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2014 DIGILAW 897 (PNJ)

Om Parkash v. Bimla Devi

2014-05-22

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- Invoking supervisory powers of this Court under Article 227 of the Constitution of India by way of this civil revision petition, order dated 1.9.2012 is sought to be set aside by the petitioner claiming herein that he is not liable to affix advalorem Court fee on the market value of the suit property as has been ordered by the lower Court vide the impugned order. 2. Smt. Kapuri Devi, mother of the petitioner Om Parkash, had filed a suit for declaration to the effect that she was owner in possession of land measuring 6 Kanals 10 Marlas (as explained by her in the plaint). She has sought further declaration that gift-deed of 27.8.2008 executed by her in favour of defendant No.1 as also mutation No.762 sanctioned on its basis were illegal, null and void and being result of fraud, were to be set aside. She had sought even further declaration to the effect that yet another gift-deed dated 29.3.2010 executed by defendant No.1 in favour of defendants No.2 and 3 regarding part of the land and mutation, if any, sanctioned on the basis of said gift-deed, were also illegal, null and void and were not legally binding on her. She had further sought consequential relief of permanent injunction against the defendants from further alienating the suit land as also against interference in actual physical possession of the plaintiff. 3. Defendants No.2 and 3 had preferred an application under Order VII Rule 11 CPC for rejection of the plaint claiming that since advalorem Court fee on the market value of the suit property had not been affixed by the plaintiff, the plaint was liable to be rejected. This application was contested by the plaintiff claiming that since gift-deed of 27.8.2008 executed by her had been obtained by playing fraud and misrepresentation, no advalorem Court fee was leviable. Vide impugned order, finding it to be a case of affixation of more Court fee, the lower Court had called the plaintiff to pay advalorem Court fee on the market value of the suit land. For compliance of this order, time was given to the plaintiff. 4. Whereas the petitioner claims that since possession continues to be with the plaintiff and only relief of declaration has been sought, it is not a case of affixation of advalorem Court fee. For compliance of this order, time was given to the plaintiff. 4. Whereas the petitioner claims that since possession continues to be with the plaintiff and only relief of declaration has been sought, it is not a case of affixation of advalorem Court fee. Contention of counsel for the contesting respondents on the other hand is that even if relief of possession has not been sought but since in the suit in addition to relief of declaration, even relief of consequential relief of cancellation of gift deeds has been sought thus advalorem Court fee is leviable. 5. Hearing to counsel for the parties while perusing the paperbook has been provided. 6. There are two gift deeds which are under challenge in the suit pending adjudication before the lower Court. One gift deed is of 27.8.2008 and was executed by the plaintiff herself in favour of defendant No.1 whereas another is of 29.3.2010 executed by defendant No.1 in favour of defendants No.2 and 3. It would be appropriate to take stock of the averments made by the suitor regarding relief sought in the plaint. To be specific, in addition to seek declaration to the effect that plaintiff is owner in possession of the land in dispute, further declaration has been sought that both the gift deeds as also mutation No.762 sanctioned pursuant to the first gift deed of 27.8.2008 as also mutation, if any, sanctioned pursuant to second gift deed of 29.3.2010 were illegal, null and void and not legally binding upon the rights of the plaintiff. Consequential relief of permanent injunction qua further alienations as also regarding interference in possession of the plaintiff has also been sought. 7. Plaintiff is no more, so is about defendant No.2. Both are now represented by their legal heirs, who are continuing in the proceedings before the lower Court. 8. Counsel for the petitioner claims that since the plaintiff continues to be in possession of the property, she has not sought relief of possession. The documents under challenge are gift deeds and thus are without any sale consideration. It is thus urged that no advalorem Court fee even otherwise is not payable. 9. 8. Counsel for the petitioner claims that since the plaintiff continues to be in possession of the property, she has not sought relief of possession. The documents under challenge are gift deeds and thus are without any sale consideration. It is thus urged that no advalorem Court fee even otherwise is not payable. 9. Counsel for the contesting respondents has urged that irrespective of nature of the document i.e. as to whether it is a sale-deed or giftdeed or a Court decree, once with relief of declaration of the document being illegal, null and void, some consequential relief has been sought, relief of cancellation of such document is inherently involved, which attracts affixation of advalorem Court fee. Counsel for the contesting respondents has sought support from judgment of a coordinate Bench of this Court titled Gobind Kaur Versus Pritam Singh, The Punjab Law Reporter, Vol.LXXVII-1975 Page 6 wherein considering interplay of provisions of Section 7 (iv)(c) & 7(v) & Schedule I Article I of the Court Fees Act, 1870 (hereinafter referred to as the Act), it was held that where suit for declaration that the impugned gift deed executed by the plaintiff in favour of the the defendant was not operative qua the rights of the plaintiff as owner of the suit property and further relief for possession of the suit property was sought, advalorem Court fee was payable on the plaint. Further reliance has been placed on Jagat Singh Versus Avtar Singh and others, 1970 Crl.Law Journal, 80, yet another authority of a coordinate Bench of this Court where possession was sought without getting the gift-deed cancelled and it was held that the plaintiff had to get the alleged gift deed, to which he himself was a party, cancelled before he could seek possession of the land, finding that the case was covered under Article I Schedule I of the Act. The plaintiff was ordered to pay advalorem Court fee on the value of the property involved. 10. Since in both these judgments, interalia, possession was sought which aspect is not in dispute in the case in hand, no advantage flows from these authorities for the respondent. The plaintiff was ordered to pay advalorem Court fee on the value of the property involved. 10. Since in both these judgments, interalia, possession was sought which aspect is not in dispute in the case in hand, no advantage flows from these authorities for the respondent. Reference has also been made to Niranjan Kaur Versus Nirbigan Kaur, AIR 1981 (P&H) 368 , where suit for cancellation of a document and possession of land had been filed by executant of the said document and it was held therein that advalorem Court fee is payable under Schedule I Article I of the Act and not under Section 7(iv)(c) of the Act. 11. Counsel for the respondents has placed reliance on yet another authority again of a coordinate Bench of this Court reported as Vol.LXXIX-1977 PLR 500 titled Mst. Nand Kaur and others Versus Gurdev Kaur and others, wherein it was categorically held that the plaintiff challenging the gift-deed executed by him was vitiated on the ground of fraud etc. is required to pay advalorem Court fee on the property under Article I, Schedule I of the Act. Following observations made in para 3 of the judgment are noteworthy:- “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.” 12. Some of the judgments though have been cited by learned counsel for the respondents, in fact support the cause of the petitioner. These are as under:- 1. Chhota Singh Versus Jit Singh and others reported in AIR 1975 Punjab and Haryana 316(1) In this case suit was for declaration that gift-deed was obtained by fraud and cancellation thereof was sought pleading that relief of cancellation was only consequential. It was mentioned that provisions of Section 7(iv) (c) of the Act were applicable and relief sought in the plaint was not excisable to ad valorem Court fee. It was mentioned that provisions of Section 7(iv) (c) of the Act were applicable and relief sought in the plaint was not excisable to ad valorem Court fee. It was held in this judgment as under:- “The plaintiff would first have to prove that the gift-deed was got executed from him by fraud. If he is able to prove the allegation made by him in that behalf, he would be entitled to the declaration claimed by him, and in that event he would also be entitled to the consequential relief to have the gift-deed cancelled. I, therefore, hold that the case is covered by Section (iv)(c) of the Court-fees Act, and the plaint of the suit is properly valued. 2. Kamla Prasad and another Versus Jagarnath Prasad reported in AIR 1931 Patna, 78. It was held in this authority that substance of the plaint and not merely the exact reliefs asked for has to be looked into, in order to determine the Court fee payable on the plaint. It was further held that if in substance the plaintiff had asked for cancellation of a gift-deed with further declaration with consequential relief and the case clearly falls under Section 7(iv) (c) of the Act and advalorem Court fee which was not payable. 13. Examining the law detailed and discussed in these authorities cited by the counsel for the respondents, the authority viz. Surjit Singh Versus Karamjit Kaur, [2012(3) Law Herald (P&H) 2271] : 2012(3) R.C.R.(Civil) 364, cited by the petitioner is not only the latest but also is based on authority titled Suhrid Singh @ Sardool Singh Versus Randhir Singh and others, [2010(2) Law Herald (SC) 1371 : 2010(2) Law Herald (P&H) 1356 (SC)] : 2010(2) RCR (Civil) 564 discussing principles of law laid down therein. It was held in this authority as under:- “6. If the principle laid down in the above said judgment is followed in the present case, the plaintiff – petitioner, who is executant of the deed has sought declaration that the transfer deed dated February 23, 2011 in favour of the defendant – respondents is null and void. It was held in this authority as under:- “6. If the principle laid down in the above said judgment is followed in the present case, the plaintiff – petitioner, who is executant of the deed has sought declaration that the transfer deed dated February 23, 2011 in favour of the defendant – respondents is null and void. Since the plaintiff himself is executant of the deed and he seeks cancellation of the deed, he is no doubt required to pay ad valorem Court fee for the consideration paid on the sale deed but in the present case no sale consideration has been paid by the defendants. Even the possession has also not been claimed by the plaintiff-respondent.” 14. Keeping in view the totality of these facts and circumstances, the impugned order does not stand and the same is set aside since the plaintiff is not required to pay advalorem Court fee and has already affixed Court fee on the two reliefs viz. declaration and consequential relief of permanent injunction. The appeal is, consequently, accepted. The parties through their counsel are directed to appear before the lower Court on 7.7.2014. 15. Sequelly, stay granted vide order 5.10.2012 is vacated. Since the matter has already been considerably delayed, the lower Court would make serious effort to decide the suit within a period of one year. ---------0.B.S.0------------