IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 27.07.2010 C.R.No.2198 of 2010 Darshan Singh and others ...Petitioners Versus Narinder Kaur and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Bhavyadeep Walia, Advocate, for the petitioners. Mr. Munish Gupta, Advocate, for respondent Nos.1 to 4. Mr. A.B.S.Sidhu, Advocate, for respondent Nos.5 to 9. Mr. O.P.Goyal, Sr. Advocate, with Ms. Kanwal Jeet Kaur, Advocate, for respondent Nos.10 & 11. HEMANT GUPTA, J. Plaintiffs are in revision aggrieved against the order passed by the learned trial Court allowing an application filed by the defendants under Order 7 Rule 11 CPC and directing the plaintiff-petitioners to affix ad valorem Court fee on the sale consideration of the sale deed. The plaintiffs have filed a suit for joint possession claiming that plaintiff No.5 is owner in joint possession over the suit property to the extent of 1/4th share each, whereas plaintiff Nos.1 to 4 are also owner in joint possession to the extent of 1/16th share, alleging the suit property as Joint Hindu Family and co-parcenary property. The plaintiffs have also claimed declaration that alienation made vide sale deed dated 28.3.2008 is C.R.No.2198 of 2010 illegal, null & void, in operative and is not binding upon the rights of the plaintiffs. Such claim of the plaintiffs is based upon the fact that one Kalha Singh inherited the property from his forefathers. After his death, the property was inherited by Pohlo Singh and thereafter came to the share of Hoshiar Singh, Mohinder Singh (deceased), Raghbir Singh (deceased), Avtar Singh and Kashmir Singh. The plaintiffs are sons of Mohinder Singh and Hoshiar Singh. Raghbir Singh was said to be unmarried and issueless. Therefore, the property of Raghbir Singh after his death was said to revert back to other co-parceners, but defendant No.1-Narinder Kaur got sanctioned the mutation of the estate of Raghbir singh in her favour on the basis of Will dated 22.7.1998. The Will was said to be forged and fabricated document. Consequently, the plaintiffs claimed that the mutation sanctioned on the basis of the said Will is also illegal and null & void. A civil suit challenging the mutation has been filed, which is pending. It is alleged that with a view to avoid the decree that may be passed in the aforesaid suit, defendant Nos.1 to 4 executed sale deed on 10.7.2007 in favour of defendant Nos.5 to 9. Subsequently, defendant Nos.5 to 9 executed another sale deed in favour of defendant Nos.10 and 11 on 28.3.2008. The plaintiffs have sought to avoid the sale deeds, inter alia, on the ground that the sale deed dated 10.7.2007 has been executed during the pendency of the civil suit and that such sale is without any title and in effective qua the rights of the plaintiffs. Learned trial Court relied upon a judgment of this Court reported as Bagrawat Vs. Mehar Chand 2002(1) CCC 12 , to hold that ad valorem Court fee is payable on the sale consideration amount of sale deed irrespective of the fact that property in dispute is ancestral and coparcenary. 2 C.R.No.2198 of 2010 The said order passed by the learned trial Court is liable to be set aside in view of the recent Division Bench judgment of this Court in case of Dara Singh Vs. Gurbachan Singh and others (C.R.No.22 of 2009). In the aforesaid case, the Court relied upon the judgment of Hon’ble Supreme Court reported as Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others 2010 (2) RCR (Civil) 564 (C.A.NO. 2811-13 of 2010 decided on 29.3.2010), wherein distinction has been drawn in respect of cancellation of a deed by its executant and annulment of a deed by a non- executant. It was held that when executant of a deed wants a document to be annulled, 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 nonest or illegal or that it is not binding on him. It has been held that if non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay ad valorem court fee. It was held to the following effect : “7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “co-parcenery” 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 court fee had to be paid on the sale consideration mentioned in the sale deeds.” In view of the judgments of Hon’ble Supreme Court and of the Division Bench, the previous judgments of Single Bench on the issue of payment of court fee stand impliedly overruled. As a consequence of the aforesaid decisions, the following principles can be delineated : 3 C.R.No.2198 of 2010 (i) If an executant of a document seeks cancellation of the deed, then he has to pay ad valorem Court fee on the consideration stated in the sale deed. (ii) If a non-executant seeks a declaration that the deed is null & void, or nonest, or illegal or that it is not binding on him, then he has to pay fixed Court fee under Article 17 (iii) of Second Schedule of the Act. (iii) But if a non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also consequential relief of possession, he has to pay an ad valorem Court fee as provided under Section 7 (iv)(c) read with Section 7(v) of the Act. The plaintiffs have claimed declaration that sale deeds are not binding on them and have also claimed joint possession. Plaintiffs are not the executants of the sale deeds. The issue raised before the Hon’ble Supreme Court was identical, as is involved in the present case. That was also a case, where a non-executant has sought the avoidness of a sale deed on the ground that such sale deed shall not affect the rights of co-parcener. Therefore, fixed Court fee is payable and not the Court fee on the sale consideration mentioned in the sale deed. In view of the judgments referred above, the order passed by the learned trial Court cannot be sustained in law. The same is, therefore, set aside. Revision petition is allowed. 27.07.2010 (HEMANT GUPTA) Vimal JUDGE 4