgments run counter to the principles laid down by the Full Bench of this Court and, therefore, reliance on the said judgments is not tenable. In M/s Iron Master (India) Limited's case (supra), the bank had filed a suit for recovery. The said decree was sought to be challenged by the plaintiffs on the ground of fraud and misrepresentation. It was rightly held therein that ad valorem court-fees is required to be affixed as the plaintiffs are party to the said suit. In Ranjit Singh's case (supra) and Om Parkash's case (supra), it cannot be found out that any consequential relief was claimed and, therefore, the said judgments would again does not provide any assistance to the petitioners.” In view of the aforesaid legal position, both these revision petitions are partly allowed to the extent that the plaintiff-petitioner is required to pay the CR No. 4974 of 2006 -8- ad valorem court fee in terms of Section 7 (iv) (c) of the Act as quantified under Section (v) of the Act, as far as the agricultural land is concerned, whereas with regard to the house in question, the plaintiff-petitoner will pay the ad valorem court fee on the value of the house, as mentioned in the gift deed. November 11, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE