C.R.No.12 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.12 of 2011 Date of decision: 6.1.2011 Harnam Singh Gill ….Petitioner Vs. Narinder Singh Gill and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. H.S. Bhullar, Advocate for the petitionoer. Jaswant Singh, J Instant petition under Article 227 of the Constitution of India is directed against order dated 7.12.2010 (P.1) passed by the learned Additional Civil Judge (Sr. Division), Chandigarh whereby on the application under Order 7 Rule 11 of the Code of Civil Procedure filed by defendants/respondent Nos.1 & 2, plaintiff-petitioner (grand-son of defendants-respondent Nos.1 & 2) has been required to affix the advalorem court fee on the value of the gift deed i.e Rs.1,26,00,000/- within one month from the date of passing of the order failing which the plaint shall be rejected. It is alleged that initially the house in dispute was purchased by Jahangir Singh Gill-father of respondent No.1-Narinder Singh Gill being the karta of the family. Defendant-respondent No.3 is the daughter of defendant-respondent No.1-Narinder Singh Gill. It is necessary to mention here that Amarbir Singh Gill-father of the plaintiff/petitioner and son of respondent No.1-Narinder Singh Gill and brother of defendant-respondent C.R.No.12 of 2011 #2# No.3-Simarbir Kaur Gill had expired on 20.9.2003. In this way, defendant- respondent No.3 is the bhua (father's sister) of the plaintiff-petitioner. It is further alleged that the plaintiff-petitioner filed a suit for declaration to the effect that gift deed executed by defendant/respondent No.1 Narinder Singh Gill (grand-father of the plaintiff-petitioner) in favour of respondent No.3- Simarbir Gill (bhua of the plaintiff-petitioner) as detailed in the head note of the plaint dated 19.5.2009 (P.2) registered in the office of Sub Registrar, UT, Chandigarh relating to H.No.512 Sector 8-B, Chandigarh is result of fraud and the same is illegal, null and void with a further prayer of consequential relief that the house in question is a property of joint hindu family and the plaintiff-petitioner being co-parcener is entitled to occupy and use the same and that a recovery of Rs.18,00,000/- (75,000/- per month from 1.6.2009 till handing over the possession) was also prayed to be effected from the defendant-respondent Nos.1 & 3. Written statement dated 22.10.2009 (p.3) was filed on behalf of defendant-respondent Nos.1 & 2. During the pendency of the civil suit, an application dated 22.10.2009 (P.4) under Order 7 Rule 11 CPC was filed by defendant-respondent Nos.1 & 2. Plaintiff-petitioner filed his reply dated 16.2.2010 (P.5) to the application (P.4) and after hearing both the sides, the same has been disposed of vide the impugned order dated 7.12.2010 passed by learned ACJ (SD), Chandigarh while observing as under: “In view of the above discussion, it is held that suit for relief of declaration has not been properly valued by the plaintiff and he has not affixed the requisite court fee. He is required to affix the advalorem court fee on the value of the gift deed i.e Rs.1,26,00,000/- within one month from the date of this order, otherwise the plaint will be rejected. The application stands disposed of accordingly.” C.R.No.12 of 2011 #3# Learned counsel argues that in view of the provisions of Court fee Act, the impugned order passed by the learned trial Court is not legally sustainable and the same is liable to be set aside as the property in dispute is ancestral and the petitioner is claiming his right,title and interest as a co- parcener being member of joint hindu family. He further argues that the suit of the plaintiff-petitioner is for declaration with consequential relief as the alleged gift deed has infringed the legal right of the petitioner to inherit and enjoy the ancestral property and the alleged gift deed is the result of fraud played by the respondents No.1 & 3. Heard learned counsel for the petitioner and perused the record. To adjudicate the matter in controversy and to ascertain as to what is the nature of relief claimed by the plaintiff-petitioner in his suit for the purpose of affixation of court fee, the prayer clause of the plaint dated 19.5.2009 (P.2) filed by the plaintiff-petitioner is reproduced hereunder for ready reference : “a) pass a decree of declaration that the Gift Deed fully detailed in the heading of the plaint is illegal, null and void with consequential relief that the house in question is still property of the Hindu Joint Family and the plaintiff being coparcener therein is entitled to use and occupy the same and defendant No.1 has forfeited his right to act as a Karta of the family having committed fraud with other coparceners and family members and is responsible for wasting Joint Hindu Family Property and is liable to be removed as Karta and coparceners and other members of the Hindu Joint Family are entitled to distribute it amongst themselves so as to own, possess and use the same as per law. b) Pass a decree for recovery of Rs.18,00,000/- for using and occupying House No.512, Sector 8-B, Chandigarh against defendants No.1 and 3; c) Also pass a decree for the recovery of Rs.75,000/- per month from 1.6.2009 till the vacation or handing over the C.R.No.12 of 2011 #4# possession of House No.512, Sector 8-B, Chandigarh to the rightful persons; d) Grant any other relief to which the plaintiff may be found to be entitled under the facts and circumstances of the case, besides the costs.” A bare perusal of prayer clause reproduced hereinabove reveals that the plaintiff-petitioner has filed a suit for declaration with possession as well; relating to an immovable property although alleged to be ancestral,which is yet to be decided. It is not in dispute rather admitted in para 6 of the plaint that the plaintiff-petitioner is not in possession of the property in dispute rather it is the defendant-respondent No.3, who is in possession of the same. It is also revealed that the plaintiff-petitioner is claiming the relief of possession also. A somewhat similar controversy came for adjudication before Hon'ble the Supreme Court in a case reported as Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors 2010(2) RCR (Civil) 564 wherein it was observed as under: “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 non-est/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 C.R.No.12 of 2011 #5# 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 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 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.” Keeping in view the law laid down by Hon'ble the Supreme Court in case of Suhrid Singh @ Sardool Singh Singh's case (supra) and taking into account the provisions of the Court fee Act, the plaintiff- petitioner, who is claiming the relief of declaration along with consequential relief of possession, in my considered opinion, is liable to pay ad valorem fee as directed while passing the impugned order dated 7.12.2010 by the learned trial Court. Consequently, this court does not find any illegality or perversity in the impugned order, hence the present petition under Article 227 of the Constitution is dismissed. January 06, 2011 ( JASWANT SINGH ) manoj JUDGE C.R.No.12 of 2011 #6#