Punjab-Haryana High Court
Surjit Kaur vs Tej Kaur And Ors on 30 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.10.07 15:04
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.3478 of 2013 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3478 of 2013 (O&M)
Date of decision:30.09.2014
Surjit Kaur ...Petitioner
Versus
Tej Kaur and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Mukand Gupta, Advocate,
for the petitioner.
Mr. S.S.Sidhu, Advocate,
for the respondents.
*****
RAKESH KUMAR JAIN, J.
This petition is filed against the order dated 30.03.2013, dismissing the application filed by the defendants under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") for rejection of the plaint.
In brief, the plaintiffs filed a suit for declaration that they are owners of land measuring 27 kanal 18 marlas, situated within the revenue estate of village Har Rai Pur, Tehsil and District Bathinda, the General Power of Attorney No.100 dated 04.05.2011, alleged to have been executed by the plaintiffs in favour of defendant No.2 is illegal, null and void, obtained by defendant no.2 by misrepresentation of facts and further the sale deed No.4203 dated 08.07.2011 got executed and registered by defendant no.2 representing himself as General Power of Attorney of plaintiff no.2 on the basis of the GPA dated 04.05.2011 in respect of the land measuring VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.3478 of 2013 (O&M) [2] ***** 16 Kanal 14-1/5 marlas, i.e. 3/5th share out of the land measuring 27 kanal 18 marlas, in favour of defendant no.1 for an alleged consideration of `13,20,000/-, sale deed No.4204 dated 08.07.2011, executed by defendant no.2 representing himself as GPA of plaintiff no.1 on the basis of GPA dated 04.05.2011 in respect of land measuring 11 Kanal 3-1/5 marlas, i.e. 2/5th share out of land measuring 27 Kanal 18 Marlas in favour of defendant no.1 for `8,82,500/-, the mutation No.7630 sanctioned on the basis of the sale deed No.4203 dated 08.07.2011 and mutation No.7631 sanctioned on the basis of alleged sale deed No.4204 are illegal, null and void and prayed for possession of the above said land as a consequential relief and also for permanent injunction to restrain defendant no.1 from alienating the suit land or any part thereof to any other person by way of mortgage, gift or exchange etc. The defendants filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint for want of proper Court fee. The said application has been dismissed by the learned trial Court observing that where the plaintiffs are the parties to the sale deed and challenged the same along with possession, then ad valorem court fee is required to be paid, whereas in the present case, the sale deeds have been executed by General Power of Attorney of the plaintiffs who was having possession of the suit property under lease. It is also observed that the age and illiteracy of the plaintiffs cannot be ignored and they cannot be burdened with heavy court fee before adjudicating the allegations levelled by them and in case of prima facie allegation of fraud is made where the sale deeds are stated to be VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.3478 of 2013 (O&M) [3] ***** void abinitio, there is no need to pay the ad valorem court fee.
Learned counsel for the petitioner has submitted that admittedly, the plaintiffs, who are the non-executant of the sale deed and are not in possession of the suit land, are not only seeking declaration that the sale deeds are invalid but also praying for possession, are required to pay the ad valorem Court fee as per Section 7(iv)(c) of the Court Fees Act, 1870 (here-in-after referred to as the "Act") and in this regard, relied upon a decision of the Supreme Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, AIR 2010 Supreme Court 2807.
On the other hand, learned counsel for the respondents has relied upon a judgment of this Court in the case of Kulwinder Kaur and others v. Sukhwant Singh and others, 2010(3) PLR 182 to contend that if a person is not a party to the sale deed, he is not required to affix the ad valorem Court fee for the purpose of challenging the sale deed.
I have heard learned counsel for the parties and examined the record with their able assistance.
Admittedly, the case of the plaintiffs is that they are non- executant of the sale deed and are not in possession. They have filed the suit for declaration not only to set aside the sale deeds executed on their behalf by defendant no.2 acting as their General Power of Attorney on the basis of the forged Power of Attorney but also prayed for possession of the property in dispute with consequential relief that the defendants may not create any third party rights. In this regard, the judgment relied upon by learned counsel for the respondents in Kulwinder Kaur's case (supra) is of VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.3478 of 2013 (O&M) [4] ***** no help because that judgment was delivered on 25.01.2010, relying upon an earlier judgment of this Court in the case of Ravinder Kumar v. Narinder Kumar and others, 2007(2) PLR 577 in which it was held that if the plaintiff is not a party to the sale deed and was claiming ownership and consequential relief, then he is not required to pay the ad valorem Court fee for the purpose of challenging the sale deed and no law contrary to the said judgment was referred to by the counsel for the respondents in that case, but later on, the judgment of the Supreme Court has come in Suhrid Singh @ Sardool Singh's case (supra), decided on 29.03.2010, in which it has been held that if a suit for declaration is filed by a non-executant of the sale deed, not in possession of the property in dispute, seeking not only declaration that the sale deed is invalid but also consequential relief of possession, has to pay the ad valorem Court fee, as provided under Section 7(iv)(c) of the Act, but if such a suit is filed by the plaintiff who is non-executant, but in possession and sues for a declaration that the sale deed is null or void and does not bind him or his share, has to merely pay a fixed court fee of `19.50/- under Article 17(iii) of the Second Schedule of the Act. The relevant paragraph of the said judgment 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 VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.3478 of 2013 (O&M) [5] ***** 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, 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. 19.50under 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 VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.3478 of 2013 (O&M) [6] ***** 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."
Thus, in view of the aforesaid judgment, the law laid down by the Supreme Court is that in a case of non-executant of the sale deed, in possession of the suit property, seeking declaration that the sale deed is null and void, a fixed Court fee of `19.50/- is to be paid, but if such plaintiff/non-executant is not in possession of the suit property and prays for consequential relief of possession as well in the suit for declaration, then ad valorem Court fee has to be paid.
In view of the aforesaid discussion, the present revision petition is found to be meritorious as in this case also, the plaintiffs, who are non- executant of the sale deeds, not in possession of the suit property, seeking declaration that the sale deeds are not binding on their rights and asking for consequential relief of possession, have to pay the ad valorem Court fee.
Resultantly, the present revision petition is hereby allowed and the impugned order is set aside.
September 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE