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2019 DIGILAW 1444 (RAJ)

Devnarayan Sharma v. Ramphool

2019-05-10

SANJEEV PRAKASH SHARMA

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JUDGMENT Sanjeev Prakash Sharma, J. - The question raised by the petitioner by way of this writ petition is with regard to the applicability of Section 7 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter referred to as "Act of 1961') in relation to the suit referred to by the petitioner seeking specific performance and for declaring sale-deed null and void and for permanent injunction filed by the petitioner-plaintiff. On an application moved by the defendant, the trial court has directed the petitioner to pay court fees on the valuation of the sale-deed in terms of Section 7 of the Act of 1961. 2. The contention of the petitioner is that as the main relief prayed for is for specific performance of the agreement entered into between the plaintiff and defendants, and the prayer for declaring the subsequent sale-deed as null and void is an ancillary relief, therefore, in terms of Section 6 (1) proviso, he is not required to pay court fee with regard to the ancillary relief. Section 6(1) of the Act of 1961 reads as under: "Sec.6. Multifarious suits.- (1) In any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the relief: Provided that, if a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief." 3. It is his further submission that as he has not executed or party to the subsequent sale-deed executed between the respondents, in view of law laid down by Apex Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and ors. reported in AIR 2010 SC 2807 , the court fee on the valuation of the saledeed executed between the respondents, is not required to be paid as he is not seeking prayer for cancellation of the sale-deed but he is only praying for declaring it null and void. 4. Counsel for the petitioner has also relied upon two judgments passed by Coordinate Bench of this court first rendered in SBCW Pet. No.13831/2016 (Laxminarayan and anr. vs. Ram Swaroop and ors.) decided on 20.7.2017, and another reported in 2012(3) DNJ (Raj.) 1460-Ramlal and ors. vs Bajrang Lal. 5. 4. Counsel for the petitioner has also relied upon two judgments passed by Coordinate Bench of this court first rendered in SBCW Pet. No.13831/2016 (Laxminarayan and anr. vs. Ram Swaroop and ors.) decided on 20.7.2017, and another reported in 2012(3) DNJ (Raj.) 1460-Ramlal and ors. vs Bajrang Lal. 5. Per contra, counsel appearing for the respondents have placed reliance on two others judgments passed by Coordinate Bench reported in AIR 2015 (Raj.) 29 -Ratan Devi vs Gawra Devi and ors. ; and 2017 (1) DNJ 337 -Mahendra Singh Ranawat vs Bhagwati Devi and ors., to submit that the court fee is required to be paid where the petitioner claims for declaring sale-deed as null & void also. 6. The Addl. Advocate General who was asked to appear, has submitted that it is the nature of the plaint which is required to be considered for deciding whether essentially the suit filed is for cancellation of sale-deed or not. The counsel has relied on (2017) 11 SCC 852 -J.Vasanthi and ors. vs N.Ramani Kanthammal and ors. wherein the judgment passed by Madras High Court in Chellakannu vs Kalanji has been quoted and the word "cancelled" has been considered to mean also for declaring it as null and void and thus it is his submission that even if his prayer is couched in the form of declaration that document is not valid and not binding, the relief in substance indirectly amounts to seeking cancellation of the sale-deed and, therefore, court fee is required to be paid on the valuation of the sale-deed in terms of Section 38 of the Act. 7. The counsel has also relied on one judgment passed by another Coordinate Bench of this court reported in 2008(2) DNJ 818 -LRs of Surja Ram and ors. vs LRs of Asha Ram and ors. 8. In Suhrid Singh @ Sardool Singh vs Randhir Singh and ors. (supra), the question that arises for consideration was as to what is the court fees payable in regard to the prayer for a declaration that the sale-deeds were void and not binding on the coparcener and for consequential relief of joint possession and injunction and the Apex Court held as under: 6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. 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. 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. 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. 7. In this case, there is no prayer for cancellation of the sale deeds. 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. 7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds. 8. We accordingly allow these appeals, set aside the orders of the trial court and the High Court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments. 9. The view taken by the Apex Court as aforesaid, thus in my opinion, leaves no room of doubt that in a suit where the relief sought is for specific performance of agreement to sale and further relief is sought for declaring a sale-deed executed thereafter as null and void between the respondents, the plaintiff who is not a party to the subsequent sale-deed and is a non-executant would not be required to pay court fee on the valuation of the sale-deed. My view is thus similar to the view taken by Coordinate Bench in the case of Ram lal and ors. vs Bajrang Lal (2012) 3 DNJ (Raj.) 1460 (supra). I am also of the further view that the relief of declaring the sale-deed as null and void as an ancillary relief and thus in terms of Section 6(1) of the Act, as quoted above, the plaintiff is not required to pay court fee in an ancillary relief. 10. However, a look at the judgments passed by Coordinate Bench namely 2008 (2) DNJ 818 - Surja Ram and ors. 10. However, a look at the judgments passed by Coordinate Bench namely 2008 (2) DNJ 818 - Surja Ram and ors. vs LRs of Asha Ram and ors., AIR 2015 (Raj.) 29 -Ratan Devi vs Gawra Devi and ors., 2017 (1) DNJ 337 -Mahendra Singh Ranawat vs Bhagwati Devi and ors., view has been laid down otherwise, as well as same law has been laid down by another Coordinate Bench in SBCW Pet. No.13831/2016 (Laxminarayan and anr. vs Ram Swaroop and ors.). Thus there are different opinion on the issue. It is also noticed that the Apex Court in its three judges Bench judgment reported in 2017 (11) SCC 852 -J.Vasanthi and ors. vs N.Ramani Kanthammal and ors. has while approving the judgment of Madras High Court, limited the judgment of Suhrid Singh's case (supra) on the facts of the case. 11. The Apex Court in the case of OL vs. Parmanand, has observed that where there are different views taken by Coordinate Benches, it would be most appropriate for the matter to be referred to larger bench so that the question in issue can be finalized. 12. In view thereof, following question is referred to the Larger Bench: "As to whether the court fees in terms of Section 7 of the Rajasthan Court Fees and Suit Valuation Act, 1961 is required to be paid on the basis of valuation of the sale-deed executed between the respondents in a suit filed by the plaintiff for specific performance of the agreement and declaring the subsequent sale deed as null and void." 13. The Registry is directed to place the matter before Hon'ble the Chief Justice for further orders.