Bhagwan Kaur And Others v. Amrik Singh And Others

Hemant Gupta, J.:— The challenge in the present revision petition is to the order passed by the learned trial Court on 15.12.2004 whereby an application filed by the defendants for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter to be referred as “the Code”) on account of insufficient court-fees affixed in a suit for declaration was dismissed.

2. The plaintiffs have filed a suit for declaration to the effect that they are the owners of the suit land and the gift deeds dated 21.5.1977 and 25.5.1977 are illegal null and void and liable to be set aside. The suit has been valued for the purposes of court-fee and jurisdiction at Rs. 200/- though it is alleged that the value of the land in question was not less than Rs. 10 crores. The plaintiffs have claimed themselves to be in joint possession and sought consequential relief of permanent injunction restraining the defendants from alienating the suit land.

3. The defendants moved an application for directing the plaintiffs to pay ad valorem court-fee since the challenge in the suit is to the gift deeds. Learned trial Court dismissed the said application on the ground that the plaintiffs have sought declaration being coparceners in the joint Hindu family property and the challenge to the gift deeds is ancillary and, therefore, the Full Bench judgment of this Court, referred to by learned counsel for the defendants, reported as Niranjan Kaur v. Nirbigan Kaur, 1981 PLJ 423 (FB) was found to be not applicable to the fact of the present case.

4. Learned counsel for the petitioners has relied upon Himanshu… v. Smt. Kailash Rani…, 2004 (4) RCR (Civil) 582 : 2004 (3) PLR 513; Iron Master (India) Pvt. Ltd. v. Punjab National Bank, 2002 (2) RCR (Civil) 404 : 2002 (2) Civil Court Cases 190 (P&H); Ranjit Singh… v. Balkar Singh…, 2001 (1) RCR (Civil) 573 : 2001 (2) Civil Court Cases 45 (P&H); Om Parkash… v. Indrawati…, 2002 (2) PLR 853; Bagvawat v. Mehar Chand, 2001 (4) RCR (Civil) 94 and Jagdish… v. Jagat Pal…, 2003 (2) RCR (Civil) 732 : 2002 PLJ 268 apart from the judgment in Niranjan Kaur's case (supra) to contend that since the challenge is to the gift-deeds in the suit, ad valorem court-fee is required to be affixed.

5. However, I am unable to agree with the argument raised by learned counsel for the petitioners. The argument raised by the learned counsel for the petitioners is misconceived in law. The judgment of Full Bench of this Court in Niranjan Kaur's case (supra) is not being read correctly by the learned counsel for the petitioners. The Full Bench was seized of a case where the plaintiff, who was a party to a document, filed a suit for cancellation of a registered document and also sought possession as a consequential relief thereof. It was found that in order to bring the case under Section 7(iv)(c) of the Court Fees Act, 1870 (hereinafter to be referred as ‘'the Act”), the main and substantive relief should be that of declaration and the consequential relife should be ancillary thereto. If no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) of the Act will not be attracted. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act shall be applicable. The Full Bench found that the suit was virtually for the cancellation of the sale-deeds and the plaintiff cannot obtain possession unless such decree is cancelled by a decree of the Court. Thus, it was a suit for declaration for cancellation of the sale-deed and possession as a consequential relief thereof. Thus, where consequential relief of possession cannot be granted without cancellation of the document, those cases alone will attract ad valorem court-fees. Still further, the said principle would not be applicable in respect of the suit for declaration by a son or a member of the coparcenary under Hindu Law. The Full Bench itself found that such suits would be on a different footing. In such suits, the main relief would be that of declaration and consequential relief of injunction restraining the decree-holder from executing the decree against the son will be just ancillary. The following observations would be relevant to appreciate the controversy raised herein:—

“8. It is the common case of the parties that in case the main relief in the suit is held to be that of cancellation of the sale-deed, then the case is not covered by Section 7(iv)(c) and the only provision applicable is Article 1, Schedule I of the Act. In order to bring the case under Section 7(iv)(c) of the Act, the main and substantive relief should be that of a declaration and the consequential relief should be ancillary thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) will not be attracted. Section 7(iv)(c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No. 31 of 1953, which reads as follows:—

“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”.

9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale-deed, executed by her, in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court….”

“6……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 just ancillary……”

6. In the light of aforesaid judgment, it may be noticed that Bagrawat's case (supra) and Jagdish's case (supra) were the cases where the suit was for a declaration challenging the legality of the sale-deed executed in respect of a joint Hindu family property. The said judgments run counter to the principles laid down by the Full Bench of this Court and, therefore, reliance on the said judgments is not tenable. In Iron Master (India) Limited's case (supra), the bank had filed a suit for recovery. The said decree was sought to be challenged by the plaintiffs on the ground of fraud and misrepresentation. It was rightly held therein that ad valorem court-fees is required to be affixed as the plaintiffs are party to the said suit. In Ranjit Singh's case (supra) and Om Parkash's case (supra), it cannot be found out that any consequential relief was claimed and, therefore, the said judgments would again does not provide any assistance to the petitioners.

7. This Court in Gurjeewan Singh v. Jagar Singh, 1990 Civil Court Cases 240 (Punjab & Haryana) has held that ad valorem court-fee is not required to be affixed where the challenge is to be alienation of joint Hindu family property, whereas in Bhag Singh v. Jarnail Singh, 1990 Civil Court Cases 666 (P&H), it has been held that where the plaintiff is in possession, ad valorem court-fee not required to be affixed.

8. In view of the judgment of Full Bench of this Court as interpreted in the aforesaid judgments, I do not find any patent illegality or material irregularity in the impugned order passed by the learned trial Court which may warrant interference by this Court in exercise of its revisional jurisdiction.

9. Dismissed.

Petition dismissed.