Punjab-Haryana High Court
Bant Singh vs Noble Trade Cone Pvt. Ltd. And Others on 4 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.2911 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.2911 of 2011 (O & M)
Date of Decision:04.10.2013
Bant Singh
....Petitioner
Versus
Noble Trade Cone Pvt. Ltd. and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported in the Digest? Yes
Present: Ms. Ritu Punj, Advocate,
for the petitioner.
Mr. Kanwaljit Singh, Senior Advocate,
with Mr. Ajay Vir Singh, Advocate,
for respondent no.1.
Mr. J.S.Dhaliwal, Advocate,
for respondents no.2 to 5.
****
PARAMJEET SINGH, J.
Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 24.01.2011 (Annexure P-7) passed by learned Civil Judge (Jr. Divn.), Ludhiana whereby petitioner-plaintiff has been directed to pay ad valorem court fee on sale consideration of sale deeds No.6704 and 6705 dated 02.07.2008.
Shorn of unnecessary details, the facts relevant for disposal of Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 2 the present petition are to the effect that the petitioner-plaintiff filed suit for declaration to the effect that sale deeds no.6704 and 6705 dated 02.07.2008 executed by respondents no.2 and 3 to 5 respectively in favour of respondent no.1 with regard to the property situated in village Kanech, Tehsil and District Ludhiana are wrong, illegal, fraudulent documents, as such are liable to be cancelled and consequential relief of permanent injunction restraining respondent no.1 from changing the nature of the property in question by raising the construction or in any manner and from alienating the property in dispute. During the pendency of suit, respondent no.1 and respondents no.2 to 5 filed two separate applications under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (in short 'the CPC') for rejection of plaint on various grounds including non-affixation of ad valorem court fee on the sale consideration of sale deeds dated 02.07.2008. Vide impugned order dated 24.01.2011, the trial Court found that since there is a challenge to the sale deeds dated 02.07.2008, therefore, the petitioner-plaintiff is required to pay ad valorem court fee on sale consideration. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner has contended that the petitioner has filed the suit for declaration and has not sought any consequential relief of possession. The petitioner has claimed property on the basis of inheritance, as it was owned by his father-Ram Singh, Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 3 who had five sons including the petitioner and three daughters. Surjit Singh, one of the brothers of the petitioner, died issueless. Without knowledge of the petitioner, respondents no.2 to 5 got mutation sanctioned in their names without mentioning name of the petitioner therein. The mutation does not confer any title, the petitioner by way of inheritance has a right in the land in question. Since the petitioner is not executant of the sale deeds, as such the same do not bind him in any manner. The sale deeds executed by respondents no.2 to 5 beyond their share are illegal, wrong, arbitrary, null and void and not sustainable in the eyes of law. The learned counsel has further contended that it is common knowledge that pleadings are poorly drafted in Subordinate Courts. The learned counsel has further contended that the sale deeds do not have any effect on the right and share of the petitioner, as such are not binding upon him to that extent. Since he is claiming the property as co-sharer, he is not bound to pay court fee on sale consideration, when he is not seeking relief of possession. In support of his contentions, the learned counsel has relied upon Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. 2010 (2) CCC 510, Ravinder Kumar v. Narinder Kumar & Ors. 2007 (2) RCR (Civil) 1, Muncipal Council, Bathinda v. Raj Kumar 2006 (4) RCR (Civil) 562, Surinder Singh v. Narinder Singh 2010 (4) RCR (Civil) 139 Krishna Devi and another v. Jaswant Singh 2006 (4) RCR (Civil) 563 and Ran Singh and another v. Jai Narain 2011 (2) The Punjab Law Reporter 176.
Learned counsel for respondents no.2 to 5 has vehemently Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 4 opposed the contentions of learned counsel for the petitioner and contended that the petitioner-plaintiff is not a co-sharer in the land in question. Since the petitioner has prayed for cancellation of sale deeds dated 02.07.2008 in prayer clause of the plaint, he is required to pay ad valorem court fee with respect to the cancellation of the sale deed and joint possession. The petitioner is not in possession of any part of the land in question and mere suit for declaration and injunction does not lie. In support of his contentions, the learned counsel has relied upon Ram Saran v. Smt. Ganga Devi AIR 1972 (SC) 2685 and Mohinder Singh v. Shamsher Singh 2010 (2) RCR (Civil) 505. The learned counsel has further made reference to the application made by respondent no.1 under Order 7 Rule 11 CPC (Annexure P-3) wherein it is mentioned that the petitioner is not in possession and failed to seek mandatory relief of possession, therefore, the suit is liable to be dismissed. The learned counsel has further contended that in view of law laid down in Suhrid Singh @ Sardool Singh (supra), if a person who is neither in possession nor co-sharer in the property, seeks cancellation of the sale deeds, then he is liable to pay ad valorem court fee. The learned counsel has further made reference to Anil Rishi v. Gurbaksh Singh 1998 (3) RCR (Civil) 135 and Om Parkash v. Indrawati 2002 (4) RCR (Civil)
186. The learned counsel has further contended that since the name of the petitioner does not figure in the revenue record and he seeks cancellation of the sale deeds, he is liable to pay ad valorem court fee in view of Chapter III and Section 7(vi) of the Court Fees Act, 1870, as per Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 5 which a person who is not in possession wants to enforce his right of share in joint property, he is liable to pay the court fee. The learned counsel has relied upon Jagdish v. Jagat Pal 2003 (2) CCC 635 and Bagrawat v. Mehar Chand and others 2001 (2) PLJ 204.
Identical arguments have been raised by learned senior counsel for respondent no.1 and reference has been made to Niranjan Kaur v. Nirbigan Kaur 1981 PLJ 423 in addition to the references made by learned counsel for respondents no.2 to 5.
I have given my conscious thought to the contentions raised by learned counsel for the parties.
It is well settled that when the Court decides question of court fee, the same is to be decided by looking into the averments made in the plaint and from those averments to find out what is the substantive relief that is asked for.
The issue of court fee payable on a plaint is certainly to be decided on the basis of averments and prayer made in the plaint. Whether the suit of the plaintiff is likely to fail for failure to ask for consequential relief of possession is not the concern of the Court while deciding application under Order 7 Rule 11 CPC. The Court will only look into the contents of the plaint to see what is the relief asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In the present case, the petitioner has asked for a relief on the basis that the property in dispute originally belonged to Ram Singh, father of the Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 6 petitioner-plaintiff and other defendants. The said property as natural succession will devolve upon all the legal heirs of deceased-Ram Singh and mere sanctioning of mutation by not mentioning the name of petitioner-plaintiff will not affect the rights of the petitioner to seek declaration. On the basis of wrongly sanctioned mutation, sale deeds executed by respondents no.2 and 3 to 5 in favour of respondent no.1 will not be binding on the rights of the petitioner-plaintiff.
It is well settled that the mutation does not confer any title, as such rights of the parties are not affected. The parties can seek declaration in accordance with law. Therefore, the contention of learned counsel for the respondents that mere simple suit for declaration does not lie is not a matter in issue before this Court. This court is dealing with the issue of affixation of court fee only. The proposition of law laid down in Ram Saran (supra) is not at all in dispute, but the same do not apply in the proceedings when the court is deciding the issue of affixation of court fee. Hence, this contention raised by learned counsel for the respondents is devoid of merits.
Now this Court has to see whether the relief claimed in the present suit is in fact for cancellation of the sale deeds, although it is mentioned in the plaint and prayer clause. The sum and substance of the plaint is that deceased-Ram Singh, father of the petitioner-plaintiff, was owner in possession of the property in question, who left behind five sons including the petitioner and three daughters. He died without leaving behind any testamentary document, as such the property would Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 7 devolve as per natural succession. Mutation no.2902 regarding inheritance of deceased-Ram Singh leaving the name of petitioner from the list of natural heirs is null and void and subsequent sale deeds have no effect on the rights of the petitioner-plaintiff. In view of law of inheritance, the petitioner has a share being son of deceased-Ram Singh for which he is seeking declaration. His mere relief is for declaration and not possession. As a result of this, he is liable to pay court fee as applicable to a suit for declaration alone as per Section 7 (iv) (c ) of the Court Fees Act, 1870 which reads as under:
"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."
The main and substantive relief sought is declaration on the basis of natural succession and illegal sanction of mutation of inheritance of deceased-Ram Singh. Keeping in view the relief sought, it is clear that the petitioner is claiming his right on the basis of inheritance to properties of deceased-Ram Singh, as such ad valorem court fee is not payable.
The Hon'ble Supreme Court in Suhrid Singh (supra) has held as under:-
"5. Court fee in the State of Punjab is governed by the Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 8 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 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 case 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 Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 9 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 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 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 Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 10 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 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." Admittedly, the petitioner is a non-executant of and not party to the sale deeds, as such the same are not binding upon his rights Although, the cancellation of sale deeds has been prayed for, but it is not a consequential relief, rather ancillary one as sale deeds to the extent of his share will not bind the petitioner, however, the sale deeds can remain valid with regard to the share of other co-sharers. It is settled principle of law that succession never remains in abeyance. The property Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2911 of 2011 11 devolves upon the rightful heirs the moment its owner dies. In the present case, the petitioner is claiming natural succession after the demise of his father.
The matter is squarely covered by Suhrid Singh's case (supra). The judgments cited by learned counsel for the respondents are not applicable in the facts of the present case.
The petitioner claims to be a co-sharer in the property on the basis of natural succession and seeks declaration that the mutation of inheritance of deceased-Ram Singh is null and void, it being without the knowledge and without mentioning the name of petitioner as legal heir of deceased-Ram Singh. It is also claimed by the petitioner that the subsequent sale deeds are based on illegal and wrongful mutation and the petitioner is not an executant to the sale deeds, nor the relief of possession has been claimed by the petitioner. I, therefore, hold that for aforesaid reasons, he is not required to pay ad valorem court fee on the sale deeds.
In view of above, the impugned order dated 24.01.2011 (Annexure P-7) is illegal, perverse and not sustainable in the eyes of law. Accordingly, the instant petition is allowed and the impugned order dated 24.01.2011 (Annexure P-7) is set aside.
(Paramjeet Singh) Judge October 04, 2013 parveen kumar Kumar Parveen 2013.10.11 17:59 I attest to the accuracy and integrity of this document High Court, Chandigarh