Civil Revision No.7949 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7949 of 2010 (O&M) Date of Decision: April 8, 2011 Kulwant Kaur and others .....Petitioners v. Joginder Kaur and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.A.S.Gill, Advocate for the petitioners. ..... RAM CHAND GUPTA, J. 1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside/quashing of order dated 13.10.2010 passed by learned Civil Judge, Junior Division, Jalandhar, Annexure P5, vide which petitioners have been directed to affix the ad valorem Court fee. 2. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Facts relevant for the decision of present revision petition are that a suit for declaration to the effect that plaintiffs, defendant no.1 Joginder Kaur, defendant no.2 Sarabjit Singh and defendant no.3 Kulbir Singh are joint owners of the land in dispute, fully described in the heading of the plaint, on the basis of a registered Will dated 26.3.1992 executed by Hazara Singh s/o Ishar Singh in favour of his daughter-in-law Joginder Kaur-defendant no.1 and grand sons, Pargat Singh, Sarabjit Singh- defendant no.2 and Kulbir Singh- defendant no.3 and for declaration to the effect that inheritance of the land on the basis of natural succession by the defendants and Pargat Singh (deceased), represented by his wife and children, i.e., plaintiffs, and the mutation bearing nos.2031, 2032, 2033 and 2034 sanctioned in their favour on the basis of said inheritance, are null and Civil Revision No.7949 of 2010 (O&M) -2- void and illegal and further relief sought is for cancellation of the said natural succession and the mutation and further declaration to the effect that the sale deed executed and registered on 4.1.2008 by defendant no.6- Mohinder Kaur through her attorney defendant no.1-Joginder Kaur in favour of defendant no.2 Sarabjit Singh and defendant no.3 Kulbir Singh for the land measuring 31K-7M and sale deed executed and registered on 7.1.2008 vide document no.9605/1 executed by defendant no.6-Mohinder Kaur through her attorney defendant no.1 Joginder Kaur through her attorney defendant no.8 Kulwaran Singh in favour of defendant no.7 Satnam Kaur for the land measuring 4k-3M, the land mentioned in both these sale deeds, comprised in Khasra nos.14//3, 4, 5/1, 5/3, 15//1, 108, 2//19, 23/1, 22/4, 7//23/2, 24, 25/1, 25/2, 14//15/2, 15/1, 15//11/1, 6//17/1, 2//25, 5//1/2, 2/2, 9/3, 10, 12/1, 6//6, 7/1, 15/16//15/2, 6//4, 5, 14//6, 7, 18//10, 5//11/1, 14//26, 14//27, 7//25/3, situated in village Nangal Fateh Khan, Tehsil and District Jalandhar, are null and void, and for cancellation of the said two sale-deeds and for permanent injunction restraining defendants no.2, 3, 6 and 7 from getting the mutation sanctioned on the basis of said sale deeds or for cancellation of the mutation and for joint possession of the land that came to the plaintiff and others on the basis of aforesaid Will dated 26.3.1992, was filed by present petitioners-plaintiffs. 4. Respondents-defendants filed an application for dismissal of suit on the plea that proper court fee has not been affixed on the plaint by taking the plea that ad valorem curt fee, as per consideration mentioned in the impugned sale deeds, is required to be affixed. Application was contested by petitioners-plaintiffs, however, the same was allowed and petitioners-plaintiffs were directed to affix ad valorem court fee by learned trial Court vide impugned order by observing as under:- “In view of the aforesaid discussion I am of the considered view that in the present case also plaintiff is seeking the consequential relief of joint possession after getting the sale deeds declared null and void. I am of the considered view that the plaintiff is required to affix ad valorem court fee. Therefore, the present application is allowed. However, in the interest of justice one opportunity is granted to the plaintiff to make good the deficiency in court Civil Revision No.7949 of 2010 (O&M) -3- fee.” 5. It has been contended by learned counsel for the petitioners- plaintiffs that law on the point has been settled by Hon'ble Apex Court in a recent judgment rendered in Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010(2) RCR (Civil) 564, 2010(2) RAJ 436 that as they are not parties to the sale-deeds sought to be cancelled, they are required to affix the court fee as per Section 7(iv)(c) of the Court Fee Act, 1870, (hereinafter to be referred as `the Act') and not ad valorem Court fee, as per consideration of the impugned sale deeds. It is also contended that moreover petitioners-plaintiffs are claiming main relief of declaration and that relief for cancellation of sale deeds is only ancillary in nature. It is argued that they are claiming only joint possession and that two of the vendees are co-owners with petitioners-plaintiffs. 6. There is force in the argument of learned counsel for the petitioners-plaintiffs, as law has been laid down by Hon'ble Apex Court in a recent judgment in case of Suhrid Singh @ Sardool Singh's case (supra), wherein it has been held that if plaintiff is non-executant and is not in possession and sues for a declaration that the deed is null and void and does not bind him or his share, and also for consequential relief of possession, he has to pay ad valorem court fee as provided under Section 7(iv)(c) of the Act, to be calculated in the manner provided for by Clause (v) of Section 7. The relevant paragraph of the judgment reads as under:- 6. Where the executant of a deed wants it 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 non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ - two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/ Civil Revision No.7949 of 2010 (O&M) -4- illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If ‘B’, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’, a nonexecutant, 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 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 the present case, petitioners-plaintiffs alongwith other co- sharers are claiming relief of declaration of joint ownership on the basis of a Will allegedly executed by deceased Hazara Singh, whose inheritance is in dispute. They have also challenged subsequent mutations sanctioned on the basis of inheritance ignoring the Will and subsequent two sale deeds executed by defendant no.6 and have claimed relief only for joint possession. They are not the parties to the sale deeds, which are sought to be cancelled. Hence, even if it is taken that they are seeking relief of possession and, however, as they are non-executant of the impugned sale deeds, their case would be covered under Section 7(iv)(c) of the Act and the Court fee would be computed according to the amount by which the relief sought is valued in the plaint and such valuation shall not be less than the value of the property calculated in the manner provided by Clause (v) of Civil Revision No.7949 of 2010 (O&M) -5- Section 7. 8. In view of these facts, the present petitioners-plaintiffs are not to affix the ad valorem court fee, as per consideration of the impugned sale deeds. 9. Hence, the revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to allow the petitioners-plaintiffs to affix ad valorem court fee as provided in Section 7(iv)(c) of the Act to be calculated in the manner provided by clause (v) of the said Section. 8.4.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.