Civil Revision No. 4706 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4706 of 2011 Date of decision:- 14.10.2011 Manjula Khanna ...Petitioner Versus Mrs. Meenakshi Vohra and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Robin Dutt, Advocate for the petitioner. Ms. Jaishree Thakur, Advocate for respondent No. 1 Mr. Munish Behl, Advocate for respondent No. 2 RITU BAHRI J. This civil revision is for setting aside order dated 26.07.2011 passed by Civil Judge, Junior Division, Chandigarh whereby an application under order 7 Rule 11 of the Code of Civil Procedure (for short 'the Code') seeking rejection of the plaint was allowed and Manjula Khanna (plaintiff- petitioner) was held liable to pay the Court fees on the value of the property which she herself has valued at ` 12 crore. She was directed to make good the deficiency of Court fee. Learned counsel for the petitioner has submitted that petitioner and defendant No. 1 both are real sisters and after the death of their Civil Revision No. 4706 of 2011 -2- mother Dr. Sushila Puri on 27.09.2010, they became the co-owners of the property in dispute. The plaintiffs filed the suit for partition of ½ portion by metes and bounds of House No. 87 (Old plot No. 125), Sector 18-A, Chandigarh, measuring 2 Kanals, consisting of ground floor, Ist Floor, Out- house and Garage & other moveable property left by her mother (P-1). However, when notice was issued to the respondents they moved an application under order 7 Rule 11 of the Code for rejecting the plaint on the ground that the petitioner did not affix the ad-valorem Court Fee (P-2). The petitioners filed reply to the application and submitted that it is a simple suit for declaration and partition of the property, hence, no ad valorem Court fee is required to be paid. Mr. Robin Dutt, learned counsel for the petitioners has relied upon the judgment of this Court rendered in the case of M/s Delhi-Assam Roadways Corpn.Ltd vs. Sita Ram Aggarwal and others, 2008(2) RCR (Civil) 458. He has further relied upon judgment of Hon'ble the Supreme Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, AIR 2010 SC 2807 to contend that in a suit for declaration which does not seek cancellation of sale deed but claim his possession on the basis of a will which creates a right by a co sharer he is not to pay the Court fee on the value of the property in dispute. The petitioner is seeking partition of the suit property being co-sharer. On the other hand, Ms. Jaishree Thakur, Advocate, learned counsel for respondent No. 1 has averred that defendant No. 1 (respondent Civil Revision No. 4706 of 2011 -3- No. 1 herein) is in the possession of property by virtue of registered will dated 03.07.2002 left by her mother. It has further been submitted that petitioner was neither a co-sharer of the property nor in the joint possession. As per the will dated 03.07.2002, Dr. Sushila Puri gave 40%of the value of the house or Rs.40 lacs, whichever was less to the plaintiff. Learned counsel for respondent No. 1 has submitted that since the plaintiff is neither a co-sharer nor in joint possession, she is required to pay the Court fee on the market value of the house, which she admits at present is ` 12 crore. So the petitioner is required to affix a Court fee of ` 5,75,000/- Heard learned counsel for the parties. In the facts of the present case, the plaintiff is seeking relief of declaration as well as filing of suit by way of partition and declaration that the will dated 03.07.2002 is illegal, null and void. However, as per the judgment cited by the learned counsel for the petitioner will not attract the payment of ad-valorem Court as contemplated under Section 7 (iv) (c). The plaintiff is challenging the aforesaid will and consequential relief of possession. Section 7 of the Act is reads as under:- “7. Computation of fees payable in certain suits:- The amount of fee payable under this act in the suits next hereinafter mentioned shall be computed as follows: (iv) in suits-x x x x (c) for a declaratory decree and consequential relief-To obtain a declaratory decree or order, where consequential relief is prayed, x x x x according to the amount at which the relief Civil Revision No. 4706 of 2011 -4- sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought: Provided that minimum court-fee in each shall be thirteen rupees: Provided that further that in suits coming under sub-clause (c), in cases where the relief sought is with reference to any property such value of the property calculated in the manner provided by clause (v) of this Section.” A plaint reading of this Section makes it clear that in a declaratory suit where a consequential relief is sought in reference to any property then such value of the property has to be calculated in the manner provided under clause 5 of the Section. Clause V provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof. The petitioner cannot claim the benefit from the judgment of M/s Delhi-Assam Roadways Corpn.Ltd (supra) as he is not a co sharer in the suit property. He has been given 45% share on the value of the property or Rs. 40 lacs whichever is less. As per the will dated 03.07.2002, he has not been given right in the property but only 45% share or Rs. 40 lacs. Hence he is not a co sharer. Since he is seeking the cancellation of the will, he cannot claim that he is a co-sharer in the house and he can evade payment to pay ad valorem court fee. The judgment of Hon'ble the Supreme Court in the Civil Revision No. 4706 of 2011 -5- case of Suhrid Singh @ Sardool Singh (supra) does not come to the rescue of the petitioner either. The Supreme Case in para 7 and 8 of the judgment had held as under:- 7. In this case, there is no prayer of cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “coparcenary” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the Court fee was computable under Section 7(iv) (c) of the Act. The trial Court and the High Court were, therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that, therefore, the Court fee had to be paid on the sale consideration mentioned in the sale deeds. 8. We accordingly allow these appeals, set aside the orders of the trial Court and the High Court directing the payment of Court fee on the sale consideration under the sale deeds dated 20.04.2001, 24.04.2001, 06.07.2001 and 27.09.2003 and direct the trial Court in accordance with Section 7 (iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments”. The dispute in the present case was that some sale deeds were executed against the interest of the coparcenary. The civil suit was filed claiming relief of declaration and joint possession and that the sale deeds executed by father of the plaintiff was null and void qua the rights of the Civil Revision No. 4706 of 2011 -6- coparcenary. They were not for legal necessity and for the benefit of the family. There was no prayer made for cancellation of the sale deeds. The plaintiffs had filed a suit for partition and declaration to the effect that the alleged will executed by Dr. Sushila Puri is null and void. However, vide order dated 26.07.2011, the plaintiff was directed to make good the deficiency of Court fee under Section 7 (iv) (v) (c) of the Act. It was further held that plaintiff is liable to pay court fees on the value of the property which she herself valued at Rs. 12 crores. Plaintiff is a non executant of the sale deeds and seeking a declaration that the sale deed is invalid and with a consequential relief of joint possession thereof. Division Bench of this Court in the case of Tarsem Singh and others vs. Vinod Kumar and others, passed in Civil Revision No. 4753 of 2005 on 15.07.2011 while relying on the judgment of Hon'ble the Supreme Court in Suhrid Singh's case (supra) has held as under:- “i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed. ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act. iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Civil Revision No. 4706 of 2011 -7- Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less than the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.” The ratio of Suhrid Singh @ Sardool Singh case (supra) is fully applicable to the facts of the present case. The plaintiff has filed a suit for partition of ½ portion of H. No. 87 (Old plot No. 125), Sector 18-A, Chandigarh and a suit for declaration of the will dated 03.07.2002 executed by Dr. Sushila Puri in favour of defendant No. 1 is null and void and is liable to be set aside. He has further filed a suit restraining the defendant No. 1 to get the said entire house transferred in her name through through defendant No. 2. As per the will, he is entitled to 40% of the value of the house or Rs.40 lacs, whichever was less, So, he was not given ownership rights. By seeking a cancellation of the will, he is claiming ownership to the extent of ½ share of the house. His case falls in category No. 3 made out in Suhrid Singh @ Sardool Singh case (supra). He is a non executant of the will and is not in possession of the house. He is seeking declaration that the will is invalid and also consequential relief of possession. He is liable to pay ad valorem Court fee as provided under Section 7 (iv) (c) read with sub clause (v) of Section 7 of the Act. He is not a co-sharer in the house and the Court fee paid of Rs. 195/- in terms of Schedule II, Article 17(IV), is insufficient Order dated 26.07.2011 passed by Civil Judge, Junior Division, Civil Revision No. 4706 of 2011 -8- Chandigarh directing the plaintiff to pay Court fee on the value of the property which she herself values at Rs. 12 crore calls for no interference by this Court. Accordingly, Civil revision is dismissed. 14.10.2011 ( RITU BAHRI ) G.Arora JUDGE