Mahila Laxmi and Others - Petitioners @HASH Hari Singh and Others

R.S. Jha, J. - Shri Sameer Kumar Shrivastava, Advocate for the petitioner.

Shri Ravi Gupta, Advocate for the respondents No. 2 & 3.

Shri R.B.S. Tomar, Govt. Advocate for respondent No. 4/State.

This petition has been filed by the petitioner being aggrieved by the order dated 28.6.2013 passed by the District Judge, Shivpuri in Civil Suit No. 83-A/2012 whereby the petitioner has been directed to pad advalorem court fees. The learned counsel for the petitioner submits that the petitioner has filed a suit seeking for declaring a sale deed dated 15.6.2011 executed by defendant No. 1 in favour of defendants No. 2 and 3 as null and void and not binding upon him. It is submitted that in view of the decision of the Supreme Court rendered in the case of AIR 2010 S.C. 2807 (Sushrid Singh @ Sardool Singh v. Randhir Sisngh and ors.), the petitioner is not required to pay ad-voleram court fees as the petitioner is not a party to the sale deed and has also not sought any relief of possession. It is submitted that the aforesaid aspect has been ignored by the trial Court, hence the impugned order be set aside.

Learned counsel for the respondent, per contra, submits that the petitioner has prayed for declaring the sale deed as null and void and, therefore, he has to pay ad-voleram court fees as per the valuation of the sale deed made by him in the plaint itself.

The controversy involved in the present case is no more res-integra, in view of the decision of Supreme Court rendered in the case of Sushrid Singh @ Sardool Singh v. Randhir Sisngh and ors. (supra), wherein the Supreme Court while taking into consideration the provisions of Section 7 of the Court Fees Act has held as under:-

"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 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) 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.

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 nonest, 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 nonbinding. 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."

From a perusal of aforesaid decision of Supreme Court, it is apparent that the person who is not an executant of a sale deed and sue for a declaration that the deed is null and void and does not bind him or his share and also does not seek relief of possession, is not required to pay ad-valorem court fees.

Similar view has been taken by this Court in the case of Ajay Pratap Singh and others v. Kuldeep Singh and others (2013(2) M.P.H.T. 236.

In the instant case, the petitioner is not executant of the sale deed and has only prayed for declaring it null and void and not binding upon him or his share. The petitioner has also not prayed for any relief of possession in the suit.

In the aforesaid, in view of law laid down by the Supreme Court in the aforesaid decision, the order of the Court below directing the petitioner to pay the advalorem court fees being contrary to the law laid down by the Supreme Court in the aforesaid decision, is hereby quashed and the petition filed by the petitioner is allowed.