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2017 DIGILAW 79 (DEL)

Tabassum Ara v. Mohd. Kamil

2017-01-09

JAYANT NATH

body2017
JUDGMENT : Jayant Nath, J. 1. This matter has been listed in Court today i.e. on 30.01.2017 on directions issued by the Court. It transpires that an order was passed on 9.1.2017. However, before it could be corrected and signed, the staff of this Court has inadvertently released the uncorrected and unsigned copy of the order on the Court's website. Accordingly, the order may be taken off from the website. The concerned Department of the Registry may take appropriate steps. The present order is now being signed on today's date i.e. 30.01.2017. 2. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 09.04.2015 by which her application under Order 7, Rule 11 CPC was dismissed. 3. Respondent Nos.1 and 2 had filed the present suit seeking a decree of declaration declaring the relinquishment deed dated 20.07.2007 executed by respondent Nos.4 to 7 in favour of respondent No.3 Sh. Nazar Mohd. as null and void and also a decree of declaration declaring the sale deed dated 02.06.2012 executed by respondent No.3 in favour of the petitioner as null and void, void-ab initio, invalid, false, cancelled, revoked and unlawful. 4. The case of the plaintiffs/respondent Nos.1 and 2 is that they purchased the first floor of the property from respondent Nos.4 to 7 and Smt. Nasima vide sale deed dated 30.03.2005 and are in possession of the property. Thereafter, they state that a sale deed dated 02.06.2012 was executed by respondent No.3 in favour of the petitioner for the same property. It is stated that respondent Nos.4 to 7 had no right to execute any relinquishment deed in favour of respondent No.3 inasmuch as they had sold the property vide sale deed 30.03.2005 in favour of respondent Nos.1 and 2. 5. The grievance of the petitioner is that the sale deed dated 02.06.2012 is valued at Rs. 44,55,000/- and hence it is stated that the valuation of the present suit would be the same. 6. The trial court by impugned order noted that respondent Nos.1 and 2/plaintiffs are in possession of the suit property. It is further noted that the said plaintiffs are not the executants of the sale deed and are merely seeking a declaration of the same to be null and void and valuation of the suit cannot be held to be at Rs. 44,55,000/-. 7. It is further noted that the said plaintiffs are not the executants of the sale deed and are merely seeking a declaration of the same to be null and void and valuation of the suit cannot be held to be at Rs. 44,55,000/-. 7. I have heard the learned counsel for the parties. 8. The learned counsel for the petitioner has relied upon the judgment of this court in the case of S. Manjinder Singh v. Krishna Bhat & ORs. 606 (2014) DLT 58. 9. Entry 17 (iii) of the Second Schedule of the Court Fee Act as applicable to Delhi requires payment of court fee of Rs. 49.50 on plaints in a suit to obtain a declaratory decree where no consequential relief is prayed for. However, where the suit is for declaration and consequential relief Section 7(iv) (c) of the said Court Fees Act would apply and the court fee would be according to the amount at which the relief sought is valued in the plaint. 10. In the present case, respondent Nos.1 and 2 have sought decree of declaration and permanent injunction. They cannot seek cancellation of the relinquishment deed executed by respondent Nos.4 to 7 or cancellation of sale deed dated 02.06.2012. The Supreme Court in Suhrid Singh @ Sardool Singh v. Randhir Singh & Anr., 2010 (12) SCC 112 , held as follows: "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 non-est, 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. '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. 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. 49.50 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." 11. Hence, the legal position is that where the executant of a sale deed seeks to avoid a sale deed, he has to sue for cancellation of the deed. However, if a non-executant seeks to avoid the sale, he has to sue for declaration that the deed executed is invalid and void and he is not bound by it. 12. In the present case, respondent No.1 and 2/plaintiffs are already in possession of the suit property. They have only sought a decree of declaration. Though a relief of injunction is sought, the same is an ancillary relief and the real relief which the respondent seeks is declaration that the gift deed and sale deed are void. The Lahore High Court in Mt. Zeb-Ul-Nisa and Ors. They have only sought a decree of declaration. Though a relief of injunction is sought, the same is an ancillary relief and the real relief which the respondent seeks is declaration that the gift deed and sale deed are void. The Lahore High Court in Mt. Zeb-Ul-Nisa and Ors. v. Chaudhri Din Mohammad, AIR 1941 Lah 97 held as follows:- 33. It seems obvious that the consequential relief referred to in Section 7(iv)(c) could not mean a substantive relief the valuation of which is separately provided for in the Court-fees Act. If it were so held, a plaintiff could easily evade payment of the necessary court-fee on the substantive relief by pre-facing it with a declaration as to his rights. Every suit involves the establishment of certain rights of the plaintiff as a necessary preliminary to the grant of the relief claimed by him. But the addition of a prayer for a declaration as to such rights cannot convert a suit for a substantive relief into one for a 'declaratory decree where consequential relief is prayed for' within the meaning of Section 7(iv)(c), Court-fees Act. It is significant that the valuation of the relief in cases falling within the scope of Section 7(iv)(c) is left to the plaintiff. This is presumably because the 'consequential relief contemplated by the section is some ancillary relief to which the plaintiff becomes entitled as a necessary result of the declaration, but for which no separate provision is made in the Act. The essence of the relief in such cases lies in the declaratory part and the consequential relief being merely an auxiliary equitable relief, its valuation seems to have been left to the plaintiff. 34. The meaning of the expression consequential relief as used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, AIR 1932 All. 34. The meaning of the expression consequential relief as used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, AIR 1932 All. 485, and it was held that the expression 'consequential relief means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a 'substantial relief.' It follows therefore that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere 'consequential relief in the above sense the plaintiff must pay court-fee on the substantial relief. The above appears to me the appropriate answer to the main question of law which requires decision in this case. Applying the above test, we have now to see what would be the proper court-fee payable in the present case. As stated above, the plaintiff sued in this case for a twofold declaration viz. (4) that the property described in the plaint is waqf and (ii) that the alienations which defendants 1 and 2 have effected in favour of defendants 3 to 10 are null and void and are ineffectual against the wakf property. 13. Reliance of the petitioner on the judgment of this court in the case of S. Manjinder Singh v. Krishna Bhat & Ors (supra), is misplaced. In that case, the court noted the judgment of the Supreme Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & Anr. (supra). It also noted that in the case at hand the principal relief was for specific performance of agreement to sell and no effective relief could be granted to the plaintiff, unless they seek cancellation of the gift deed. Hence, the court in those facts held that the court fee has to be paid on the value of the suit property as reflected in the gift deed. 14. In the present case, respondent Nos.1 and 2/plaintiffs have not sought possession of the property as they are already in possession. They need not seek cancellation of the sale deed as they are not the executants of the sale deed. 14. In the present case, respondent Nos.1 and 2/plaintiffs have not sought possession of the property as they are already in possession. They need not seek cancellation of the sale deed as they are not the executants of the sale deed. Hence, the case would follow within the ambit of Section 7(iv)(c). The plaint is properly valued. 15. I do not see any reason to interfere with the impugned order. The present petition is accordingly dismissed. Petition dismissed.