Civil Revision No.3622 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3622 of 2010 (O&M) Date of Decision 20.01.2011 Paramjit Kaur @ Pami and another ...... Petitioners VERSUS Mohinder Singh and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Vipin Mahajan, Advocate, for the petitioner. Mr.A.S.Manaise, Advocate, for respondent Nos.1 and 5 to 7. ***** A.N.JINDAL, J: This petition is directed against the order dated 03.04.2010 (Annexure P-4) passed by Addl. Civil Judge (Senior Division), Gurdaspur, allowing the application Under Section 7 Rule 11 CPC, preferred by respondent-defendant Nos.1 and 5 to 7 (herein referred as 'the defendants') and directing the plaintiffs-petitioners (herein referred as 'the plaintiffs') to pay the ad-valorem court fee on the value of the sale deeds, sought to be annulled by them. The petitioners have challenged the sale deeds dated 22.07.2008, 18.07.2008 and 09.12.2002, which are for consideration of Rs.6,00,000/-, Rs.6,41,500/- and Rs.6,00,000/- respectively. The respondents have filed the application under Section 7 Rule 11 CPC for paying the ad-valorem court fee. The said application was accepted and the plaintiffs were directed to pay the requisite court fee on the consideration of the sale deeds. Having heard the rival contentions, it may be observed that the Civil Revision No.3622 of 2010 2 payment of Court fee originates from the pleadings, as set out by the plaintiffs and the relief claimed therein. The plaintiffs have claimed the suit property to be Joint Hindu family coparcenary property and they claimed themselves to be the coparceners and have prayed for passing of the decree for joint possession by way of annulment/ignoring the aforesaid sale deeds. It has also been pleaded that Mohinder Singh-defendant No.1 had sold the joint Hindu family coparcenary property without any legal necessity and benefit of the estate. In this situation, it appears that the trial Court has ordered the payment of ad-valorem court fee without going into the allegations, as set out in the plaint and the actual legal position for the following reasons:- (i)The plaintiffs have claimed declaration as well as joint possession over the suit property and no consequential relief has been claimed. (ii)The plaintiffs are not the executants of the sale deed and they claim that the sale deeds are null and void inoperative and are liable to be ignored. (iii)The plaintiffs have claimed their right on the ground that suit property is joint Hindu Family Co-parcenary property. Section 7(iv)(b) of the Court Fees Act, 1870 (for brevity 'the Act') which relates to the Court fee reads as under:- Section 7 of the Act Computation of fees payable in certain suits - The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- (i)xxx xxxx xxxx (ii)xxx xxxx xxxx (iii)xxx xxxx xxxx (iv) In suits ---- (a) for moveable property of no market-value --for moveable Civil Revision No.3622 of 2010 3 property of no market-value - for moveable property where the subject matter has no market value, as, for instance, in the case of documents relating to title, (b) to enforce a right to share in joint family property - to enforce a the right to share in any property on the ground that it is joint family property, (c) for a declaratory decree and consequential relief - to obtain a declaratory decree or order, where consequential relief is prayed, (d) & (e) xxxx xxx xxx (f) for Accounts -- According to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought. In any case, as per provisions of Section 7(iv)(c) of the Act, the ad-valorem Court fee could be claimed in cases where the cancellation of deed is sought as well as consequential relief is claimed but in this case the plaintiffs being not the party to the sale deeds have not sought for cancellation of the sale deeds but have sought for annulment of the same and they have also not sought any consequential relief. Similar observations were made by the Apex Court in case Suhrid Singh @ Sardool Singh versus Randhir Singh and others 2010 (2) Civil Court Cases 510 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'. Civil Revision No.3622 of 2010 4 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, 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 valid 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 instant case also, no prayer for cancellation of sale deed has been made. The plaintiffs have claimed for declaration as well as joint possession over the joint Hindu Family Coparcenary property. The plaintiffs in the suit were not the executants of the sale deeds, therefore, the court fee is not payable under Section 7(iv)(c) of the Act. As such, the petitioners are not liable to pay the ad-valorem court fee. Even Section 7 (iv)(b) of the Act also exempts the payment of ad-valorem court fee where a Civil Revision No.3622 of 2010 5 share in the joint Hindu family coparcenary property is claimed. The plaintiffs in this case have also pleaded that the suit property is joint Hindu Family Coparcenary property as such while taking the case from any angle, it lies in favour of the plaintiffs. For the foregoing reasons, the present petition is accepted, impugned order dated 03.04.2010 is set aside and the trial Court is directed to assess the Court fee as per provisions of Section 7(iv)(b) & (c) of the Act. (A.N.Jindal) Judge 20.01.2011 mamta-II