Niraj S/O Narendra Walle vs Smt. Vijaya W/O Narendra Walle And ...
2017 Latest Caselaw 1462 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR



                                                       WRIT PETITION NO.1075/2016

Niraj S/o Narendra Walle, 
aged about 28 Yrs., Occu. Service, 
R/o Shrirampur, Tah. Pusad, 
Distt. Yavatmal.                                                                                                                                                ..Petitioner.

           ..Vs..

1.         Smt. Vijaya W/o Narendra Walle,
           aged about 58 Yrs.

2.         Bharti D/o Narendra Walle,
           aged about 32 Yrs.

           Both R/o Shrirampur, Tah. Pusad, 
           Distt. Yavatmal. 

3.         Sou. Namrata Shashikant Rawane,
           aged Major, R/o Ansing Shikshak 
           Colony, Ansing, Tah. & Distt. Washim. 

4.         Sou. Nita Ashish Kanhed,
           aged Major, R/o Verul, Tah. Khultabad, 
           Distt. Aurangabad. 

5.         Dr. Durgasingh Ravindrasingh Gautam,
           aged about 42 Yrs., R/o Vasant Nagar, 
           Pusad, Tah. Pusad, Distt. Yavatmal. 
           (At present Vidya Vihar Layout, 
           behind Shankar Nagar, Pusad, 
           Tah. Pusad, Distt. Yavatmal.)                                                                                                           ..Respondents.
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           Shri S.D. Chande, Advocate for the petitioner. 
           Shri Saurabh A. Chaudhari, Advocate for respondent No.5.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     5.4.2017.





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ORAL JUDGMENT

1. Heard Shri S.D.Chande, Advocate for the petitioner and Shri

Saurabh A. Chaudhari, Advocate for the respondent No.5. None for the other

respondents though served.

2. The original plaintiff has challenged the order passed by the trial

Court rejecting the application (Exh. No.47) filed by him seeking review of the

order passed by the trial Court on 30th August, 2013 by which the plaintiff was

directed to compute the court fees payable by him in accordance with valuation

of sale deed dated 24th December, 2010. The petitioner / plaintiff has also

challenged the order passed by the trial Court on 30th August, 2013.

3. The submission on behalf of the petitioner / plaintiff is that he is not

executant of the sale deed dated 24 th December, 2010 and as he is not seeking

decree for the possession of the property which is subject matter of the sale

deed dated 24th December, 2010, he is not required to pay ad valorem court fee

on the valuation of the sale deed. To support the submission, the learned

Advocate for the petitioner has relied on the judgment given in the case of

Suhrid Singh @ Sardool Singh V/s. Randhir Singh & Ors. reported in AIR 2010

SC 2807.

4. The learned Advocate for the respondent No.5 has relied on the

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provisions of Section 6(iv)(ha) of the Maharashtra Court Fees Act which lays

down that in a suit for declaration that any sale or contract for sale or

termination of contract for sale of any movable or immovable property, the

plaintiff is liable to pay one-half of ad valorem fee leviable on the value of the

property. It is submitted that the judgment given in the case of Suhrid Singh @

Sardool Singh V/s. Randhir Singh & Ors. (supra) is relying on the provisions of

Section 7(iv)(c) of the Court Fees Act, 1870 as amended in Punjab and in the

present case liability of the plaintiff to pay the court fee would be as per

Section 6(iv)(ha) of the Maharashtra Court Fees Act. It is submitted that the

provisions of Section 7(iv)(c) of the Court Fees Act, 1870 as amended in

Punjab are different than the provisions of Section 6(iv)(ha) of the

Maharashtra Court Fees Act.

5. After examining the two provisions, I find that the judgment relied

upon by the learned Advocate for the petitioner clinches the issue. Paragraph

No.6 of the above referred judgment is relevant, which is reproduced below:

"6. 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-

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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."

The plaintiff is admittedly not executant of the sale deed dated 24 th December, 2010. The plaintiff has not prayed for decree for possession.

Considering the proposition laid down in the judgment given in the case of Suhrid Singh @ Sardool Singh V/s. Randhir Singh & Ors. (supra) the plaintiff is not liable to pay the ad valorem court fee as per Section 6(iv)(ha) of the Maharashtra Court Fees Act. The impugned orders are passed overlooking the above legal position and, therefore, they are unsustainable. The impugned orders are set aside. Rule made absolute in the above terms. In the circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.