C.R.No.2647 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.2647 of 2009 Date of Decision : 22.10.2009 Pushpa ...Petitioner Versus Ramesh Kumar Chaudhary and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Rahul Sharma, Advocate, for the petitioner. Mr. Arvind Singh, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) Challenge in the present revision petition is to the order dated 21.4.2009, whereby the plaintiff was directed to affix ad valorem Court fee on the value of suit property. The plaintiff claiming herself to be the daughter of Bhagwan Dass and Smt. Sita Devi has sought separate possession of the joint property so inherited by the parties by way of partition by metes and bounds. Defendant Nos.1 and 2 are the other legal heirs of the aforesaid deceased Bhagwan Dass and Smt. Sita Devi, whereas defendant No.3 is the purchaser from defendant Nos.1 and 2 vide a registered sale deed dated 2.4.2004. Defendant No.3 moved an application before the learned trial Court for rejection of the plaint for the reason that the plaintiff has not affixed ad valorem Court fee, wherein challenge was made to the sale deed dated 2.4.2004, whereby defendant No.3 has purchased the property C.R.No.2647 of 2009 2 on a sale consideration of Rs.6 lac. It is the said application, which has been allowed by the learned trial Court vide the order impugned in the present revision petition. The reasoning given by the learned trial Court is that the defendant has asserted devolution of the property on defendant Nos.1and 2 on the basis of Will. Since, such fact has not been rebutted, therefore, the plaintiff is bound to affix the ad valorem Court fee on the value of the suit property. Learned counsel for the petitioner has argued that for the purposes of Court fee, the averments in the plaint as a whole has to be examined. The stand of the defendants in the written statement is not required to be taken into consideration for determining, whether the proper Court fee has been affixed on the substantive relief claimed. The said argument raised by the learned counsel for the petitioner is unexceptional. To determine, whether the proper Court fee has been affixed or not, the entire plaint has to be read to find out the substantive relief claimed by the plaintiff. At the stage of determination of question of affixation of proper Court fee, the defence of the defendants is not to be taken into consideration. Consequently, the said reasoning given by the learned trial Court cannot be sustained in law. However, the main issue is, whether in a suit for partition, the plaintiff is liable to pay ad valorem Court fee in respect of a sale deed executed by a co-sharer in excess of his share. If the claim of the plaintiff is to be accepted as per the averments made in the plaint, the plaintiff would have 1/3rd share in the property. Therefore, the sale deed executed by defendant Nos.1 and 2 in C.R.No.2647 of 2009 3 favour of defendant No.3 of the entire estate would be ineffective qua the rights of the plaintiff. The plaintiff is claiming partition of the joint property on the basis of inheritance. The challenge to the sale deed is only to the extent of it being ineffective qua the rights of the plaintiff. The sale deed will continue to be valid against defendant Nos.1 and 2. But if it is found that defendant Nos.1 and 2 have sold share of the plaintiff, then such sale will be ineffective qua the rights of the plaintiff. The sale deed is not executed for or on behalf of the plaintiff. The challenge to the sale deed is only ancillary and limited to the extent that it will not effect the rights of the plaintiff. In a case reported as Ram Singh and others Vs. Labh Singh and others AIR 2006 Punjab 129, one Swaran Singh has executed sale deed in favour of the plaintiffs and also in favour of the defendants taking advantage of the fact that the mutation of the sale deeds in favour of the plaintiff-petitioner was not entered in the revenue record. This Court found that such a suit does not require affixation of ad valorem Court fee, as the plaintiffs were not required to challenge the sale deed executed by Swaran Singh. Similarly, in Ravinder Kumar Vs. Narinder Kumar and others 2007(2) P.L.R. 577, it was held that the plaintiff was claiming ownership and was not a party to the sale deed, therefore, ad valorem Court fee was not payable. Thus, it is apparent that the challenge to the sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3 is limited to the extent that such sale deed will not effect the rights of the plaintiff. The said sale deed is valid against defendant Nos.1 and 2. If the plaintiff is C.R.No.2647 of 2009 4 found to be entitled to the share of deceased Bhagwan Dass and Smt. Sita Devi, then the sale in favour of defendant No.3 cannot be said to be binding on the plaintiff. Therefore, in such suit for partition, by metes and bounds, the plaintiff shall not be required to affix ad valorem Court fee on the sale deed executed by other co-sharers in respect of his share. Thus, I find that the order passed by the learned trial Court suffers from patent illegality and irregularity causing manifest injustice to the petitioner. Consequently, the present revision petition is allowed and the order passed by the learned trial Court is set aside. 22.10.2009 (HEMANT GUPTA) Vimal JUDGE