Punjab-Haryana High Court
Dara Singh vs Gurbachan Singh And Others on 3 May, 2010
Equivalent citations: AIR 2010 (NOC) 959 (P. & H.), 2010 AIHC (NOC) 1055 (P. & H.)
Bench: Adarsh Kumar Goel, Alok Singh
CR No. 22 of 2009 1
In the High Court of Punjab and Haryana, Chandigarh.
CR No. 22 of 2009 (O&M)
Date of Decision: 03.05.2010
Dara Singh
....Petitioner
Versus
Gurbachan Singh and others
....Respondents.
Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel
Hon'ble Mr. Justice Alok Singh
1.Whether reporters of local news papers may be allowed to see
judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ?
Present: Mr. H.S. Dhandi, Advocate
for the petitioner.
Mr. HPS Ghuman, Advocate
for the respondents.
...
Alok Singh, J.
Present revision was filed before learned Single Judge impugning the order dated 2.12.2008 passed by Civil Judge, Jr. Division, Nabha whereby directing the plaintiffs - petitioner herein to pay ad valorem Court fee on the sale consideration shown in the impugned sale deed therein in suit No.233/15.4.2004 seeking a declaration that the sale deed qua the share of the plaintiffs and proforma respondents is void ab initio, non- effective and consequentially relief of injunction was also sought restraining defendants No.1 and 2 from alienating any land out of the aforesaid CR No. 22 of 2009 2 property in any manner.
Learned Single Judge vide order dated 18.12.2009 requested the Hon'ble Chief Justice to refer the matter to the larger Bench in view of the following conflicting judgements: -
"1. Ravinder Kumar Vs. Narinder Kumar and others, Vol.CXLVI-2007-2) The Punjab Law Reporter 577;
2. Prince Minor through his mother and natural guardian Smt. Rekha Vs. Suresh Kumar and others, 2009(1) Civil Court Cases 186;
3. Devasharay Singh Vs. Saroj Kumar @ Saroj Singh, 2008 (4) Civil Court Cases 523 (Patna);"
on the one hand, taking the view if sale deed under challenge was not executed by the plaintiffs but was executed by third-party, the plaintiffs are not liable to pay ad valorem Court fee on the sale consideration recited in the sale deed.
AND "1. Himanshu Vs. Smt. Kailash Rani, 2004 AIR (Punjab) 207;
2. Bagrawat Vs. Mehar Chand, 2001(4) RCR (Civil) 94;
3. Ranjit Singh Vs. Balkar Singh (Civil Revision No.3079 of 1999, decided on 7.7.1999;"
on the other hand taking the view if sale-deed executed by the father of the plaintiffs is challenged the plaintiffs are liable to pay ad valorem Court fee.
Hon'ble the Chief Justice vide order dated 8.2.2010 directed to place this petition before us.
Brief facts of the present case inter-alia are that the plaintiffs - CR No. 22 of 2009 3 petitioner herein preferred suit for declaration against their own father - defendant No.3 and against their own real brothers - defendant Nos.1 and 2 with allegation that defendant No.3 had executed the sale deed in favour of defendants No.1 and 2 (real brothers of the plaintiffs and proforma defendants) without any legal necessity alienating the share of the plaintiffs and the proforma respondents. According to the plaintiffs, defendant No.3 (father) was not competent to alienate share of the plaintiffs and the proforma respondents, hence sale-deed is void ab initio and non-effective qua the shares of the plaintiffs and proforma defendants and on the basis of the impugned sale-deed defendants No.1 and 2 neither acquired nor could acquire right or title on the property in dispute, hence, further permanent prohibitory injunction be granted against defendants No.1 and 2 (vendee's brothers) not to alienate the property in dispute.
Defendants contested the suit on various grounds. Undisputedly, defendants have not raised any plea of wrong evaluation or deficit payment of Court fee in the written statement; however, subsequently defendants moved an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground of a wrong evaluation and deficit payment of Court fee. The trial Court vide impugned judgement dated 2.12.2008 relying upon the judgements of this Court in Ranjit Singh and others Vs. Balkar Singh and another 2000(2) CCC 504 (P&H), Om Parkash Vs. Indrawati & others, 2002(3) CCC 263 (P&H) and Ajmer Singh Vs. Punjab Singh (minor) and another, 2007(1)RCR Civil 437, agreed with the contention of the defendants and directed the plaintiffs to deposit ad valorem Court fee on the sale consideration shown in the sale deed. This order of the trial Court is under challenge in the present revision. CR No. 22 of 2009 4
We have heard learned counsel for the parties and perused the record.
From the pleadings of the plaintiffs, it is clear that sons of defendant No.3 and brothers of defendants No.1 and 2 filed suit for declaration against their own father and real brothers saying that father i.e. defendant No.3 has alienated the share of the plaintiffs and the proforma defendants in favour of the real brothers of the plaintiffs and the proforma defendants without any authority; hence any sale deed executed by the father qua the share of the plaintiffs and proforma defendants is not effective and ipso facto illegal and void ab initio. The only consequential relief sought by the plaintiffs is to restrain defendants No.1 and 2 not to alienate the shares of the plaintiffs and proforma defendants purchased by defendants No.1 and 2 vide sale-deed impugned in the plaint.
Recently the Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, CA No.2811-13 of 2010 decided on 29.3.2010 (Quorum Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice R.M. Lodha, JJ), arising out of the judgement of this Court involving identical question of payment of Court fee has observed as under: -
"Leave granted.
The appellant filed a suit (Case No.381/2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarizes below :
(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were co-
parcenary properties as they were purchased from the sale CR No. 22 of 2009 5 proceeds of ancestral properties, and that he was entitled to joint possession thereof;
(ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third defendant, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est "qua the co-parcenary";
(iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S.Rajender Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the "co-parcenary", as they were not for legal necessity or for benefit of the family; and
(iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.
2. The appellant claims to have paid a court fee of Rs.19.50 for the relief of declaration, Rs.117/- for the relief of joint possession, and Rs.42/- for the relief of permanent injunction, in all Rs.179/-. The learned Civil Judge heard the appellant- plaintiff on the question of court fee and made an order dated 27.2.2007 holding that the prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and therefore ad valorem court fee was payable on the sale consideration in respect of the sale deeds.
3. Feeling aggrieved the appellant filed a revision contending CR No. 22 of 2009 6 that he had paid the court fee under section 7(iv)(c) of the Court-fees Act, 1870; and that the suit was not for cancellation of any sale deed and therefore the court fee paid by him was adequate and proper. The High Court by the impugned order dated 19.3.2007 dismissed the revision petition holding that if a decree is granted as sought by the plaintiff, it would amount to cancellation of the sale deeds and therefore, the order of the trial court did not call for interference. The application filed by the appellant for review was dismissed on 11.2.2008. The application for recalling the order dated 19.3.2007 was dismissed on 24.4.2008 and further application for recalling the order dated 24.4.2008 was dismissed on 16.5.2008. Feeling aggrieved, the appellant has filed these appeals by special leave.
4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not 'binding on the co- parcenary', and for the consequential relief of joint possession and injunction.
5. Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab ('Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no CR No. 22 of 2009 7 consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides :
"7. 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 :
(iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x 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:
Provided that minimum court-fee in each shall be thirteen rupees.
Provided further that in suits coming under sub-clause (c), in cases where the relief sought 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 this section."
The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with CR No. 22 of 2009 8 reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.
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/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 CR No. 22 of 2009 9 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 this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
8. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, CR No. 22 of 2009 10 with reference to the plaint averments."
In view of the judgement of the Apex Court as reproduced hereinabove, we are of the opinion that the question referred to this Bench stands answered and view taken by the Apex Court in the matter of Suhrid Singh's case (supra) is to be followed.
In view of the above, question referred is answered accordingly. Let the matter be placed before learned Single Judge to pass appropriate order in the revision petition.
( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 03.05.2010 sk.