Gujarat High Court
Himaiben Devubha Manghuda vs Rajubhai Bhojabhai Ahir on 12 November, 2025
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6895 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==========================================================
Approved for Reporting Yes No
✔
==========================================================
HIMAIBEN DEVUBHA MANGHUDA & ORS.
Versus
RAJUBHAI BHOJABHAI AHIR & ORS.
==========================================================
Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1
MR MEET D PANSURIA(10170) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
DS AFF.NOT FILED (R) for the Respondent(s) No. 3,4
MR VH KANARA(1881) for the Respondent(s) No. 1
MS RENISHA R VYAS(5801) for the Respondent(s) No. 5
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 12/11/2025
ORAL JUDGMENT
1. The petitioners, invoking Article 227 of
the Constitution of India, challenge the order
dated 26th April, 2010 passed below Exhibit 6 in
Regular Civil Suit No. 99 of 2010 by the learned
5th Additional Senior Civil Judge, Jamnagar. By
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
the impugned order, the Trial Court directed the
petitioners to pay court fees under Section 6(9)
of the Gujarat Court Fees Act, 2004 on half the
value of the sale deed dated 26th February, 2008,
i.e. on Rs.04,25,500/-, within ten days.
2. As the material facts are largely
undisputed, only those necessary for adjudication
of the present petition are set out hereinbelow:
2.1 The case of the petitioner-original
plaintiff is that he purchased land bearing
Survey No.36/3, admeasuring 90 sq. metres, from
respondent No.5, who acted as the power of
attorney holder of respondent Nos.3 and 4, under
a registered sale deed dated 17th October, 2007.
executed another registered sale deed dated 26th
February, 2008 in favour of respondent Nos.1 and
2 in respect of the same land, pursuant to which
respondent Nos.1 and 2 allegedly dispossessed the
petitioner and took forcible possession of the
disputed property.
2.3 The petitioner, thus, approached the
civil court by way of Regular Civil Suit No.99 of
2010 for the following reliefs.
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
A) To declare that the plaintiff is legal-
owner/ possessor of the Tip Land at Mark-"A"
vide Registered Sale Deed No. 7944, dated
17/10/2007.
B) To declare the Tip Land at Mark-"A" vide
Registered Sale Deed No. 1813, dated
26/02/2008 of the Defendant No. 1 Null and
Void as it is Bogus, unenforceable,
ineffective.
C) To pass a decree in favour of the
plaintiff directing the Defendants to hand
over the vacant possession of the Tip Land at
Mark-"A" to the Plaintiff.
D) It is humbly prayed to grant any other
relief which may deem just and equitable to
the plaintiff and to pass a decree in favour
of the plaintiff.
2.4 Respondent No.1 - original defendant
No.1 entered appearance in the suit and filed an
application at Exh.16 under Order VII Rule 11(b)
and (c) of the Code of Civil Procedure, 1908.
2.5 Upon hearing both sides, the learned
Trial Court, by order dated 26th October, 2004
passed below Exh.16, partly allowed the
application and directed the original plaintiff
to pay court fees in terms of Section 6(9) of the
Gujarat Court Fees Act, 2004 on half the value of
the sale deed dated 26th February, 2008, i.e. on
Rs.04,25,500/-, within ten days.
3. Being aggrieved and dissatisfied with
the aforesaid, the petitioner - original
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
plaintiff has approached this Court by way of
present petition for appropriate orders.
4. Coordinate Bench of this Court vide
order dated 16th June, 2010, relying upon decision
of the Apex Court in the case of Suhrid Singh @
Sardool Singh v. Randhir Singh in Civil Appeal
Nos.2811-2813 of 2010, issued Rule in the matter
by staying the impugned order. On inquiry,
learned advocate for the petitioners - original
plaintiff stated that the suit proceedings are
going on before the trial court without payment
of ordered court fees and is at the stage of
evidence of defendants.
5. Heard learned advocate Mr.Meet Pansuria
for the petitioners and learned advocate
Mr.Nishit Acharya for learned advocate Mr.V.H.
Kanara for respondent No.1. Though served with
the Rule, respondent No.2 chosen not to appear.
Learned advocate Ms.Renisha Vyas for respondent
No.5 was not present when the matter was called
out, whereas direct service affidavit is not
filed for respondent Nos.3 and 4. However,
learned advocate for the petitioner as well as
learned advocate for respondent No.1 who are main
contesting parties are present, the present
petition is taken up for final hearing.
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
6. Learned advocate Mr.Meet Pansuria for
the petitioners, while assailing the impugned
order, has made following submissions.
6.1 Learned advocate for the petitioner
submitted that, as the original plaintiff is not
the executant of the sale deed dated 26th
February, 2008 which sought to be declared bogus,
inoperative, ineffective and null and void, the
provisions of Section 6(12) of the Act would
apply. It was contended that the Trial Court has
erroneously invoked Section 6(9) of the Act
despite the factual matrix warranting otherwise.
6.2 It was further contended that Section
6(12) of the Act encompasses suits seeking a
declaration with or without consequential relief,
and therefore, the plaintiff's prayer for
recovery of possession cannot attract ad valorem
court fees. According to learned advocate, the
Trial Court failed to consider the true import of
Section 6(12), and consequently, the reliance
placed on Section 6(9) is wholly misplaced. It
was therefore urged that the impugned order
warrants interference and ought to be quashed and
set aside.
6.3 To strengthen the above submissions,
learned advocate placed reliance on the decisions
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
of the Bombay High Court in Manoj Harshukhrai
Thakkar v. Matyubai Pitambar Bhagwanji Trust
[2019 SCC OnLine Bom 8823] and Govind Ramchandra
Patil through his legal heirs v. Liyakat Ali
[2018 SCC OnLine Bom 11981]. He submitted that in
Manoj Harshukhrai Thakkar (supra), the Court,
relying on the judgment of the Hon'ble Supreme
Court in Suhrid Singh @ Sardool Singh (supra),
clearly held that where a non-executant seeks
annulment of a deed, the appropriate relief is a
declaration that the deed is invalid, non est, or
not binding upon him. Learned advocate further
submitted that the Supreme Court has elaborated
the distinction between cancellation of a deed
and a declaration concerning a deed of
conveyance. According to him, the Supreme Court
has held that when the plaintiff is a non-
executant, a declaration alone is sufficient, and
the court fees payable are fixed and not ad
valorem. He therefore submitted that in the
present case also, since the disputed sale deed
was admittedly not executed by the petitioners-
plaintiffs, the relief sought is one of
declaration, and consequently, fixed court fees,
not ad valorem fees, would be applicable.
6.4 Learned advocate further submitted that
the Bombay High Court, relying on the aforesaid
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
judgment of the Hon'ble Supreme Court in Suhrid
Singh @ Sardool Singh (supra), has consistently
held that a non-executant of a sale deed is not
required to pay ad valorem court fees. He
contended that the provisions of the Court Fees
Act as applicable in Gujarat and Maharashtra are
materially identical, and therefore, the
reasoning adopted by the Bombay High Court ought
to be applied in the present case as well.
6.5 By making above submissions, learned
advocate for the petitioners has requested this
Court to allow the petition as prayed for.
7. Per contra, learned advocate Mr.Nishit
Acharya for respondent No.1, while supporting the
impugned order, has made following submissions.
7.1 Learned advocate for respondent No.1
vehemently argued that the impugned order passed
by the learned Trial Court is wholly justified
and in consonance with law. It was therefore
submitted that this Court, in exercise of its
supervisory jurisdiction under Article 227 of the
Constitution of India, ought not to interfere,
and the petition deserves to be dismissed.
7.2 It was further submitted that the plaint
contains not merely a prayer for declaration but
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
also a prayer for recovery of possession of the
suit property. Learned advocate contended that
Section 6(9) of the Act is couched in broad terms
and expressly employs the words "any sale."
Hence, on a plain reading of Section 6(9), where
a suit seeks a declaration that any sale or
contract relating to movable or immovable
property is void, ad valorem court fees on the
value of the property are attracted. It was,
therefore, submitted that the Trial Court has
rightly invoked Section 6(9).
7.3 Learned advocate next submitted that the
reliance placed on Section 6(12) of the Act by
the petitioners is misconceived. According to
him, Section 6(12) applies only to suits for
declaration where the subject matter is not
susceptible to monetary valuation. In the present
case, the petitioner not only seeks a declaration
regarding the invalidity of the sale deed dated
26th February, 2008 but also claims consequential
relief of possession. As the subject matter
namely, the property, is clearly capable of
monetary valuation, Section 6(12) has no
application.
7.4 It was further contended that the
decisions relied upon by the petitioners are
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
distinguishable on facts. Learned advocate
submitted that in all the cited judgments, the
plaintiffs were admittedly in possession of the
property and had sought only a declaration
regarding invalidity of the sale deed. In
contrast, in the present case, the plaintiff has
sought not only a declaration but also recovery
of possession. This vital distinction, it was
submitted, renders the cited authorities
inapplicable to the facts of the present case.
7.5 By making above submissions, learned
advocate for respondent No.1 requested this Court
to dismiss the petition.
8. Heard learned advocates for the
respective parties. No other and/or further
submissions have been canvassed except what are
mentioned hereinabove.
9. Upon considering the submissions
advanced by learned advocates for the respective
parties and examining the material on record, the
precise question of law that arises for
determination is:
whether, in a suit seeking a declaration
that a sale deed is void coupled with a
consequential relief of possession, the
court fees are to be assessed in accordance
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
with Section 6(9) or Section 6(12) of the
Gujarat Court Fees Act, 2004?
10. So as to decide the aforesaid question,
in my view, the provisions of Section 6(9) as
well as provisions of Section 6(12) deserve to be
considered closely.
"6. Computation of fees payable in certain
suits.
(9) for avoidance of sale, contract
for sale, etc. - In suits for
declaration that any sale or
contract for sale or termination
of the contract for sale of any
movable or immovable property is
void, one-half of the ad valorem
fee leviable on the value of the
property."
On a plain reading of Section 6(9), it
is evident that in any suit seeking a declaration
that a sale of movable or immovable property is
void, one-half of the ad valorem court fees on
the value of the property is payable. The use of
the expression "any sale" is significant, as it
renders the provision comprehensive. In my view,
this encompasses both executants and non-
executants of the sale deed. Accordingly,
irrespective of whether the plaintiff is an
executant or a non-executant, once a declaration
is sought to invalidate or avoid a sale deed, ad
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
valorem court fees on the value of the property
become payable.
"6. Computation of fees payable in certain
suits.
(12) for other declarations. - In suits
where declaration is sought, with or
without injunction or other
consequential relief and the subject
matter in dispute is not susceptible
of monetary evaluation and which are
not otherwise provided for by the
Act - one hundred rupees,
In all suits under sub-clauses
(b), (c) and (d) of clause (3) and
clauses (4) to (11), the plaintiff
shall state the amount at which he
values the relief sought, with the
reasons for the valuation."
On a plain reading of this provision, it
becomes clear that where a suit seeks a
declaration, with or without an injunction or
even without consequential relief, and the
subject matter is not capable of monetary
valuation, the court fees are to be paid on the
basis of the plaintiff's own valuation of the
relief. The legislature has thus expressly
contemplated that only in cases where the subject
matter cannot be assessed in monetary terms may
the plaintiff quantify the valuation for the
purpose of court fees.
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
11. Keeping in mind the aforesaid provisions
of law, at this stage, it would be an apt to take
notice of the decisions relied on by the
petitioner for appropriate understanding. The
decision in case of Suhrid Singh @ Sardool Singh
(supra) wherein in para-6 the Apex Court has held
as under.
"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- 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
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
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."
11.1 Upon a careful reading of the aforesaid
decision, it is evident that the Hon'ble Supreme
Court has clearly delineated two distinct
situations:
(i) where a non-executant seeks a declaration
while remaining in possession of the property,
and
(ii) where a non-executant seeks such declaration
while not being in possession.
The Court has unequivocally held that in
the former case where only a declaration is
sought by a non-executant in possession, fixed
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
court fees are payable. However, in the latter
situation, where the non-executant seeks both a
declaration and the consequential relief of
possession, the court fees are to be computed on
an ad valorem basis.
11.2 Applying the above principles to the
facts of the present case, it emerges that the
petitioner-plaintiff, though a non-executant of
the impugned sale deed, is admittedly not in
possession of the property and has therefore
sought possession as a consequential relief along
with the prayer for declaration. This factual
distinction, in the view of this Court, assumes
significance. The ratio of the Supreme Court
judgment in Suhrid Singh @ Sardool Singh (supra),
relied upon by the petitioner, is therefore not
attracted, as the petitioner stands on a
materially different footing. Consequently, the
said decision cannot be applied to the present
case.
11.3 With regard to the decisions of the
Bombay High Court, this Court has carefully
examined the judgments relied upon. It appears,
with respect, that those decisions do not contain
any detailed discussion of the underlying facts.
Moreover, in both cases, the Bombay High Court
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
has proceeded solely on the basis of the judgment
of the Hon'ble Supreme Court in Suhrid Singh @
Sardool Singh (supra). It is therefore reasonable
to infer that the factual background in those
matters was aligned with the situation
contemplated by the Supreme Court, namely where
the plaintiff was a non-executant in possession
seeking only a declaration. As the factual matrix
of the present case is materially different,
those decisions cannot be applied to the benefit
of the petitioners.
11.4 Turning now to the contention regarding
the applicability of Section 6(12) of the Act,
this Court finds the submission untenable.
Section 6(12) governs suits seeking a declaration
whether with or without an injunction or
consequential relief only where the subject
matter is incapable of monetary valuation. In the
present case, the plaintiff not only seeks a
declaration but has also claimed possession of
the land as a consequential relief. When the
relief sought pertains to possession of immovable
property, the subject matter cannot be said to be
beyond monetary evaluation. Hence, the factual
circumstances clearly take the case outside the
ambit of Section 6(12). To hold otherwise would
amount to overlooking the legislative intent that
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
Section 6(12) applies only in situations where
monetary assessment is inherently impracticable.
11.5 Conversely, Section 6(9) expressly
contemplates suits seeking a declaration that
"any sale" of movable or immovable property is
void. The deliberate use of the phrase "any sale"
is significant and renders the provision
expansive in its reach, thereby covering cases
involving both executants and non-executants of
the sale deed. The legislative intent is
therefore unambiguous, whenever invalidation or
avoidance of a sale is sought, the liability to
pay ad valorem court fees arises, subject to the
statutory measure.
12. In view of the foregoing discussion,
this Court is of the considered opinion that
where a non-executant seeks a declaration for
avoidance or invalidation of a sale deed along
with the consequential relief of possession,
Section 6(9) of the Gujarat Court Fees Act, 2004
squarely applies. Necessarily, Section 6(12)
would apply only in cases where the declaration
sought pertains to a subject matter not
susceptible to monetary evaluation, whether or
not accompanied by an injunction or other
consequential relief.
NEUTRAL CITATION
C/SCA/6895/2010 JUDGMENT DATED: 12/11/2025
undefined
I answer the question accordingly.
13. With the aforesaid discussion, the
present petition is dismissed with no order as to
costs. Rule is discharged. Interim relief stands
vacated forthwith.
(NIRAL R. MEHTA,J)
ANUP
