Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors

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

Vs.

Randhir Singh & Ors. ... Respondents

JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted.

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;

2 (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

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.

7

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)

New Delhi; .........................J. March 29, 2010. (R M Lodha)