Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 511 (PNJ)

Jasmair v. Ram Bhagat

2009-03-18

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The controversy in the petition before this court is with regard to the validity or otherwise of the impugned order dated 12.1.2008 vide which the learned Trial Court, while allowing a plea filed by the respondents-defendants under Order 7 Rule 11 C.P.C. directed the plaintiff- petitioner to pay the ad-valorem court fees in the suit. 2. The learned Trial Court, in recording the view obtained, relied upon the Full Bench Judgment of this Court in Niranjan Kaur v. Nirbigan Kaur, 1981 PLJ 423 (FB). 3. I have heard Mr. Rajneesh Gupta, learned counsel appearing on behalf of the petitioner and Mr. Rajinder Goyal, learned counsel appearing on behalf of the respondents and carefully gone through the record. 4. In order to enable the appropriate appreciation of the controversy, it may be noticed, at the very outset, that the plaintiff-petitioner has called into question the validity of the impugned sale deed dated 14.5.2004 which had been executed by his father and brother in respect of the co-parcenary property. The allegation of the plaintiff-petitioner is that the impugned sale deed is without consideration and legal necessity. It is, thus, evident that the challenge herein is by a co-parcener to the impugned act of the Karta and the averment, in the context, is that the sale was of co-parcenary/joint hindu family property which could not have been effectuated by the Karta without legal necessity and consideration. 5. Insofar as the reliance placed by the learned Trial Court upon Niranjan Kaurs case (supra) is concerned, it is thoroughly misconceived. The facts in that case were entirely different. In that case, the plaintiff had filed a suit for possession of agricultural land on the allegation that she was owner thereof. She could not manage that property on account of her old age. She had appointed her nephew (father of defendant therein) as her General Power of Attorney. On that account, the attorney was entitled to manage, sell or mortgage that property. For effectuation of that purpose, the attorney used to obtain her signatures on various documents. On account of that fiduciary relationship, the attorney obtained signatures of the plaintiff on certain papers on a representation that those were to be submitted to the Income Tax authorities. On that account, the attorney was entitled to manage, sell or mortgage that property. For effectuation of that purpose, the attorney used to obtain her signatures on various documents. On account of that fiduciary relationship, the attorney obtained signatures of the plaintiff on certain papers on a representation that those were to be submitted to the Income Tax authorities. However, those documents bearing the signatures of the plaintiff were converted into sale deeds which the attorney had executed in favour of self and his own minor daughter (who was also a defendant therein). The plaintiff therein filed a suit to obtain invalidation of those sale deeds. It was under those circumstances the Full Bench of this Court held that if a plaintiff, who is a party to a document under challenge seeks cancellation thereof and there is also a plea for the possession of that property, ad- valorem court fee is payable in the suit. The facts of that case were, thus, entirely different from the present case in which the plaintiff-petitioner is not a party to the impugned document. 6. In similar eventualities, this Court has repeatedly held that ad valorem court is not payable. Reference, in that context, may be made with advantage to Ravinder Kumar v. Narinder Kumar and others, 2007(2) RCR(Civil) 1 (P&H) and Sham Lal v. Sudesh Kumar and another, 2007(5) RCR(Civil) 658 (P&H), Smt. Rekha v. Suresh Kumar and others, 2008(4) RCR(Civil) 430 (P&H) and Ravinder Kumar v. Narinder Kumar, 2007(2) RCR(Civil) 1. 7. In the face thereof, the reliance placed by the learned counsel for the defendants-respondents upon Teja Singh v. Smt. Amar Kaur and others, 2008(1) Civil Court Cases 531 (P&H), Shakuntla v. Rohtas Singh, 2008(4) RCR(Civil) 80 (P&H), Anil Rishi v. Gurbaksh Singh, 1998(3) RCR(Civil) 135 : 1998(2) PLR 417, Himanshu v. Smt. Kailash Rani, 2004(4) RCR(Civil) 582 : 2004 AIR (Punjab) 207 and Bhupesh Kumar Sharma and others v. Manohar Kumari and others, 2007(2) RCR(Civil) 784 is inappropriate. 8. In Teja Singhs case (supra), the plaintiff therein had filed a suit for declaration "challenging the power of attorney allegedly executed in favour of defendant no. 1 on 16.10.1996; Gift deed dated 10.1.2005 executed by defendant no. 1 in favour of defendant nos. 2 & 3 and further mortgage of the land by defendant nos. 2 and 3 with defendant No. 4." 9. 1 on 16.10.1996; Gift deed dated 10.1.2005 executed by defendant no. 1 in favour of defendant nos. 2 & 3 and further mortgage of the land by defendant nos. 2 and 3 with defendant No. 4." 9. In Shakuntlas case (supra), the plaintiff therein had challenged the sale deed on a plea that it had been got "executed by making somebody else to appear on her behalf." 10. In Anil Rishis case (supra), the plaintiff therein had filed a suit for declaration that "the registered sale deed dated 26.3.1991 was forged, fabricated and fake document and is not enforceable in respect of the property in question." 11. In Himanshus case (supra), the challenge to the impugned sale deed was based upon an allegation of fraud. 12. In Bhupesh Kumars case (supra), the challenge to the validity of the impugned sale deed was on an averment that those (sales) "are in excess to the shares of the defendants.". 13. Thus, the facts involved in those cases were entirely different from the facts in the case before this Court. In all those cases, the challenge had not been posed by a coparcener nor was the challenge in respect of the coparcenary property. 14. In the light of the foregoing discussion, the petition shall stand allowed. The impugned order dated 12.1.2008 shall stand set aside. The plaintiff-petitioner shall not be liable to pay the ad-valorem court fee.