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2012 DIGILAW 429 (MP)

Ashok Kumar Bafna v. Kewalchand Bafna

2012-04-20

SANJAY YADAV

body2012
ORDER 1. Order dated 17-01-2012 passed by Special Sessions Judge, Harda, in Civil Suit No. 5-A/2011 is being assailed vide this petition under Article 227 of the Constitution of India. By the said order trial Court while allowing the application under Order 7, Rule 11 of the Code of Civil Procedure, 1908, (hereinafter referred to as the CPC)filed by the respondents/defendants has directed the petitioner to pay ad valorem court fees on the value of the sale deed, the validity whereof is being challenged in the suit. 2. The suit as apparent from the plaint brought on record is for declaration, permanent injunction and physical possession of the suit property bearing Khasra No. 140/2 admeasuring 260 sq. ft. whereon two shops admeasuring 20'' x 13'' are constructed. A declaration is also sought that the sale deed dated 22-03-1999 executed by respondent No. 1 be declared null and void and not binding on the petitioner. Respondent No. 2/defendant No. 2 filed an application under Order 7, Rule 11, CPC, whereby he sought dismissal of the suit on the ground that it is barred by limitation as the sale deed dated 22-03-1999 is being questioned after a lapse of 12 years and that the petitioner is liable to pay ad valorem court-fees as the sale deed under challenge was executed by the respondent No. 2 as a power of attorney holder of respondent No.1, who was the owner of the property in question. The trial Court while confining the hearing on application to the extent of payment of ad valorem court fees and on recording a finding that beside the declaration the petitioner has also sought consequential relief of possession of the suit property and that the suit property being not an agricultural land but a property in the urban area within the municipal limit directed the petitioner to pay the ad valorem court fees as per section 7 (iv) (c) read with clause (v) of the Court Fees Act, 1870. 3. The sole issue, therefore, which crops up for consideration is as to whether the trial Court was justified in directing the petitioner to pay the ad valorem court fee. 4. 3. The sole issue, therefore, which crops up for consideration is as to whether the trial Court was justified in directing the petitioner to pay the ad valorem court fee. 4. Before dwelling upon the issue relevant it would be to take note of relief sought for by the petitioner in the suit which is as under: v- ;g ?kksf"kr fd;k tkos fd oknh oknksDr lEifRr Hkw[k.M [kljk uEcj 140@2 ftldk dqy {ks=Qy 260 oxZQqV dk Lokeh gS rFkk izfroknh dz-1 )kjk fu"ikfnr fcdzh i= fnukad 22-3-1999 oknh ij cU/kudkjh ugha gS o mlds izfr 'kwU; gSA c- oknksDr lEifRr dk HkkSfrd vkf/kiR; oknh dks fnyk;k tkosA vkf/kiR; oknh dks izkIr gksus ds ckn mldh lEifRr esa fdlh izdkj ls izfroknh n[kyvankth ugha djsa] ,slh LFkkbZ fu"ks/kkKk tkjh dh tkosA n- izfroknh dz- 01 vkSj 02 ls oknh dks lEiw.kZ U;k;ky; O;; fnyk;k tkosA b- vU; vuqrks"k jk; vnkyr fnykbZ tkosA 5. Thus, beside seeking declaration and permanent injunction and that the sale deed 22-03-1999 be declared null and void, petitioner also seeks the relief of physical possession over the suit property which is consequential to the declaration sought for by the petitioner in the suit. The petitioner admittedly paid the fixed court fees of Rs. 2,000/- for declaration and Rs. 100/-for permanent injunction. The sale deed in question is valued at Rs. 2,50,000/-. 6. Trite it is that the question of court fees has to be determined on the plaint as framed. (Please see Sathappa Chettiar v. Ramanathan Chettiar : AIR 1958 SC 245 and Shamsher Singh v. Rajinder Prashad and others : AIR 1973 SC 2384 .) 7. Section 7 (iv) (c) and 7 (v) of the Court Fees Act, 1870 provides for:- 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 as (c) For a declaratory decree and conse-quential relief:- to obtain a declaratory decree or order, where consequential relief is prayed, (v)................................ 8. 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 as (c) For a declaratory decree and conse-quential relief:- to obtain a declaratory decree or order, where consequential relief is prayed, (v)................................ 8. In the case at hand section 7 (iv) (c) is applicable as possession of the suit property has been sought as a consequential relief as clause (v) of Section 7 gets attracted which stipulates that: (v) For possession of land, houses and gardens ; -In suits for the possession of lands, houses and gardens, according to the value of the subject matter ; and such value shall be deemed to be where the subject-matter is land, and (a) Such land is assessed to a land revenue or land revenue is payable in respect of such land twenty times the land revenue so assessed or so payable; (b) Such land forms a part of land which is assessed to land revenue or in respect of which land revenue is payable twenty times of the land revenue proportionately worked out for such part of land; (c) Such land is not assessed so land revenue -twenty times of the land revenue worked out at the rate of ten rupees peracre. 9. In the case at hand since the land in question is not assessed to the land revenue being not an agricultural land as it is situated within the municipal limit it is the value of the subject-matter would be the basis on which the court fees is leviable. In this context reference can be had of the decision in Suhrid Singh alias Sardool Singh v. Randhir Singh and others: (2010) 12 SCC 112 : ( AIR 2010 SC 2807 ) wherein it is held:- 7. 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. 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 non-binding. 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. 8. 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. 10. In the case at hand since the petitioner beside seeking declaration also seeks a consequential relief of possession, he is liable to pay ad valorem court fees as per the value of the sale deed which is a subject matter of the suit. 11. The matter can be viewed from another angle also. 10. In the case at hand since the petitioner beside seeking declaration also seeks a consequential relief of possession, he is liable to pay ad valorem court fees as per the value of the sale deed which is a subject matter of the suit. 11. The matter can be viewed from another angle also. The suit as preferred by the petitioner is mainly based on the allegation that the suit property is a joint family property, as there is no family partition. It is categorically stated in paragraph 6 of the plaint that the suit property was never partitioned. The sale deed dated 22-03-1999 is admittedly executed by respondent No. 2 on the basis of power of attorney executed by respondent No. 1. The respondent No. 1 being of the family an act done on his behalf is binding on the petitioner, who happens to be the son of respondent No. 1. The sale deed thus is binding on the petitioner unless avoided. In Shamsher Singh v. Rajinder Prashad and others, ( AIR 1973 SC 2384 ) (supra) it is held that in a suit by Hindu son against his father and mortgagee decree-holder for a declaration that mortgage executed by the father in respect of joint family property was null and void for want of legal necessity and consideration, 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 and the plaintiff is liable to pay ad valorem court fee under section 7 (iv) (c). A mortgage decree against the father is a good decree against the 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. 12. In the case in hand, even if the plaint allegations are taken to be true for the purpose of Karta of the family court fees, it is the joint family property which is being sold by the and the petitioner would be liable to pay the ad valorem court fees. In this context please see Ishrat Jahan (Smt.) v. Rajia Begum and others: ILR 2009 MP 3107: ( AIR 2010 MP 36 ). 13. In this context please see Ishrat Jahan (Smt.) v. Rajia Begum and others: ILR 2009 MP 3107: ( AIR 2010 MP 36 ). 13. Having thus considered this Court is of the view that the trial Court was well within its right to direct the petitioner to pay ad valorem court fees as per section 7 (iv) (c) read with clause (v) of the Court Fees Act, 1870. 14. In the result, petition fails and is hereby dismissed. Petition dismissed.