Suhrid
Singh @ Sardool Singh Vs. Randhir Singh & Ors. [2010] INSC 232 (29 March
2010)
Judgment
Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.
2811-2813 OF 2010 [Arising out of SLP [C] Nos.6745-47/2009] Suhrid Singh @
Sardool Singh ... Appellant Randhir Singh & Ors. ... Respondents
R.V.RAVEENDRAN,
J.
Leave granted.
1.
The appellant filed a suit (Case No.381/2007) on the file of the
Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint
contains several elaborate prayers, summarizes below :
(i) for a
declaration that two houses and certain agricultural lands purchased by his
father S. Rajinder Singh were co-parcenary properties as they were purchased
from the sale proceeds of ancestral properties, and that he was entitled to
joint possession thereof;
(ii) for
a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988
made in favour of the third defendant, and gift deed dated 10.9.2003 made in
favour of fourth defendant were void and non-est "qua the
co-parcenary";
(iii) for
a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001
executed by his father S. Rajinder Singh in favour of the first defendant and
sale deed dated 27.9.2003 executed by the alleged power of attorney holder of
S.Rajender Singh in favour of second defendant, in regard to certain agricultural
lands (described in the prayer), are null and void qua the rights of the
"co-parcenary", as they were not for legal necessity or for benefit
of the family; and (iv) for consequential injunctions restraining defendants 1
to 4 from alienating the suit properties.
2.
The appellant claims to have paid a court fee of Rs.19.50 for the
relief of declaration, Rs.117/- for the relief of joint possession, and Rs.42/-
for the relief of permanent injunction, in all Rs.179/-. The learned Civil
Judge heard the appellant-plaintiff on the question of court fee and made an
order dated 27.2.2007 holding that the prayers relating to the sale deeds
amounted to seeking cancellation of the sale deeds and therefore ad valorem
court fee was payable on the sale consideration in respect of the sale deeds.
3.
Feeling aggrieved the appellant filed a revision contending that
he had paid the court fee under section 7(iv)(c) of the Court-fees Act, 1870;
and that the suit was not for cancellation of any sale deed and therefore the
court fee paid by him was adequate and proper. The High Court by the impugned
order dated 19.3.2007 dismissed the revision petition holding that if a decree
is granted as sought by the plaintiff, it would amount to cancellation of the
sale deeds and therefore, the order of the trial court did not call for
interference. The application filed by the appellant for review was dismissed
on 11.2.2008. The application for recalling the order dated 19.3.2007 was
dismissed on 24.4.2008 and further application for recalling the order dated
24.4.2008 was dismissed on 16.5.2008. Feeling aggrieved, the appellant has
filed these appeals by special leave.
4.
The limited question that arises for consideration is what is the
court fee payable in regard to the prayer for a declaration that the sale deeds
were void and not `binding on the co-parcenary', and for the consequential
relief of joint possession and injunction.
5.
Court fee in the State of Punjab is governed by the 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 4 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 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 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) 5 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 6 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.
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.
8.
We accordingly allow these appeals, set aside the orders of the
trial court and the High Court directing payment of court fee on the sale
consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and
27.9.2003 and direct the trial court to calculate the court fee in accordance
with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above,
with reference to the plaint averments.
..........................J. (R V Raveendran)
.........................J.
New Delhi;
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