Punjab-Haryana High Court
Surjit Singh vs Karamjit Kaur on 16 February, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
C.R. No. 3633 of 2011(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 3633 of 2011 (O&M)
Date of Decision: February 16, 2012
Surjit Singh
.....Petitioner
Vs.
Karamjit Kaur
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.Deepak Aggarwal, Advocate
for the petitioner.
Mr.A.S. Ahluwalia, Advocate
for the respondent.
-.-
M.M.S. BEDI, J. (ORAL)
The petitioner through instant petition under Article 227 of the Constitution of India has challenged the order dated April 28, 2011. The trial Court has directed the plaintiff- petitioner to fix ad valorem Court fee in terms of Section 7 (4) (c) of the Court Fee Act as quantified in Section 7 (5) of the Court Fee Act, i.e. for fixing required fee on value of transfer deed.
C.R. No. 3633 of 2011(O&M) [2]
Briefly stated the case of the plaintiff- petitioner as per his plaint is that his son Gurprem Singh, the husband of defendant- respondent has died leaving two minor daughters. The petitioner is an old infirm person whereas the respondent-defendant by using her influence got registered Will regarding his property executed in favour of minor daughters of his deceased son. The petitioner had gone to tehsil complex on February 23, 2011for execution of registered Will in favour of minor daughters but by using undue influence and fraud, a transfer deed of 320/2824 share of 144 kanals 4 marlas of land in dispute was got executed in her favour besides a Will dated February 23, 2011. The Registered Will was cancelled on March 4, 2011 besides a complaint having been filed before the police. The respondent had filed an application for a direction to the petitioner to pay advalorem Court fee according to the market price of the suit property.
Vide impugned order dated April 28, 2011, the trial Court has directed the petitioner to pay advalorem Court fee according to the market price of the suit property.
Learned counsel for the petitioner has submitted that no stamp duty is payable as per the instructions of the Government in case the property is transferred to relations. The petitioner is himself in possession of the property. He has not claimed possession of the suit property. The transfer deed which was challenged is also without any sale consideration. Counsel for the petitioner has relied upon Teja Singh Vs. Smt. Amar Kaur and others, 2008 (1) CCC 531 holding that where the plaintiff does not C.R. No. 3633 of 2011(O&M) [3] claim possession as a consequential or substantive relief, then Article 1 Schedule I of the Court Fee Act should applicable only.
I have heard learned counsel for the petitioner as well as learned counsel for the respondent. The provisions of Section 7 of the Court Fee Act came up for consideration before Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 (2) RCR (Civil) 564, in which it was held as follows:-
"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 C.R. No. 3633 of 2011(O&M) [4] 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."
If the principle laid down in the above said judgment is followed in the present case, the plaintiff- petitioner, who is executant of the C.R. No. 3633 of 2011(O&M) [5] deed has sought declaration that the transfer deed dated February 23, 2011 in favour of the defendant- respondents is null and void. Since the plaintiff himself is executant of the deed and he seeks cancellation of the deed, he is no doubt required to pay advalorem court fee for the consideration paid on the sale deed but in the present case no sale consideration has been paid by the defendants. Even the possession has also not been claimed by the plaintiff- respondent.
Taking into consideration the said two factors, the petition is allowed and the order passed by the trial Court, requiring the plaintiff to pay the ad-velorum court fee in terms of Section 7 (4) (c) of the Court Fees Act is set aside holding that the plaintiff is not required to affix the advalorem court fee at the market value of the property.
The parties are directed to appear before the trial Court on the date already fixed.
February 16, 2012 (M.M.S.BEDI) sanjay JUDGE