Punjab-Haryana High Court
Chatter Singh & Ors vs Zile Singh & Ors on 8 January, 2009
CR No. 1981 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 1981 of 2007
Date of Decision: 8.1.2009
Chatter Singh & Ors. ...Petitioners
Vs.
Zile Singh & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Ashok Aggarwal, Advocate,
for the petitioners.
Mr.Kulbhushan Sharma, Advocate,
for respondents No.1 to 3.
Mr.Lokesh Sinhal, Advocate,
for respondent No.4.
Mr.Hemant Saini, Advocate,
for respondent No.5.
---
Vinod K.Sharma,J.
This order shall dispose of Civil Revision Nos.1981 of 2007, 2627 and 4515 of 2008 titled Chatter Singh & Ors. Vs. Zile Singh & Ors., CR No. 1981 of 2007 2 Chatter Singh & Ors. Vs. Zile Singh & Ors. and Anaro Devi Vs. Jitender Singh & Ors., as common question of law and facts are involved in these petitions.
For brevity, the facts are being taken from CR No.1981 of 2007.
The petitioners claim that they constitute a Hindu coparcenary family with respondents No.1 to 4. It is also claimed that the petitioners and respondents No.1 to 4 acquired a right in the property in dispute by birth. Tota Ram son of Ganga Sahai was owner in possession of agricultural land measuring 38 kanals 15marlas situated within the revenue estate of village Sihi, Tehsil Ballabgarh District Faridabad which also formed part of the joint Hindu family property as the said property was said to have been inherited by Tota Ram from Ganga Sahai, the common ancestor.
The father of the petitioners Ranjit Singh died in the year 1997, whereas Tota Ram died on 23.8.2002. He was survived by Anaro Devi respondent No.4 who is daughter of Tota Ram. The petitioner/plaintiffs claimed that the share of the plaintiffs and that of defendants No.1 to 4 was:-
Plaintiffs 2/3rd share;
Defendants No.1 to 3, 1/6th share and Defendant No.4, 1/6th share.
The petitioners further claim that after the death of Ranjit Singh, respondent No.3 clandestinely obtained lease deed on 15.12.1999 from Tota Ram and respondents No.1 and 2 obtained a collusive decree in CR No. 1981 of 2007 3 their favour on 1.8.2000 and Will dated 21.3.1995.
Petitioner/plaintiffs filed a suit to claim that the collusive decree, Pattanama and the Will were bogus, void, sham and illegal transactions which passed no right to respondents No.1 to 3. It was further claimed that respondents No.1 and 2 further transferred the suit land on the basis of sale deed in favour of respondent No.5. The said sale deed was also said to be void and not binding on the rights of the petitioners. The petitioners also challenged the sale, lease hold rights transferred by respondent No.3 in favour of respondent No.5 to be void and illegal and not binding on the rights of the petitioners. The petitioners, therefore, sought a relief of declaration that they were owners to the extent of 2/3rd share and respondents No.1 to 3 along with respondent No.4 were owners to the extent of 1/3rd share in the property held by Tota Ram during his life time as Hindu coparcenary property and that respondent No.5 has no right, title or interest on the said share of Hindu coparcenary property on the basis of alleged sale deed by respondents No.1 to 3. Consequently, relief of injunction/joint possession was also claimed.
The petitioners further claimed that as they were not parties to the alleged transactions of sale and the sale was without the knowledge and consent of the plaintiffs was void ipso facto and therefore, was liable to be ignored and thus, it was claimed that the main relief sought is of declaration and challenge to the sale/lease transaction is consequential. Consequently, the suit was valued at Rs.200/- and a court fee of Rs.25/- was paid. It was also claimed that the dispute being with regard to the agricultural land, the CR No. 1981 of 2007 4 value for the purpose of court fee and jurisdiction is Rs.50/- per acre and the court fee was paid as per law laid by this court in the case of Smt.Beena and others Vs. Rajinder Kumar 2006 (2) PLR 6.
On notice having been issued the defendant/respondents moved an application under Order 7 Rule 11 of the Code of Civil Procedure (for short the Coder) for rejection of the plaint for want of proper court fee. It was claimed by the respondent/defendants that the plaintiff/petitioners have challenged the sale deed executed by defendants No.1 and 2 in favour of defendant No.5 for a consideration of Rs.44,87,512/- and another sale deed executed by defendant No.3 in favour of defendant No.5 for a consideration of Rs.2,54,52,500/- and therefore, they were required to affix ad valorem court fee on the sale price of both the sale deeds.
The application was contested in which it was claimed that the suit filed by the plaintiffs was covered under section 7(iv)(c) of the Court Fee Act (for short the Act) as it was a suit for declaration with regard to existing rights in the suit property. It was also mentioned that the suit land is agricultural land and subject to land revenue and hence the court fee payable would be in terms of Section 7 (v) of the Act as per the amendment in the Court Fee Act by Haryana Act No.22 of 1974.
Learned trial court came to the conclusion that in view of the law laid down by Hon'ble Full Bench of this court in the case of Niranjan Kaur Vs. Nirbigan Kaur 1981 PLJ 423 the petitioners were liable to pay ad valorem court fee on the amount mentioned in the sale deeds. Learned trial court was pleased to observe that in order to attract provisions of CR No. 1981 of 2007 5 Section 7 (iv) (c) of the Act the main and substantive relief should be that of declaration and consequential relief should be ancillary thereto.
Mr. Ashok Aggarwal, learned counsel appearing on behalf of the petitioners has challenged the impugned order by placing reliance on the judgment of this court in the case of Bhagwan Kaur & Ors. Vs. Amrik Singh and Ors. 2007 (1) Civil Court Cases 14 to contend that the declaration sought by the petitioners was with respect to ownership being co-parcenar in the joint Hindu family property by claiming to be in joint possession and relief of permanent injunction was only consequential. Thus, the declaration sought with respect to challenge the sale deed and lease deed being illegal, null and void does not attract the ad valorem court fee. This court in the case of Bhagwan Kaur & Ors. Vs. Amrik Singh & Ors. (supra) has been pleased to lay down as under:-
"5. However, I am unable to agree with the argument raised by learned counsel for the petitioners. The argument raised by the learned counsel for the petitioners is misconceived in law.; The judgment of Full Bench of this Court in Niranjan Kaur's case (supra) is not being read correctly by the learned counsel for the petitioners. The Full Bench was seized of a case where the plaintiff, who was a party to a document, filed a suit for cancellation of a registered document and also sought possession as a consequential relief thereof. It was found that in order to bring the case under section 7(iv)(c) of the Court Fees Act, 1870 (hereinafter to be referred as "the Act"), the CR No. 1981 of 2007 6 main and substantive relief should be that of declaration and the consequential relied should be ancillary thereto. If no consequential relief is claimed or could be claimed in the suit, then section 7 (iv)(c) of the Act will not be attracted. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act shall be applicable. The Full Bench found that the suit was virtually for the cancellation of the sale deeds and the plaintiff cannot obtain possession unless such decree is cancelled by a decree of the Court. Thus, it was a suit for declaration for cancellation of the sale deed and possession as a consequential relief thereof. Thus, where consequential relief of possession cannot be granted without cancellation of the document, those cases alone will attract ad valorem court fees. Still further, the said principle would not be applicable in respect of the suit for declaration by a son of a member of the coparcenary under Hindu Law. The Full Bench itself found that such suits would be on a different footing. In such suits, the main relief would be that of declaration and consequential relief of injunction restraining the decree holder from executing the decree against the son will be just ancillary. The following observations would be relevant to appreciate the controversy raised herein:-
"8. It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of CR No. 1981 of 2007 7 the sale deed, then the case is not covered by section 7
(iv)(c) and the only provision applicable is Article I, Schedule I of the Act. In order to bring the case under section 7 (iv)(c) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary thereto.
Moreover if no consequential relief is claimed or could be claimed in the suit, then section 7(iv)(c) will not be attracted. Section 7 (iv)(c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No.31 of 1953, which reads as under:-
"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".
9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all CR No. 1981 of 2007 8 intents and purposes, for the cancellation of the sale deed, executed by her, in favour of the defendant- respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court...."
"6........A suit for declaration by a son or a member of a coparcenary under the Hindu Law will thus be on a different footing. In such a suit, the main relief will be that of a declaration and the consequential relief of injunction restraining the decree-holder from executing the decree against the sons etc. will be just ancillary...."
6. In the light of aforesaid judgment, it may be noticed that Bagrawt's case (supra) and Jadish's case (supra) were the cases where the suit was for a declaration challenging the legality of the sale deed executed in respect of a joint Hindu family property. The said judgments run counter to the principles laid down by the Full Bench of this Court and,therefore, reliance on the said judgments is not tenable. In M/s Iron Master (India) Limited's case (supra), the bank had filed a suit for recovery. The said decree was sought to be challenged by the plaintiffs on the ground of fraud and decree was sought to be challenged by the plaintiffs on the ground of fraud and misrepresentation. It was rightly held therein that ad valorem court fees is required to be affixed as the plaintiffs are party to the said suit. In Ranjit Singh's case (supra) and Om CR No. 1981 of 2007 9 Parkash's case (supra), it cannot be found out that any consequential relief was claimed and, therefore, the said judgments would again does not provide any assistance to the petitioners.
7. This Court in Gurjeewan Singh Vs. Jagar Singh and others 1990 Civil Court cases 240 (P&H): (1990-1) 97 PLR 261 has held that ad valorem court fee is not required to be affixed where the challenge is to the alienation of joint Hindu family property, whereas in Bhag Singh Vs. Jarnail Singh and others 1990 Civil Court Cases 666 (P&H): (1990-2) 98 PLR 223, it has been held that where the plaintiff is in possession ad valorem court fee not required to be affixed."
Learned counsel appearing on behalf of the petitioners also placed reliance on the judgment of this court in the case of Raj Kumar & Ors. Vs. Shri Dadu Dayal Trust and others (2007-1) PLR 584 by claiming that once the petitioners were not party to the sale deed then the cancelation of sale deed is by way of consequential relief and not as the substantive relief. This court in the case of Raj Kumar & Ors. Vs. Shri Dadu Dayal Trust and others (supra) has been pleased to lay down as under:-
"15. It may be noticed here that the petitioners were not party to the sale deeds. Neither the sale deeds were executed by the Mandir on whose behalf the suit has been filed in the CR No. 1981 of 2007 10 representative capacity. The sale deeds were executed by defendants No.1 to 3 in favour of other defendants on the basis of mutation sanctioned in their favour which according to the plaintiff was subsequently set aside. In these circumstances, it is held that defendants No.1 to 3 had no right to deal with the property of the Mandir and the mutation was rightly set aside by the revenue authorities. The cancellation of the sale deeds would be by way of consequential relief and not a substantive relief.
16. xx xx xx.
17. In view of what has been discussed above the impugned order passed by the learned Trial Court cannot be sustained and it is accordingly set aside and the revision petition is allowed. The court fee payable, therefore, would be in terms of Section 7 (iv) (c) of the Court Fee Act and ad valorem court fee would not be payable as directed."
Reliance was also placed on the judgments of this court in the case of Ishwar Vs. Smt. Om Pati & Ors (2006-2) PLR 859 in the case of Dr.Ashok Kumar Goyal Vs. Arya Mittar and Ors. (2007-1) PLR 798 as also Lala Ram Vs. Smt.Vidya Wati @ Vidya Devi (2006-2) PLR 352.
Finally, learned counsel for the petitioners contended that even if for the sake of arguments it is held that the ad valorem court fee would be payable in that event also in view of the law laid down by this court in the CR No. 1981 of 2007 11 case of Smt.Beena and others Vs. Rajinder Kumar (Supra) the court fee payable would be not on the value of the property as shown in the document but 10 times the land revenue in terms of section 7 (iv) (c) of the Act as quantified under section 7 (v) of the Act. The contention is that the said court fee stands paid.
Mr.Hemant Saini, learned counsel appearing on behalf of respondent No.5, however, contends that as the suit for declaration has been filed by the petitioners claiming the sale deed to be void and not binding on the rights of the petitioners the ad valorem court fee is to be paid as the relief of declaration cannot be granted without cancellation of the said document. In support of this contention he placed reliance on the judgment of this court in the case of Anil Rishi Vs. Gurbaksh Singh AIR 1999 Punjab & Haryana 121.
Reliance was also placed on the judgment of this court in the case of Himanshu Vs. Smt. Kailash Rani 2004 (4) RCR (Civil) 582 to contend that as the petitioners are seeking declaration that the sale deed executed by Tota Ram was illegal and void and not binding on the rights of the petitioners the validity of the sale deed, thus, stands challenged and therefore, ad valorem court fee is required to be paid as per the sale consideration mentioned in the sale deed.
Reliance has also been placed on the judgment of this court in the case of Jagdish Vs. Jagat Pal 2003 (2) RCR (Civil) 732 to contend that ad valorem court fee was required to be paid and therefore, the impugned orders do not suffer from any illegality.
CR No. 1981 of 2007 12
Finally, reference was made to the judgment of Hon'ble Full Bench of this Court in the case of Niranjan Kaur Vs. Nirbigan Kaur 1982 PLR 127 to contend that the main relief in the present case is that of cancellation of sale deed and therefore, the court was justified in ordering the affixation of ad valorem court fee on the value as mentioned in the sale deed.
However, on consideration of the matter, I find force in the contention raised by the learned counsel for the petitioners.
The petitioners have sought declaration of their rights in the coparcenary Hindu joint family property in which they claim that they have an interest by birth and thus, it cannot be said that the main relief claimed by the petitioners is that of cancellation of the documents. The petitioners are not claiming right through the vendor or transferor of the property in dispute but their own right in the property. They are not party to the sale deed or lease deed. Thus, the authorities relied upon by the learned counsel for respondent No.5 would have no relevance to the facts of the present case.
Even otherwise, the suit field by the petitioners has been valued correctly for the purpose of court fee and jurisdiction as in view of the law laid down by this court in the case of Smt.Beena and others Vs. Rajinder Kumar (supra) the ad valorem court fee payable would be 10 times the land revenue and not as per the sale consideration mentioned in the sale deeds. The said court fee stands paid by the petitioner/plaintiffs.
Consequently, these revision petitions are allowed. The impugned orders are set aside and the application moved by the CR No. 1981 of 2007 13 defendant/respondents for rejection of the plaint under Order 7 Rule 11 of the Code is ordered to be dismissed with no order as to costs.
(Vinod K.Sharma) 8.1.2009 Judge rp