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Smt. Beena And Others v. Rajinder Kumar And Others
Judgment Summary — Hemant Gupta, J.
Factual and Procedural Background
The defendants filed a civil revision petition challenging an order of the learned trial Court which required the plaintiffs to pay court fee calculated on ten times the land revenue for the agricultural land in dispute. The plaintiffs had filed a suit for a declaratory decree claiming ownership and possession in equal shares of land measuring 17 kanals 12 marlas, and sought a declaration that a sale deed dated 24.6.1999 (executed by defendant No. 6 in favour of defendant Nos. 1–5) was illegal, null and void and the result of fraud. The plaintiffs alleged the land to be ancestral and contended that the sale by defendant No. 6 was without legal necessity and without consideration.
The trial Court had, in an application by the defendant-petitioners, directed the plaintiffs to pay the requisite ad valorem court fee based on the value of the sale deed. The trial Court further found that where documents sought to be avoided concern agricultural land subject to land revenue, the ad valorem court fee is payable not on the full market value of the property but on a value equal to ten times the land revenue.
Legal Issues Presented
- Whether the plaintiffs are required to pay ad valorem court fee calculated on the sale consideration shown in the impugned sale deed (i.e., ad valorem on sale price) or whether the suit is governed by Section 7(iv)(c) of the Court Fees Act, 1870 (with valuation to be determined under Section 7(v) and, as found by the trial Court, possibly ten times the land revenue for agricultural land).
- Whether the precedents (Full Bench and Supreme Court decisions) interpreting Section 7(iv)(c) apply to a suit by a member of a joint Hindu family seeking to set aside or avoid an alienation by a father on grounds such as lack of legal necessity or fraud, and consequently determine the proper mode of valuation for court fee.
- Whether modifications effected by statutory amendments (notably the Punjab Amendment Act, 31 of 1953 and the Haryana amendment vide Act No. 22 of 1974) affect the computation of court fee in the present case and require redetermination by the trial Court.
Arguments of the Parties
Petitioners' Arguments
- Learned counsel for the petitioners argued that because the plaintiffs had challenged the sale deed that purportedly affected joint Hindu family property, the plaintiffs must be treated as parties to that instrument and therefore liable to pay ad valorem court fee under Article I of Schedule I of the Court Fees Act, 1870 (i.e., fee calculated on the sale consideration in the sale deed).
- The petitioners' counsel relied upon a Full Bench decision in Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127 (as cited) in support of the contention that ad valorem court fee under Article I Schedule I was payable.
The opinion does not contain a detailed, point-by-point account of the plaintiffs' legal arguments in the text provided to this Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vishwa Nath v. Smt. Sita Bai Anand, AIR 1952 Punjab 335 (Full Bench) | Held that a suit to set aside a decree (where property was sold in execution and possession given) and seeking recovery of possession falls under Section 7(iv)(c); court fee payable on the value of the relief as fixed and stated by the plaintiff. | Cited to support the proposition that suits which effectively seek to nullify a prior decree and thereby obtain possession are governed by Section 7(iv)(c) and fee is to be assessed on the relief claimed. |
| Akhouri Bikramajit Persad v. Girwar Prasad Narain Singh, AIR 1949 Patna 363 | Held that a suit by a son for possession of property sold in execution of a money decree is a suit under Section 7(iv)(c); absence of explicit declaration does not prevent inference that declaration is sought where possession cannot be given unless sale is set aside. | Used to reinforce that suits which in substance require setting aside prior orders/sales fall under Section 7(iv)(c). |
| Udaynath Mahapatra v. Rahas Pandian, AIR 1951 Orissa 10 | Similar principle — quoted with approval in Vishwa Nath Full Bench — concerning suits that effectively challenge prior sales/executions and require setting aside. | Quoted as part of the chain of authorities establishing the scope of Section 7(iv)(c). |
| Prabhu v. Girdhari, AIR 1965 Punjab 1 (Full Bench) | Considered whether suits seeking declaration that previous decrees are null and void and for fresh partition attract Section 7(iv)(c); held that where plaintiffs were parties to previous suit, Section 7(iv)(c) applies and consequential relief (partition) is incidental to declaratory relief. Also considered the effect of the Second proviso (Punjab Amendment Act 31 of 1953). | Cited for the proposition that when declaratory relief is primary (and consequential relief cannot be granted unless declaration succeeds), Section 7(iv)(c) governs; the Second proviso may render Section 7(v) applicable in certain circumstances. |
| Shamsher Singh v. Rajinder Prashad, (1973) 2 SCC 524 : AIR 1973 SC 2384 | Held that a suit by a son for declaration that a mortgage decree obtained against his vendor was not binding on him, though declaratory in form, was in substance for setting aside a decree or for a declaration with consequential injunction; plaintiff liable to pay ad valorem fee under Section 7(iv)(c). | Relied upon to show that courts have treated such declaratory suits as falling under Section 7(iv)(c) when their substance is to set aside existing decrees that would otherwise remain binding and executable. |
| Rajinder Parshad v. Shamsher Singh, 1967 PLR 445 (Division Bench) | Division Bench judgment (later the appeal was dismissed by the Supreme Court in Shamsher Singh's case). | Mentioned in the historical chain of authority leading to the Supreme Court decision in Shamsher Singh's case. |
| Zeb-UI-Nisa v. Din Mohammad, AIR 1941 Lahore 97 (Full Bench) | Full Bench authority referred to in the context of prior decisions on valuation and applicability of Section 7(iv)(c). | Referred to as part of the doctrinal background relied upon in subsequent Full Bench and Supreme Court decisions. |
| Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127 (Full Bench) | Held that where the plaintiff is a party to the instrument of alienation sought to be cancelled (e.g., on grounds of alleged fraud), the main relief is declaratory and consequential relief (such as injunction) is ancillary; court fee is payable under residuary provisions (Article I Schedule I) rather than Section 7(iv)(c) based on sale price. | The petitioners relied on this authority. The Court noted the Full Bench's reasoning and observed that the judgment stands on a different footing from other authorities; the present Court regarded the Niranjan Kaur judgment as not helpful to the petitioners in the manner they relied upon it (and later distinguished other conflicting lines of authority). |
| Gurjeewan Singh v. Jagar Singh, 1990 PLJ 234 / 1990 (2) RRR 291 | Held that where a plaintiff (member of joint family) challenges an alienation by his father on ground of lack of legal necessity/consideration, the suit is essentially for declaration and possession is consequential; therefore ad valorem fee on sale price did not arise. | Cited to support that a suit under Hindu law challenging a father's alienation may be on a different footing (declaratory main relief with consequential possession) and to justify not treating the suit as requiring ad valorem fee based on sale consideration. |
| Anup Kumar v. Bhagwat, 1972 PLR 156 | Held that a suit by a son challenging alienation by his father of joint Hindu family property and seeking possession jointly with the father falls under Section 7(iv)(c); possession is a consequential relief arising from the declaration sought. | Used to reinforce the line of authorities holding such Hindu-law avoidance suits to be governed by Section 7(iv)(c). |
| Harkishan Lal v. Barkat Ali (cited within Anup Kumar) | Held that a suit by a son for declaration that sale by father of joint family property was not for family necessity and not binding on him falls under Section 7(iv)(c); possession follows as consequential relief. | Quoted in support of the principle that avoidance suits by sons of joint family alienations are covered by Section 7(iv)(c). |
| Vinayakrao v. Mankunwarbai (as referenced in Shamsher Singh) | Referred to in the context that a suit by a son for declaration affecting a father's decree may have consequential reliefs that attract ad valorem fee. | Referenced in the chain of authorities considered by higher courts; noted in the opinion as part of the doctrinal history. |
| Jagdish v. Jagat Pal, 2002 (2) PLJ 268 / 2003 (2) RCR (Civil) 732 | Held that court fee as per Article I Schedule I of the Court Fees Act (i.e., ad valorem per sale consideration in the sale deed) is required. | The Court observed that the conclusions in Jagdish (and Bagrawat) were contrary to the line of authority represented by Prabhu, Shamsher Singh and Niranjan Kaur; therefore the present Court did not follow Jagdish on that point and instead held that Section 7(iv)(c) as quantified under Section 7(v) governs. |
| Bagrawat v. Mehar Chand, 2001 (2) PLJ 204 / 2001 (4) RCR (Civil) 94 | Similarly concluded that ad valorem court fee as per sale consideration is required. | The Court noted that Bagrawat runs counter to the earlier Full Bench/Supreme Court authority and therefore did not follow that approach for present purposes. |
Court's Reasoning and Analysis
The Court began by identifying the statutory mechanism for assessment of court fee in suits where declaratory relief and consequential relief are claimed: Section 7(iv)(c) of the Court Fees Act, 1870 prescribes that the amount of court fee is to be paid on the value of the relief sought in the plaint; the Punjab Amendment (Act 31 of 1953) introduced a proviso that, in suits with reference to any property, valuation shall not be less than the manner provided in clause (v) of Section 7. The Court examined the line of authorities construing Section 7(iv)(c) and the effect of the proviso and later amendments.
The Court reviewed earlier Full Bench and Supreme Court authorities (Vishwa Nath Full Bench; Akhouri Bikramajit Persad; Prabhu Full Bench; and the Supreme Court decision in Shamsher Singh) that establish the principle that where the effective object of a suit is to set aside a previous decree or to seek relief that cannot be given without declaring a prior decree ineffective, such suits fall under Section 7(iv)(c) and the court fee must be assessed on the relief claimed (as quantified under Section 7(v) where applicable).
The Court then considered the Full Bench decision in Niranjan Kaur which ruled that, in cases where the plaintiff is a party to the instrument of alienation sought to be cancelled (for example on grounds of fraud), the main relief is declaratory and consequential relief is ancillary, so that the residuary provisions (Article I Schedule I) would apply for court fee. The Court noted that Niranjan Kaur rests on different factual footing and was not helpful to the petitioners in the manner they relied upon it.
The Court also cited decisions (for example Gurjeewan Singh and Anup Kumar) holding that, in suits by members of a joint Hindu family challenging alienations by the father on grounds of lack of necessity or consideration, the suit is for declaration with consequential possession relief and therefore falls within Section 7(iv)(c). These authorities support the position that ad valorem court fee based on the sale consideration does not automatically arise in such cases.
The Court observed that two judgments of this Court (Jagdish and Bagrawat) had reached conclusions that ad valorem fee per sale consideration was required; however, those conclusions were contrary to the line of authority in Prabhu, Shamsher Singh and Niranjan Kaur. Bound by the earlier Full Bench and Supreme Court decisions, the Court held that court fee in the present type of suit is to be paid under Section 7(iv)(c) as quantified under Section 7(v) of the Act.
Finally, the Court noted a procedural/rectificatory point: the learned trial Court had not taken into account the Haryana amendment (Act No. 22 of 1974) which substituted sub-clause (v) of Section 7; accordingly, the trial Court must redetermine the amount of court fee payable in terms of that amendment.
Holding and Implications
Core Holding: The Court held that the suit is governed by Section 7(iv)(c) of the Court Fees Act, 1870 and that the court fee is to be assessed in accordance with Section 7(v) of the Act (as applicable), rather than being fixed automatically as an ad valorem fee on the sale consideration under Article I Schedule I in the manner urged by the petitioners. The Court further directed that the learned trial Court shall redetermine the amount of court fee payable in light of the Haryana amendment (Act No. 22 of 1974).
Direct Consequence for the Parties: The revision petition was disposed of with the direction that the trial Court must recompute the court fee payable by the plaintiffs taking into account the applicable statutory amendment (Act No. 22 of 1974). The decision alters the basis on which court fee is to be computed in the present proceedings (i.e., under Section 7(iv)(c) and Section 7(v), subject to the Haryana amendment) rather than automatically on the sale consideration per Article I Schedule I.
Broader Implications: The opinion follows and applies established Full Bench and Supreme Court authority concerning the applicability of Section 7(iv)(c) to suits that in substance require setting aside prior decrees or instruments and treats conflicting state-court decisions that applied ad valorem fee on sale consideration as inconsistent with that line of authority. The Court did not purport to lay down any new precedent beyond applying and following the existing authorities; where statutory amendment affects valuation, the trial Court must apply the amended provision.
Order: Civil Revision stands disposed of with direction that the learned trial Court shall redetermine the amount of court fee payable in terms of the Haryana amendment (Act No. 22 of 1974).
Hemant Gupta, J.:— The defendants are in revision petition aggrieved against the order passed by the learned trial Court whereby the plaintiff was required to pay Court fee on the ten times value of the land revenue in respect of the land in dispute.
2. The plaintiff-respondents have filed a suit for declaration claiming that they are owners in possession in equal shares of the land in dispute measuring 17 kanals 12 marlas and that the sale deed dated 24.6.1999 executed by defendant No. 6 in favour of defendant Nos. 1 to 5 is illegal, null and result of fraud etc. The said declaration was sought on the ground that the land in dispute is ancestral and that the same has been sold by defendant No. 6 without any legal necessity and consideration.
3. Learned trial Court vide the impugned order decided the application filed by the defendant-petitioners for directing the plaintiffs to pay requisite ad valorem court fee on the value of the sale deed. The learned trial Court, after examining the respective contentions of the parties, found that where documents sought to be avoided in respect of agricultural land are subject to the land revenue then the ad valorem court fee is payable not on the value of the property but on value which is ten times of the land revenue.
4. Learned counsel for the petitioners has vehemently argued that since the plaintiff has challenged the sale deed allegedly executed of the joint Hindu family property and, therefore, the plaintiff is deemed to be party to the such sale deed. Therefore, the plaintiff is liable to pay ad valorem court fee in terms of provisions of Scheduled I Article I of the Court Fee Act, 1870 Reference was made to a Full Bench judgment of this Court in Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127.
5. Before considering the argument raised by the learned counsel for the petitioners, it may be noticed that under Section 7(iv)(c) of the Court Fees Act, 1870, the amount of court fee is required to be paid on which relief is sought in the plaint i.e when the relief is to obtain a declaratory decree or order and where consequential relief is prayed for. By virtue of Court Fee (Punjab Amendment Act, 31 of 1953), it is contemplated that in such suits, 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 Section 7. The specific court fee is contemplated under sub-section (v), as payable in the suits for the possession of land, houses and gardens. Article I Schedule I contemplates ad valorem court fee for the plaint, written statement, pleadings or counter claim or memorandum of appeal if not otherwise provided for in the Act. Schedule II Article 17 sub-clause (iii) contemplates that the plaint or memo of appeal in the suit to obtain declaratory decree where no consequential relief is prayed shall carry a fixed Court fee of Rs. 19.50 The Court Fee Act, 1870 in its applicability to Haryana has been amended. Sub-clause (v) of Section 7 has been substituted vide Act No. 22 of 1974 whereas as per Schedule Second Article 12 has been amended to provide for a fixed Court fee of Rs. 25/- on a plaint or memorandum of appeal in the suit to obtain declaratory decree where no consequential relief is prayed for.
6. It has been held by a Full Bench of this Court in a judgment reported as Vishwa Nath v. Smt. Sita Bai Anand, AIR 1952 Punjab 335 that valuation for court fee of a suit to set aside a decree, where in execution of such decree property has been sold and possession given and where recovery of possession of the property so sold is sought, falls under Section 7(iv)(c) of the Act and the court fee is payable on the value of the relief as fixed and stated by the plaintiff. It may be noticed that the said judgment was prior to insertion of Second proviso to subsection 7(iv) of the Act. It was held therein to the following effect:
“Shrimati Sita Bai is in possession of the land as the result of an auction held in execution of a decree. This decree was passed by a Court of competent jurisdiction and, therefore, the plaintiff cannot seek possession of the property as long as this decree stands in his way. Although the object of his suit is to obtain possession of the land he cannot do so unless the decree is declared ineffective against him and that being so, it is clear that the plaintiff must of necessity ask for a declaration that the decree is not binding upon him and until this is done, he cannot sue for possession, and in this view of the matter the suit must be held to be a suit under Section 7(iv)(c) of the Court Fees Act.”
7. In Akhouri Bikramajit Persad v. Girwar Prasad Narain Singh, AIR 1949 Patna 363, a suit by a son for the possession of the property sold in execution of money decree against his father was held to be a suit under Section 7(iv)(c) of the Act. In the said suit the plaintiff had not asked for a declaration but it was held that the possession could not be given without setting aside the sale and, therefore, it must be inferred that the plaintiff had also asked for a declaration. Similarly the judgment of Orissa High Court in Udaynath Mahapatra v. Rahas Pandian, AIR 1951 Orissa 10 was also quoted with approval in the above said Full Bench judgment of this Court.
8. Two questions were referred to the Full Bench for decision in Prabhu v. Girdhari, AIR 1965 Punjab 1. Question No. 2 was whether in a suit where the plaintiff seeks a declaration that the previous decrees are null and void and be set aside and further prayer was for fresh partition of the property, whether such suit is governed by Section 7(iv)(c) of the Court Fees Act. While considering the said question, it was held that since plaintiffs were parties to the previous suit, it was necessary for them to get the previous decrees set aside before they claim fresh partition. Therefore, the provisions of Section 7(iv)(c) are attracted. Relief of partition was found to be consequential relief. It was held that consequential relief is incidental to the main declaratory relief and the same cannot be granted if the latter is refused. Therefore, it was concluded that even if, the plaintiff has sought relief of fresh partition, the case would still be governed by the provisions of Section 7(iv)(c) of the Act.
9. The other question framed was with respect to the effect of Second proviso inserted by Punjab Amendment Act 31 of 1953.
10. It was held that where the property which was the subject-matter of the previous decree, the expression “with reference to any property” as used in the second proviso would mean the property which was the subject-matter of the previous decree. The plaintiffs were made liable to pay court fee in terms of the provisions of Section 7(v) of the Act. Shamsher Singh v. Rajinder Prashad, (1973) 2 SCC 524 : AIR 1973 SC 2384 was a case where a suit by a Hindu son against his father and the mortgagee decree holder was for a declaration that the mortgage executed by the father in respect of the joint Hindu family property was null and void for want of legal necessity and consideration. It was found that though couched in a declaratory form, is in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. It was held that the plaintiff is liable to pay ad valorem court fee under Section 7(iv)(c) of the Act. It has been held by Hon'ble Supreme Court that in a suit by the son for declaration that the mortgage decree obtained against his vendor was not binding on him, it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under Section 7(iv)(c) of the Act. The decree against the father is a good decree against a son and unless the decree is set aside it would remain executable against the son and it was essential for the son to ask for setting aside the decree.
11. Hon'ble Supreme Court in Shamsher Singh's case (supra) has, in fact, dismissed the appeal arising out of a Division Bench judgment of this Court in Rajinder Parshad v. Shamsher Singh, 1967 PLR 445. The judgment of Division Bench is based upon judgment of Full Bench of this Court in Parbhu's case (supra) as well as the Full Bench judgment of Lahore High Court in Zeb-UI-Nisa v. Din Mohammad, AIR 1941 Lahore 97.
12. It may be noticed that the Full Bench in Niranjan Kaur v. Nirbigan Kaur, 1982 PLR 127, has referred to above said Full Bench judgment and the judgments of the Hon'ble Supreme Court and found not applicable in the facts of the present case on the ground that the case under consideration was a case where the plaintiff was a party to the instrument of alienation and the same was sought to be avoided on the allegation of fraud. It was held to the following effect:
“Thus, what the Supreme Court has held in Shamsher Singh's case (supra) is that in the suit by the plaintiff for the declaration that the decree obtained by the mortgagee against their father was not binding on them, they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgage property as he was entitled to do. This case is hardly helpful to the case of the plaintiff petitioner as it is clearly distinguishable from the facts of the present case for the simple reason that herein the plaintiff petitioner is a party to the document, which she is required to get cancelled because of the alleged fraud etc. A suit for declaration by a son or a member of a coparcenary under the Hindu Law will thus be on a different footing. In such a suit, the main relief will be that of a declaration and the consequential relief of injunction restraining the decree holder from executing the decree against the sons etc will be jusancillary. This is further clear when reference has been made in Shamsher Singh's case (supra) to Vinayakrao v. Mankunwarbai, wherein it was held that in a suit by the son for a declaration that the decree against his father does not effect his interests in the family property, consequential relief was involved and ad valorem court fee was necessary.”
13. After observing so, the Full Bench has found that since the sale is sought to be avoided on the ground of fraud and the plaintiff being party to such instrument, the court fee payable would be under residuary provisions” contained in Article I Schedule I of the Act. Therefore, the judgment of the Full Bench in Niranjan Kaur's case is not helpful to the petitioners which stands on different footing.
14. It may be noticed that in Gurjeewan Singh v. Jagar Singh, 1990 (2) RRR 291 : 1990 PLJ 234 it has been held that where the challenge is under the Hindu Law to the alienation made by his father on the ground the same being without legal necessity and without consideration, the suit for declaration and the possession is by way of consequential relief, wherein it was held to the following effect:
“The present suit has been filed by the plaintiff under the Hindu Law challenging the alienation made by his father on the ground of being without legal necessity and without consideration. The plaintiff being the member of the joint family has a right to have the transactions declared null and void,’ if they are not justified. That being so, the question of paying ad volarem court fee on the sale price did not arise. For all intents and purposes, the suit is for declaration and the possession is by way of consequential relief.”
15. Prior to the said judgment, this Court in Anup Kumar… v. Bhagwat Etc.…, 1972 PLR 156 has held that in a suit challenging the alienation of joint Hindu family property effected by the father of the plaintiff as not binding on him, with a prayer for grant of decree for possession of the property in dispute jointly with the father falls under Section 7(iv)(c) of the Act. It was held that the remedy of possession is essentially a consequential relief following from and arising of the declaration sought by the plaintiff. It was held to the following effect.
“Section 7(iv)(c) of the Act is applicable to a case where a declaration is sought and as a consequential relief some other relief is also prayed for. The case directly on the point, referred to by the learned counsel for the petitioner before me, is Harkishan Lal v. Barkat Ali. That was an exactly similar case in which it was held that a suit by a son for a declaration that the sale of joint Hindu family property effected by his father had not been made for family necessity and was not binding on him, and for joint possession of the property sold along with his father, falls under Section 7(iv)(c) in as much as an alienation by the father of a Hindu joint family is not void but is only avoidable at the instance of his sons, for the alienation may be binding on the sons if it was made for necessity or for the benefit of the joint Hindu family or for any other reason by which under Hindu Law such an alienation may bind the sons. It is, therefore, necessary for the plaintiff to get rid of the voidable document by having the Court declare that in the circumstances of the case it should be avoided at the plaintiffs request. The possession which he then claims flows from and is a necessary consequence of the relief claimed, namely, that the document does not stand in the way of the plaintiff. The remedy of possession, therefore, is essentially a consequential relief flowing from and arising out of the declaration sought by the plaintiff.”
16. Attention was drawn to two judgments of this Court reported as Jagdish… v. Jagat Pal…, 2003 (2) RCR (Civil) 732 : 2002 (2) PLJ 268 and Bagrawat v. Mehar Chand, 2001 (4) RCR (Civil) 94 : 2001 (2) PLJ 204 to contend that ad valorem (court fee) as per sale consideration in sale deed is required to be affixed. The conclusions drawn in the said judgments that court fee in terms of Article I of Schedule I of the Court Fees Act is payable or as per sale consideration in the sale deed runs counter to the judgment in Prabhu's, Shamsher Singh's and Niranjan Kaur's case (supra) Therefore, bound by the said judgments, it is held that the Court fee is required to be paid in terms of Section 7(iv)(c) of the Act as quantified under Section 7(v) of the Act.
17. However, it appears that the learned Trial Court has not taken into consideration the amendment made in the State of Haryana vide Act No. 22 of 1974, therefore, the learned Trial Court shall redetermine the amount of court fee payable in terms thereof.
18. Civil Revision stands disposed of, accordingly
Order accordingly.
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