Mst. Nand Kaur And Others v. Gurdev Kaur And Others

Harbans Lal, J.:— This revision petition is directed against the order of the learned Subordinate Judge, First Class (A), Mansa, dated August 16, 1973, by which it was held that ad-valorem Court fee under Article 1 Schedule I of the Court Fees Act, (hereinafter called the Act), was payable.

2. The brief facts of the case are that one Bachittar Singh executed a gift deed on July 4, 1968, in favour of Gurdev Kaur, respondent No. 1 and Nihal Kaur, now represented by respondents Nos. 2 to 8, as her legal representatives. The plaintiff filed the suit challenging this gift deed on various grounds contending inter alia that he was suffering from mental infirmity and was quite old, that the donees taking undue advantage of his weakness got the gift deed executed, that he was never a consenting party to the said deed and the same was a paper transaction and thus the same was void and inoperative so far as his rights in the property, in dispute, were concerned. The respondents contested the suit as defendants and raised a preliminary objection regarding Court fee. Consequently, the following issue was framed:

“Whether suit has been valued properly for the purpose of Court fee and Jurisdiction.?”

After filing the suit, the plaintiff has died and the present petitioners were brought on the record as his legal representatives. The learned trial Court decided this issue in favour of the respondents and held that ad valorem Court fee at Rs. 15,000/- equivalent to the market of the property was payable under article 1 Schedule I of the Act. The petitioners were thus directed to make good the deficiency in the Court fee.

3. According to the learned counsel for the petitioners, the averments in the plaint clearly lead to the conclusion that the petitioners' case was that the alleged gift deed was not voidable but void on account of various assertions made in the plaint and, therefore, the suit was for a mere declaration and it was not necessary to get the gift deed itself set aside. It is settled law that for the purpose of determining the question of Court fee the substance of the averment in the plaint has to be gone into and that the mere astuteness in the drafting of the plaint cannot be availed of by the plaintiff for reducing the Court fee. Indisputably, the gift deed, in question, was executed by Bchittar Singh who filed the suit. He being a party to the transaction, by merely making averments in the plaint that the gift deed was vitiated on the ground of one plea or the other was not allowed to avoid the payment of proper Court fee simply by alleging that the gift deed, in question, was void and not voidable. The suit being by the donor himself, he cannot get any relief unless the said gift is set aside or avoided. There is a string of authorities in support of the proposition that in cases where the plaintiff is a party to the transaction or the deed, in dispute, he must pay ad valorem Court fee on the value of the prperty under article 1. Schedule I of the Act. Reference may be made to Jagat Singh v. Avtar Singh . 1970 Cur. L.J 80., Gobind Kaur v. Pritam Singh . 1975 Rev. L.R 553. and Mussammat Zeb-ul-Nisa v. Chaudhri Din Mohammad.3 However, the learned counsel for the petitioners relied upon Civil Revision No. 860 of 1976 (Charanji Lal v. Shrimati Usha Rani)4 decided on November 16, 1976, by the learned Chief Justice Narula, and Raja Shgh v. Chaichoc Singh . A.I.R 1940 Pat. 201.. In Charanji Lal's case (supra), the facts were quite different and the suit was for declaration and consequential relief and the learned Chief Justice came to the conclusion that the suit had been properly valued for the purpose of Court fee under section 7(iv)(c) of the Act and proper Court fee had been paid. In the present case, the Court fee has not been paid and the plaint has not been framed so as to bring the same under section 7(iv)(c) of the Act. Fixed Court fee has been paid for the grant of two reliefs namely for declaration and permanent injunction. Besides, the present suit cannot be treated as one for declaration and consequential relief. The suit is for declaration to get the gift deed set aside and for issuance of a permanent injunction that the possession of the plaintiff may not be disturbed.

4. So far as Raja Singh's case (supra) is concerned, the question regarding Court fee was not under determination in that case. The question for decision was whether article 95 or article 91 of the Limitation Act was applicable to the facts of that case. The conclusion reached was that the donor was old and illiterate and had executed the document under the impression that it was a lease deed and not a deed of gift. It was held that it was not a case of real execution of a gift deed and the document must be deemed to be void and not merely voidable. It was further held that neither article 91 of the Limitation Act, was applicable to that case. The ratio of the above decision is thus of no avail to the case of the petitioner.

5. In view of the above discussion, there is no infirmity in the impugned order. The original plaintiff being a donor and a party to the gift deed had to get the gift deed set aside before he was entitled to any further relief. As such, court fee under article 1 Schedule I of the Act had to be paid and it has been rightly held that the petitioners should pay ad valorem Court fee on the value of the property, that is, Rs. 15,000/-. Thus there is no merit in the revision petition and the same re dismissed with no order as to costs.

6. It is prayed that the requisite Court fee in accordance with the order of the trial Court was not paid as the stay order had been issued and that some time may be allowed to make good deficiency in the Court fee. The petitioners may make good the deficient Court fee within two months.

7. The parties through their counsel are directed to appear in the Court of the learned trial Subordinate judge on July 18, 1977.

Petition dismissed.