Baldev Kaur vs Hardeep Kaur and Others

Dr. Bharat Bhushan Parsoon, J.

Order dated 15.10.2013 passed by Civil Judge(Jr. Division), Nabha whereby the plaintiff in the suit had been called upon to pay ad valorem Court fee on the consideration of sale deed dated 11.5.2010, is under challenge in this revision petition at the instance of the petitioner-plaintiff. It is claimed by the petitioner-plaintiff that the lower Court was in error on facts as also on law. It is averred that when the petitioner-plaintiff is continuing in possession and has no where sought relief of possession, ignoring his pleadings, lower Court has stated otherwise. It is then averred that since it is a case of joint ownership, main relief sought is avoidance of the sale deed.

Claim of the respondents-defendants, on the other hand, is that the impugned order is correct on facts as also in law and since cancellation of the sale deed had been sought, ad valorem Court fee is leviable.

Counsel for the parties have been heard while going through the grounds of revision petition and the impugned order while appreciating the attending facts as also the circumstances.

Before embarking upon the matter in controversy, it would be appropriate to take stock of the facts about which there is no dispute.

Petitioner-plaintiff and respondent No. 1 are real sisters and the suit land was owned and possessed by their mother Smt. Hamir Kaur who had allegedly executed a Will on 10.3.2003 in their favour bequeathing the property in equal shares. Only son of Smt. Hamir Kaur had predeceased her in 1978. His wife Smt. Surjit Kaur was given appointment on compassionate grounds by his employer as he had died in harness. Smt. Hamir Kaur had expired on 7.1.2009. Respondent-defendant No. 1 had set up another Will of 1.9.2006 acting upon which, respondent-defendant No. 1 had got entire land of Smt. Hamir Kaur entered in her name vide mutation dated 30.4.2010. It was thereafter that the respondent-defendant No. 1 executed the alleged sale deed in favour of defendant No. 2 which now is sought to be avoided in the suit which is pending adjudication before the lower Court.

Further facts about which there is no dispute are as under:--

"(i) Petitioner-plaintiff is not signatory to the impugned sale deed of 11.5.2010;

(ii) Latest Will of 15.5.2007 has been set up by the petitioner-plaintiff whereas mutation of entire property of Smt. Hamir Kaur her mother was sanctioned on 30.4.2010 on the basis of another Will of 1.9.2006; and,

(iii) Relief of possession has not been claimed by the plaintiff as averments in the suit are that she continues to be in joint possession of the land."

Since the property in dispute comes from Smt. Hamir Kaur mother of the parties, it is a family dispute; competing Wills are being litigated. Even by natural succession both the sisters being daughters of Smt. Hamir Kaur inherit in equal share, their brother having predeceased their mother Smt. Hamir Kaur. Counsel for the petitioner-plaintiff has relied on Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, wherein it was held as under:--

"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."

It is not disputed that sale is of joint family property. Every member in joint family property has community of interest and unity of possession in the land held by such joint family. Petitioner-plaintiff thus even otherwise cannot be taken- to be out of possession.

Even when relief of joint possession has been sought, it is consequential to the main relief of avoidance of the sale deed and thus germinates and flows from the same. By no means such relief of consequent joint possession pursuant to avoidance of the sale deed by the petitioner-plaintiff is independent, set apart or different from the main relief.

Independent relief can only be that which can stand alone even if the main relief sought is not granted to the plaintiff. Applying this test, if the main relief of avoidance of sale deed sought for by the petitioner is not granted to him, relief of joint possession has also to be declined because it flows from the main relief itself and had no separate existence. In short, relief of joint possession has no separate and independent existence in absence of the relief of avoidance of sale deed, which is the main relief sought by the petitioner-plaintiff. In almost similar circumstances in Kulwant Kaur and Ors Vs. Joginder Kaur and Others, , a coordinate Bench of this Court while referring to the case law on this aspect had held that in a suit for declaration claiming relief of joint possession as a consequence, where plaintiff is non-executant of impugned sale deeds, the case is covered under Section 7(iv)(c) of the Act and thus he is not required to affix ad-valorem Court fee as per consideration of the sale deeds. Relevant portion of this authority is reproduced as below:--

"In the present case, petitioners-plaintiffs alongwith other co-sharers are claiming relief of declaration of joint ownership on the basis of a Will allegedly executed by deceased Hazara Singh, whose inheritance is in dispute. They have also challenged subsequent mutations sanctioned on the basis of inheritance ignoring the Will and subsequent two sale deeds executed by defendant No. 6 and have claimed relief only for joint possession. They are not the parties to the sale deeds, which are sought to be cancelled. Hence, even if it is taken that they are seeking relief of possession and, however, as they are non-executant of the impugned sale deeds, their case would be covered under Section 7(iv)(c) of the Act and the Court fee would be computed according to the amount by which the relief sought is valued in the plaint and such valuation shall not be less than the value of the property calculated in the manner provided by Clause (v) of Section 7.

In view of these facts, the present petitioners-plaintiffs are not to affix the ad valorem Court fee, as per consideration of the impugned sale deeds."

In the similar tone in Harmail Singh Vs. Gurmail Singh and Others, , a Coordinate Bench of this Court had held as under:--

"In the present case also, the main and substantial relief sought for by the plaintiff is declaration and the consequential relief is ancillary one. The petitioner being not party to the sale has claimed it to be illegal and not binding qua his rights. Section 7(iv) of the Act, clearly contemplates the suits to obtain declaratory decree where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which value the relief is sought.

As a result of aforesaid discussions, the facts and circumstances of the present case, are covered by Section 7(iv) of the Act, as such no ad-valorem Court fee is required. I find support to my this view from the judgments delivered in case Krishna Devi and another v. Jaswant Singh, 2006 (4) R.C.R. (Civil) 563 ; Ravinder Kumar Vs. Narinder Kumar and Others, ; and Teja Singh Vs. Smt. Amar Kaur and Others, ."

Very recently in Civil Revision No. 2489 of 2012 titled Rambai Vs. Kapoori, decided on 4.8.2014 by this Court, this aspect has been discussed threadbare and it has been held that where consequent relief is flowing only as a sequel to the main relief, ad-valorem Court fee is not payable. In this judgment even if the plaintiff was signatory to the sale deed but she had continued to be in possession and no consideration had allegedly passed hands from the alleged vendee (who was her close kin) to the vendor. It was alleged that she had been duped and defrauded by her close kin. It was held that it was not a case of payment of ad-valorem Court fee. In this authority it was held as under:--

"When neither the petitioner owns execution of the sale deed nor any consideration had been paid to her for execution of the sale deed nor the possession has been disturbed, the only change which has come is the execution of a document which is disputed in its authorship as also in consideration backing the document. Only relief sought in the suit is for declaration that the sale deed is illegal, null and void. Though relief of permanent injunction has also been claimed but it emanates from the cancellation itself and does not become any substantive relief by its own nature."

In view of the discussion made as earlier the impugned order does not stand legal scrutiny. Thus allowing this petition, the impugned order is set aside. Sequelly, the application of the respondent-defendant filed before the lower Court under Order VII Rule 11 CPC calling upon the petitioner-plaintiff to affix advalorem Court fee is dismissed. Parties to appear before the lower Court on 7.10.2014. Since the suit is qua a family dispute, early decision would itself be an effective remedy. The lower Court is thus directed to decide the suit within six months from the date of receipt of copy of this order.