Jasmair v. Ram Bhagat & Ors.

CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rajneesh Gupta, Advocate, for the petitioner Mr. Rajinder Goyal, Advocate for the respondents. ***** S.D.ANAND, J. The controversy in the petition before this court is with regard to the validity or otherwise of the impugned order dated 12.1.2008 vide which the learned Trial Court, while allowing a plea filed by the respondents-defendants under Order 7 Rule 11 C.P.C. directed the plaintiff-petitioner to pay the ad-valorem court fees in the suit. The learned Trial Court, in recording the view obtained, relied upon the Full Bench Judgment of this Court in Niranjan Kaur Versus Nirbigan Kaur 1981 PLJ 423 (FB). I have heard Mr. Rajneesh Gupta, learned counsel appearing on behalf of the petitioner and Mr. Rajinder Goyal, learned counsel appearing on behalf of the respondents and carefully gone through the record. Civil Revision No. 840 of 2008 -2- **** In order to enable the appropriate appreciation of the controversy, it may be noticed, at the very outset, that the plaintiff-petitioner has called into question the validity of the impugned sale deed dated

14.5.2004 which had been executed by his father and brother in respect of the coparcenary property. The allegation of the plaintiff-petitioner is that the impugned sale deed is without consideration and legal necessity. It is, thus, evident that the challenge herein is by a coparcener to the impugned act of the Karta and the averment, in the context, is that the sale was of coparcenary/joint hindu family property which could not have been effectuated by the Karta without legal necessity and consideration. Insofar as the reliance placed by the learned Trial Court upon Niranjan Kaur's case (supra) is concerned, it is thoroughly misconceived. The facts in that case were entirely different. In that case, the plaintiff had filed a suit for possession of agricultural land on the allegation that she was owner thereof. She could not manage that property on account of her old age. She had appointed her nephew (father of defendant therein) as her General Power of Attorney. On that account, the attorney was entitled to manage, sell or mortgage that property. For effectuation of that purpose, the attorney used to obtain her signatures on various documents. On account of that fiduciary relationship, the attorney obtained signatures of the plaintiff on certain papers on a representation that those were to be submitted to the Income Tax authorities. However, those documents bearing the signatures of the plaintiff were converted into sale deeds which the attorney had executed in favour of self and his own minor daughter ( who was also a defendant therein). The plaintiff therein filed a suit to obtain invalidation of those sale deeds. It was under those circumstances the the Full Bench of this Court held that if a plaintiff, who is a party to a Civil Revision No. 840 of 2008 -3- **** document under challenge seeks cancellation thereof and there is also a plea for the possession of that property, ad-valorem court fee is payable in the suit. The facts of that case were, thus, entirely different from the present case in which the plaintiff-petitioner is not a party to the impugned document. In similar eventualities, this Court has repeatedly held that ad- valorem court is not payable. Reference, in that context, may be made with advantage to Ravinder Kumar Vs. Narinder Kumar and others 2007 (2) R.C.R. (Civil) 1 and Sham Lal Vs. Sudesh Kumar and another 2007 (5) R.C.R. (Civil) 658, Smt. Rekha Vs. Suresh Kumar and others 2008 (4) RCR 430 and Ravinder Kumar Vs. Narinder Kumar 2007(2) RCR (CIVIL)-1. In the face thereof, the reliance placed by the learned counsel for the defendants-respondents upon Teja Singh Vs. Smt. Amar Kaur and others 2008 (1) Civil Court Cases 531 (P&H), Shakuntla Vs. Rohtas Singh 2008 (4) R.C.R. (Civil) 80, Anil Rishi Vs. Gurbaksh Singh 1998 (2) P.L.R. 417Himanshu Vs. Smt. Kailash Rani 2004 A.I.R. (Punjab) 207 and Bhupesh Kumar Sharma and others Vs. Manohar Kumari and others 2007 (2) R.C.R.(Civil) 784 is inappropriate. In Teja Singh's case (supra), the plaintiff therein had filed a suit for declaration “challenging the power of attorney allegedly executed in favour of defendant no.1 on 16.10.1996; Gift deed dated 10.1.2005 executed by defendant no.1 in favour of defendant nos. 2 3 and further mortgage of the land by defendant nos.2 and 3 with defendant No.4.” In Shakuntla's case (supra), the plaintiff therein had challenged the sale deed on a plea that it had been got “executed by making somebody else to appear on her behalf.” Civil Revision No. 840 of 2008 -4- **** In Anil Rishi's case (supra), the plaintiff therein had filed a suit for declaration that “the registered sale deed dated 26.3.1991 was forged, fabricated and fake document and is not enforceable in respect of the property in question.” In Himanshu's case (supra), the challenge to the impugned sale deed was based upon an allegation of fraud. In Bhupesh Kumar's case (supra), the challenge to the validity of the impugned sale deed was on an averment that those (sales) “are in excess to the shares of the defendants.”. Thus, the facts involved in those cases were entirely different from the facts in the case before this Court. In all those cases, the challenge had not been posed by a coparcener nor was the challenge in respect of the coparcenary property. In the light of the foregoing discussion, the petition shall stand allowed. The impugned order dated 12.1.2008 shall stand set aside. The plaintiff-petitioner shall not be liable to pay the ad-valorem court fee. March 18, 2009 Pka (S.D.Anand) Judge