IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4281 of 2010(O&M) Date of Decision: April 29, 2011. Karam Singh. ...... PETITIONER(s) Versus Smt. Maina Devi and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. S.S.Godara, Advocate for the petitioner. Mr. Arun Beniwal, Advocate for respondent No.1. ***** RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 25.05.2010 passed by learned Additional Civil Judge(Senior Division), Fatehabad vide which application filed by respondent No.1-contesting defendant was accepted and petitioner and respondent No.3 -plaintiffs were directed to pay ad valorem court fee on the consideration of gift deed challenged in the suit. CR No.4281 of 2010 I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Facts relevant for the decision of the present revision petition are that, a suit for declaration to the effect that a registered gift deed dated 10.10.2006 regarding the land in dispute was executed by father of plaintiffs, namely, Chunni Lal i.e. respondent-defendant No.2 in favour of his sister i.e. respondent No.1-defendant No.1 and that the same is illegal and void as the property in dispute is ancestral one in the hands of defendant No.2 qua plaintiffs and he is having no right to transfer the same in favour of respondent No.1-defendant No.1. Law on the point has been settled by Hon’ble Apex Court in Suhrid Singh @Sardool Singh v. Randhir Singh and others, 2010(2) Civil Court Cases 0510 the relevant paragraph of which 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 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 different. If ‘A’, the executant of the deed, 2 CR No.4281 of 2010 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.” In the present case, petitioner and respondent No.3-plaintiffs are not parties to the gift deed executed by respondent-defendant No.2 in favour of respondent No.1-defendant No.1, which has been challenged in the suit and however, they are seeking relief of possession and hence, in view of legal proposition as held by Hon’ble Apex Court in the aforementioned judgment, the present case would be covered in the category of non-executant being not in possession seeking not only declaration that the gift is invalid but also consequential relief of possession. Hence, plaintiffs in this case have to pay ad valorem court fee as provided under Section 7(iv)(c) of the Court Fees Act, 1870 (hereinafter to be referred to as the ‘Act’) to be calculated in the manner provided for by clause (v) of Section 7 of the Act. 3 CR No.4281 of 2010 It has also been contended by learned counsel for the petitioner that there is also an amendment by Government of Haryana in the Act i.e. The Court Fees (Haryana Second Amendment) Act, 1974, which came into force w.e.f. 31.01.1974 and that court fee is to be calculated as per Section 7 (v) of the act as per the said amended provision. Hence, learned trial Court has committed illegality in passing the impugned order directing plaintiffs to affix ad valorem court fee as per the consideration of gift deed in dispute. Hence, in view of aforementioned facts, the present revision petition is accepted. Impugned order passed by learned trial Court is set aside. Learned trial Court is directed to give an opportunity to petitioner and respondent No.3 –Plaintiffs to affix ad valorem court fee as per Section 7(iv)(c) of the Act to be calculated in the manner as provided for by Section 7(v) and as per The Court Fees (Haryana Second Amendment) Act, 1974. Disposed of accordingly. ( RAM CHAND GUPTA ) April 29, 2011. JUDGE 'om' 4