Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6182 of 2013 ====================================================== 1. Rajniti Prasad Singh S/O Late Murli Prasad Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria 2. Raja Ram Singh S/O Rajniti Prasad Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria 3. Sabnam Kumari @ Sabnam Singh D/O Rajniti Prasad Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria .... .... Petitioner/s Versus 1. Santosh Kumar Singh S/O Jai Prakash Singh R/O Village- Ranko, P.S. Muffasil, District- Khagaria 2. Govind Kumar S/O Late Shyamdeo Pd. Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria 3. Ajeet Kumar S/O Gopal Prasad Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria 4. Smt. Uma Kumari D/O And C/O Subodh Kumar Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria 5. Chandan Kumar Singh S/O Rajniti Pd. Singh R/O Village- Ranko Dih, P.S.- Muffasil, District- Khagaria .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Dronacharya ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 2 27-06-2013
Legal Reasoning
Heard learned counsel for the petitioners. The petitioners question legality of the order dated 5.2.2013 passed by learned Sub-Judge-Ist, Khagaria in Title Suit No. 199 of 2012 by which the petitioners/plaintiffs have been directed to pay ad-valerom Court fee as per report of Seristedar. As the controversy involved in the present case is based on the report of the Seristedar, I do not feel requirement of issuance of notice to the respondents of the present application 2 Patna High Court CWJC No.6182 of 2013 (2) dt.27-06-2013 2 / 5 under Article 227 of the Constitution of India. The said Title Suit No. 199 of 2012 is said to have been filed, seeking a relief that the sale deed dated 6.1.2012 executed by the defendant no.5 in the name of defendant no.4 and sale deed dated 5.10.2012 executed by defendant no.5 in favour of defendant no.2 and the sale deed executed by defendant no.5 in favour of defendant no.3 and the sale deed dated 9.11.2012 executed by defendant no.5 in favour of defendant no.1 are illegal and void. After filing of the suit the Seristedar is said to have reported that ad-valerom court fee on the basis of the value of the suit property to the tune of Rs. 44,41,000/- on the basis of the four sale deeds was required to be filed. Such report of Seristedar was objected to on the ground that as the relief prayed for was only declaratory in nature, ad-valerom court fee was not required to be paid. Learned Court below, however, came to a finding that the relief claimed by the petitioner/plaintiff carried necessary legal consequences that the sale deeds through which prima facie title passed to the defendants, would be required to be cancelled by the order of the Court and, therefore, vide impugned order dated 5.2.2013 directed the plaintiffs to pay ad-valerom court fee. Mr. Dronacharya, learned counselappearing on behalf of the petitioners has submitted that since the only relief which the 3 Patna High Court CWJC No.6182 of 2013 (2) dt.27-06-2013 3 / 5 plaintiffs sought in the suit is to declare the sale deeds as illegal, there is no requirement of payment of ad-valerom court fee in the absence of any prayer in the plaint for cancellation of the sale deeds. He placed reliance on a judgment of this Court reported in 2006(4) PLJR 443 ( Kamaldeo Pd. Singh Vs. Ram Shawari Devi), wherein this Court held that since the nature of the suit was declaratory and only relief prayed for by the plaintiff was for declaration that the sale deed executed by the defendant was void ab initio and no relief was prayed for cancellation of sale deeds, the report of Seristedar to pay ad-valerom Court fee and the order of the Court below on that basis was wrong and illegal. Learned Counsel for the petitioners also placed reliance upon the Supreme Court judgment reported in ( 2010) 12 SCC 122 (Suhrid Singh Vs. Randhir Singh) to contend that the plaintiff would be required to pay ad-valerom court fee in a suit for declaration that the sale deed was illegal or void ab initio, when he is shown the executant and in the case he has to seek cancellation of the suit and in such circumstance, he has to ad- valerom court fee. However, if a non executant seeks such relief, he will not be required to seek cancellation of sale deed and to pay ad-valerom court fee. Paragraphs 7 and 9 of the Supreme Court judgment is being quoted hereinbelow:- 4 Patna High Court CWJC No.6182 of 2013 (2) dt.27-06-2013 4 / 5 “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 want 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 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 the 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) © of the Act. 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 “coparcenary” 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.” 9. I find substance in the submission of the learned counsel for the petitioners. This is a case which the plaintiffs sought for 5 Patna High Court CWJC No.6182 of 2013 (2) dt.27-06-2013 5 / 5 only declaration that the sale deeds in question was void ab initio and in such circumstance they are not required to pay ad-valerom Court fee. The impugned order dated 5.2.20133 passed by learned Sub-Judge-Ist, Khagaria in Title Suit No. 199 of 2012 is set aside and accordingly, the writ application is allowed. (Chakradhari Sharan Singh, J) Arun Kumar/-