Meenakshi Devi vs Baksar Devi And Ors. on 26 November, 2014

[Cites 11, Cited by 2]

Punjab-Haryana High Court

Meenakshi Devi vs Baksar Devi And Ors. on 26 November, 2014

Present revision petition has been filed by the petitioner-defendant No.7 against the order dated 30.05.2012 whereby her application under Order 7 Rule 11 CPC has been dismissed on the ground that the plaintiff is not a party to the release deed and the sale deed.

Counsel for the petitioner has vehemently submitted that respondent- Smt.Baksar Devi has challenged the release deed dated 10.04.2009, executed by her and therefore, the Trial Court was not justified in rejecting the application under Order 7 Rule 11.

Counsel for the respondents, on the other hand, has justified the order by holding out that the sale deed executed on 25.08.2009 was by the general power of attorney and therefore, the petitioner being not party personally, was not liable to pay ad valorem Court fees.

A perusal of the paperbook would go on to show that the suit for SAILESH RANJAN declaration was filed by respondent No.1, taking the plea that she was in 2014.11.28 09:48 I attest to the accuracy and integrity of this document CR No.5833 of 2012 -2- possession of 1/10th share in the land described in the plaint, measuring 168 kanals 16 marlas and her share was 16 kanals 18 marlas, falling in the revenue estate of Kaliawas, Tehsil Farrukh Nagar, District Gurgaon. Defendant Nos.1 to 6 were her nephews and she was residing at her in-laws house at Delhi. Defendant No.1 had approached her on the ground that his mother was ill and she had come on the 05/06.04.2009 to the village to see her ailing sister-in-law and remained there till 12.04.2009. The defendants had hatched a conspiracy that some application for partition had to be filed before the Tehsildar and under that impression, she came to the Tehsil premises on 10.04.2009 and her thumb impressions were obtained. Later on, she came to know on 10.08.2009 that release deeds had been obtained in respect of the suit land and general power of attorney had also been executed and she was an illiterate lady. The general power of attorney had been cancelled on 07.09.2009 and defendant No.1, without any authority, had sold the property to petitioner-defendant No.7 vide sale deed dated 12/25.08.2009. Resultantly, the application under Order 7 Rule 11 was filed on the ground that the sale deed executed was of the value of `19,20,000/- and total expenses of `70,000/- had been incurred on the registration. The Court fees had wrongly been affixed at `25/- and the value of the land was `20 lacs and therefore, the appropriate Court fees was required to the extent of `84,370/-

In the opinion of this Court, the Trial Court was wrongly of the impression that merely because the petitioner was an illiterate lady and defendants had taken advantage and fooled her. Therefore, there was cause of action and there was no deficiency of Court fees since the plaintiff was seeking to be owner in joint possession of the land and the sale deed was not executed by her in favour of the defendants. Reliance was placed upon two judgments of this Court in Jai Krishna Das Vs. Babu Ram & others AIR 1967 P&H 263 and SAILESH RANJAN 2014.11.28 09:48 Sham Lal Vs. Sudesh Kumar & another 2007 (2) PLJ 299.

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However, a perusal of the said judgments would go on to show that in the case of Jai Krishna Das (supra), the Full Bench of this Court only went on to hold that it was the averments in the plaint alone which was to be taken into account while taking a decision on the question of Court fees and it cannot depend upon the pleas raised in defence. The facts of the case go on to show that while treating the issue of Court fees as a preliminary issue, the Trial Court had held that the suit filed falls under Section 7(iv)(c) of the Court Fees Act, 1870 and directed to make up the deficiency in the Court fees. It was, in such circumstances, the Full Bench of this Court had adjudicated in the matter and the said judgment is, thus, not applicable.

In the case of Sham Lal (supra), this Court had held that the plaintiff is not liable to pay ad valorem Court fee as he claimed to be in possession of the land in dispute and was seeking declaration of the release deed which was alleged to be illegal, null and void. Reliance was placed upon the observations made in the case of Jai Krishna Das (supra).

However, the said judgment, now,is distinguishable in view of the judgment of the Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & others 2010 (12) SCC 112, which has come directly on the point wherein it has been held that wherever a person is an executant of the deed under challenge, then he is liable to pay ad valorem Court fees. Relevant observations read 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 regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' SAILESH RANJAN executes a sale deed in favour of `C'. Subsequently `A' wants to 2014.11.28 09:48 I attest to the accuracy and integrity of this document avoid the sale. `A' has to sue for cancellation of the deed. On the CR No.5833 of 2012 -4- 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 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."

The said judgment has been further elucidated by a Division Bench of this Court in Tarsem Singh & others Vs. Vinod Kumar & others 2014 (1) ICC 1054 wherein two categories would be liable to pay ad valorem Court fee, one where an executant of a document wants a deed to be annulled and where the non-executant not in possession seeks for the relief of possession, he is required to pay ad valorem Court fees. In the case of a non-executant, seeking annulment of a deed to which he is not a party, he is only to pay Court fees as per Article 17

(iii) of the Second Schedule of the Court Fee Act, 1870. Relevant observations read as under:

"5. In view of the said example given an example in para No. 6 of the judgment and the finding recorded in para No. 7, we hold as follows:-

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i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed.

ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act.

iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less than the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.

6. In view of the aforesaid judgment of the Hon'ble Supreme Court, the issue leading to payment of the Court fee is decided in terms of the parameters laid down above. The single bench judgments rendered prior to the Supreme Court judgment mentioned above run counter to the aforesaid view and thus overruled. The Reference is answered accordingly. The Single Bench judgments rendered, so far as they run counter to the aforesaid view, are thus overruled."

As noticed above the sale deed in question dated 12/25.08.2009 has been executed on the strength of a registered power of attorney dated 10.04.2009. Where the sale deed itself is under challenge, executed by the power of attorney, it does not lie in the mouth of the defendant-petitioner to submit that she was not party or executant of the sale deed. Once a registered attorney has acted on her behalf and the said attorney was also, admittedly, got cancelled on 07.09.2009, subsequently, the order under challenge would not be justifiable in view of the law laid down in the case of Suhrid Singh (supra) and Tarsem Singh (supra).

Learned counsel for the petitioner was well justified in placing reliance upon two Single Bench judgments of this Court in Teku @ Sat Parkash SAILESH RANJAN 2014.11.28 09:48 I attest to the accuracy and integrity of this document CR No.5833 of 2012 -6- Vs. Jai Bhagwan & others 2007 (4) PLR 39 and Amar Chand & others Vs. Raj Gupta & others 2012 (2) PLR 200, wherein also, this Court had upheld the decision of the Trial Court for a direction to affix ad valorem Court fees on the sale deed which had been executed by a power of attorney allegedly by way of fraud. The plaintiffs had challenged the decision of the Trial Court directing them to pay ad valorem Court fees since the suit was for declaration, challenging the power of attorney and the sale deed on the ground of fraud. Accordingly, it was held that once the attorney had executed the sale deed, the plaintiffs would be considered as executant of the sale deed. Resultantly, placing reliance upon the Division Bench judgment rendered in Tarsem Singh's case (supra), the Co- ordinate Bench of this Court upheld the order directing payment of ad valorem Court fees on account of the fact that the petitioner was executant of the sale deed and sought cancellation thereof in Amar Chand (supra).

Accordingly, in view of the above observations, the order impugned cannot be held to be justified and the same is hereby set aside. The plaintiff is directed to pay the ad valorem Court fees within a period of 2 months from the receipt of a certified copy of this order, failing which the plaint would be liable to be rejected.

With the abovesaid observations, the present revision petition stands allowed.


            26.11.2014                                                   (G.S.SANDHAWALIA)
            sailesh                                                             JUDGE




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