C.R.No.3761 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3761 of 2008 Date of decision: 15.11.2011 Prince ...Petitioner Versus Santokh Singh and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. O.P.Sharma, Advocate for the petitioner. None for the respondents. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner having been directed to affix ad- valorem court fee by the trial court on an application filed by the defendant- respondents under Order 7 Rule 11 of the Code of Civil Procedure (in short, “the Code”), vide order dated 20.2.2008, has approached this Court through the instant revision petition. 2. Brief facts as narrated in the petition may be noticed. The petitioner is a minor son of respondent No.3 who is having strained relations with his wife and both are residing separately. Since the minor son is living with his mother, the suit was filed through his mother Krishna Dulari. Respondent No.1 is grandfather of the petitioner and the property in question is ancestral coparcenary property of Hindu undivided family. Respondent No.1 is karta of the family. Respondent No.1 in connivance with his sons including the father of the petitioner sold his ancestral property vide sale deeds dated 23.6.2005 and 27.6.2005 to deprive the 1 C.R.No.3761 of 2008 petitioner of his legal right. Since the petitioner is the coparcener, he having a right in the property filed a suit for declaration to the effect that he is owner to the extent of 1/3rd share and sale deed in question be declared illegal and void. In the said suit, the respondents moved an application under Order 7 Rule 11 of the Code directing the petitioner to affix ad valorem court fee. The trial court vide impugned order dated 20.2.2008 allowed the said application directing the petitioner to pay ad valorem court fee.Hence this revision petition. 3. I have heard learned counsel for the petitioner and perused the record. 4. Learned counsel for the plaintiff-petitioner submitted that plaintiff-petitioner had challenged sale deeds dated 23.6.2005 and 27.6.2005 affecting his legal right being coparcener in the joint Hindu Family property and could not seek possession during the life time of his father. The claim of joint possession in such circumstances is only symbolic possession and no ad-valorem court fee was payable. He placed reliance upon the following principles relating to payment of court fee as laid down by the Apex Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, AIR 2010 SC 2807:- i) Where the executant of the deed seeks cancellation of the deed, he has to pay ad-valorem Court fee on the consideration stated in the deed; ii) Where the non-executant, who is in possession and sues for a declaration that the deed is null or void and does not bind him or his share shall be required to affix fixed court fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act; iii) Where the non-executant who is not in possession seeks declaration that the deed is invalid and also claim relief of 2 C.R.No.3761 of 2008 possession, is required to affix ad-valorem Court fee as provided under Section 7(iv) ( c) of the Act. Under the Proviso attached thereto, such valuation in case of property shall not be less than the value of the property calculated in the manner provided for by Clause (v) of Section 7 of the Act. 5. I find considerable force in the submissions made by learned counsel for the petitioner. Adverting to the facts of the present case, the plaintiff-petitioner, minor son of respondent No.3 has laid a challenge to sale deeds dated 23.6.2005 and 27.6.2005 executed by his father in respect of ancestral property in which he had a right by birth as the same were claimed to be fictitious and sham transaction. The plaintiff-petitioner is simpliciter seeking declaration for setting aside of sale deeds dated 23.6.2005 and 27.6.2005 not to affect his right in ancestral property and no relief of actual possession has been claimed. It is mere declaratory suit and under the circumstances as noticed, the plaintiff had rightly affixed fixed court fee and the payment of ad-valorem court fee as directed by the trial court is not justified. Accordingly, the petition is allowed and the order dated 20.2.2008 impugned herein is set aside. November 15, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 3 C.R.No.3761 of 2008 4