IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4053 of 2011 Date of Decision:7.7.2011 Smt. Rajkali .... Petitioner Versus Jasrath and others .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. V.D. Sharma, Advocate for the petitioner. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J. This is revision against the order dated 6.6.2011 passed by the Civil Judge, (Sr. Divn.) Faridabad, vide which the petitioner has been directed to pay advalorem court fee. The facts in short are that the petitioner filed a civil suit for challenging the gift deed dated 28.3.1996 vide which the ancestral land of the petitioner has been transferred in the name of respondent No.1 and subsequently sale deed was executed by respondent No.1 in favour of respondents No.2 to 5. However, respondents moved an application under Order 7 Rule 11 CPC for rejection of the plaint. The said application was allowed vide order dated 6.6.2011 and the petitioner was directed to pay advalorem court fee. While challenging the impugned order, learned counsel for the petitioner submitted that the petitioner was not a party to the sale deed executed by respondent No.1 in favour of respondents No.2 to 5. Further, the petitioner became owner in possession of land by way of inheritance of the ancestral property and the petitioner was minor at the time of execution of the gift deed. As such, no advalorem court fee is required to be affixed if the property is ancestral. Heard. The petitioner has himself in para 3 of the revision petition C.R. No.4053 of 2011 -2- stated as under: “That thereafter Siri Chand had expired on 21.11.1955, leaving behind his widow Smt. Gunwati and two minor daughters, i.e. petitioner Smt. Raj Kali and proforma- respondent No.6 i.e. Smt. Shanti as the only legal heirs, successors-in-interest, legal representatives and legal heirs to succeed to his right, estate and interest in the suit land mentioned in para no.1 of plaint in equal share as he had no male heir/leanel discendent and till that time the Hindu Succession Act has not come in force so the suit land of Siri Chand has been mutated vide Mutation of inheritance no.1892 dated 26.2.2956 duly sanctioned and entered by AC Iind Grade Ballabgarh, and by virtue of this mutation of inheritance Smt. Gun Wati, Wd/o Siri Chand has become life time owner in possession of the suit land with all rights, title and interest appurtenant thereto and her name also appeared in the copies of jamabandi for the year 1954-55 & 1960-61. The true copy of the suit dated 6.6.2006 filed by the petitioner is attached herewith as Annexure P-1.” It is apparent from the above that the petitioner himself admits that Smt. Gun Wati daughter of Siri Chand i.e. the mother of the petitioner had inherited the suit land from the father which she gifted away to defendant No.1. Therefore, Smt. Gun Wati, the daughter, acquired the absolute ownership right after coming into existence of the Hindu Succession Act. As such, the petitioner herein is challenging the gift deed of the property of which her mother Smt. Gun Wati had become absolute owner after coming into force of the Hindu Succession Act. Further the petitioner herein is seeking not only a declaration that sale deed is invalid but also the possession of the property in dispute. However, Hon'ble the Supreme Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others 2010 (2) Civil Court Cases 510 (S.C.) was pleased to hold as under: “6. But if 'B', a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is C.R. No.4053 of 2011 -3- invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief 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 Section 7. 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.” As stated above, the petitioner herein is also seeking both the setting aside of the sale deed as well as possession of the property. Therefore, there is no reason to waive of the advalorem court fee as per the well settled proposition of law laid down by the Apex Court in the case of Suhrid Singh @ Sardool Singh (Supra). Accordingly, the present petition is dismissed. However, nothing herein shall have any bearing on the merits of the case. 7.7.2011 ( NIRMALJIT KAUR ) rajeev JUDGE