Rajasthan High Court

Chotu Singh S/O Lakshmi Narayan vs Seema Kanwar W/O Shree Pawan Singh ... on 6 September, 2023

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:21473]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 150/2021

Chotu Singh S/o Lakshmi Narayan, Aged About 55 Years, Village
Kherwal, Tehsil Dausa, (Rajasthan)
                                                   ----Petitioner/Defendant No.2
                                         Versus
1.       Seema Kanwar W/o Shree Pawan Singh, Aged about 21
         years,       Village       Kherwal,       Tehsil     And     District   Dausa,
         (Rajasthan)
2.       Vijendra Singh S/o Lakshmi Narayan, Aged about 45
         years,       Village       Kherwal,       Tehsil     And     District   Dausa,
         (Rajasthan)
3.       State Of Rajasthan, Through Tehsildar, Tehsil And District
         Dausa.
4.       Sub-Registrar Dausa, Village Dausa.
                                                     ----Respondents/Defendants

5. Rampratap S/o Chaju / Chajya, Aged about 64 years, Village Kherwal, Tehsil Dausa.

1/1. Smt. Lalita Devi W/o Hanuman Singh D/o Shree Rampratap, Aged about 45 years Village Singhwada, Tehsil Lawan, District Dausa (Rajasthan)

----Respondent/Plaintiff

For Petitioner(s) : Mr. Vijay Choudhary For Respondent(s) : Mr. Devanshu Sharma with Mr. Arjun Parashar

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

06/09/2023

This civil revision petition is directed against the order dated

30.09.2021 passed by the learned Civil Judge, Dausa, District

Dausa (Rajasthan) (for brevity, "the learned trial Court") in Civil

Suit No.10/2019 whereby, an application filed by the

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petitioner/defendant no.2 (for brevity, "the defendant no.2")

under Order 7 Rule 11 CPC has been dismissed.

The relevant facts in brief are that the respondent

no.5/plaintiff (for brevity, "the plaintiff") filed a suit for

cancellation of two registered gift deeds dated 19.12.2018 and

permanent injunction against the defendant no.2 and the

respondents no.1 to 4 stating therein that the defendants no.1 to

3 fraudulently got executed the aforesaid gift deeds from him of

the ancestral property. Therein, the defendant no.2 filed an

application under Order 7 Rule 11 CPC raising objection as to

under valuation of the suit and payment of deficit Court fee which

has been dismissed by the learned trial Court vide order dated

30.09.2021, impugned herein.

Assailing the order impugned dated 30.09.2021, learned

counsel for the defendant no.2 submits that since, the suit has

been filed for cancellation of the registered gift deeds executed by

the plaintiff himself, the Court fee would be payable as per Section

38 of the Rajasthan Court Fee and Suit Valuation Act, 1961 (for

brevity, "the Act of 1961") and not as per its Section 24. He

submits that for payment of Court fee under Section 38, the

plaintiff is required to assess the market value of the subject

matter of the suit, i.e., the land and to pay the Court fee ad

valorem. He, in support of his submissions, relies upon following

judgements:

1) Makhan Lal Vs. Urban Improvement Trust, Jaipur City: S.B. Civil Revision Petition No.104/1977

2) Mohkam Chand Dasot & Anr. Vs. Addl. Distt. & Sessions Judge No.3, Jaipur City, Jaipur: (2006) 3 RLW 1858

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Per contra, learned counsel for the plaintiff would submit that

the assessment of market value of the land and payment of Court

fee thereupon is a mixed question of law and fact which cannot be

determined under Order 7 Rule 11 CPC. He submits that he has

rightly valued the suit under Section 24 of the Act of 1961. He,

therefore, prays for dismissal of the revision petition. Learned

counsel, in support of his submissions, relies upon following

judgement:-

1) Smt. Sunita Dhamani & Anr. Vs. Pushpa Goenka & Anr.: S.B. Civil Revision Petition No.104/2008

Heard. Considered.

A perusal of the plaint reveals that the plaintiff has sought

cancellation of the two registered gift deeds dated 19.12.2018

executed by him. Although, the plaint is bereft of any averment

under which provision of law, the suit has been valued; but,

learned counsel for the plaintiff submits that it has been done so

under Section 24 of the Act of 1961.

Section 24 of the Act of 1961 reads as under:-

"24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25-

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;

(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market-value of the property, subject to a minimum fee of twenty rupees;

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(c) where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint subject to a minimum fee of forty rupees;

(d) where the prayer is for a declaration with reference to any property and no consequential relief is prayed for, fee shall be computed on the market

-value of the property, subject to a minimum fee of twenty rupees;

(e) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint, subject to a minimum fee of twenty-five rupees."

Section 38 of the Act of 1961 reads as under:-

"38. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit and such value shall be deemed to be-

(a) if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed; and

(b) if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less."

The Hon'ble Apex Court of India has, in case of Suhrid

Singh @ Sardool Singh Vs. Randhir Singh & Ors.: (2010) 12

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SCC 112, interpreting the pari materia provision in Punjab Court

Fees Act, 1870, held as under:

"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 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."

Similar view has been taken by a co-ordinate Bench of this

Court in case of Makhan Lal (supra), wherein, it was held as

under:-

"17. The learned counsel for the plaintiff-

respondent basically relies on Section 38 (a) of the Act, which provides in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be (a) if the whole decree or other document is sought to be cancelled, the amount or value of the property for

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which the decree was passed or other document was executed. His contention is that the sale-deed dated 6th May, 1975 was executed for Rs. 10,000/- and according by the suit valued and court-fees paid by the plaintiff before the trial Court are correct. The learned counsel for the defendant-petitioners contended that as the plaintiff was not a party to the decree dated 4th December, 1972, or a party. to the document, or a party to the registered sale-deed dated 6th May, 1975, the plaintiff can bring a suit only for declaration and not for cancellation of the decree or the instrument of sale. In Sukhlal V. Devilal (AIR 1954 Raj 170) it was held that where the plaintiff is a party to a decree or to the instrument of sale, then he is to pray for the cancellation of the decree or the deed, as the case may be. But in a case in which he is not a party, then he has to seek declaration to the effect that the document or the decree is void ab initio and ineffective as against him. This very view has been adhered to in Shantilal v. Ramabai (AIR 1974 Raj 69) and Joseph v. Isha Khan (AIR 1958 Pat 108). If the plaintiff was a party to the sale-deed, or to the decree, then the court-fees would have been payable under Section 38 of, the Act, but where the plaintiff is not a party either to the decree or to the sale-deed, the court-fees shall be payable under Section 24 (a) of the Act. The learned trial Court has held that Section 38 of the Act is applicable in the instant case. In my considered opinion, the learned trial Court fell into an error of law, and wrongly held that the court-fee was payable under Section 38 of the Act."

In the backdrop of aforesaid precedential law, this Court has

no hesitation in holding that instead of Section 24, Section 38

would apply in the instant case as the plaintiff has sought

cancellation of the deeds executed by him.

The judgement in case of Smt. Sunita Dhamani (supra)

relied upon by learned counsel for the plaintiff is of no assistance

to him as it is trite law that if from the averments in the plaint, it

appears that the suit has not been valued properly and sufficient

Court fee has not been paid, under Order 7 Rule 11 (B) & (C) or

under Section 11 of the Act of 1961, the Court can direct the

plaintiff to value the suit properly and to pay the Court fee

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