A.N. Jindal, J. - (1.) THE Petitioners -Plaintiffs (herein referred as 'the Plaintiffs') have preferred the present petition for quashing the order dated 21.04.2010, passed by Civil Judge (Junior Division), Karnal, allowing the application of Defendants -Respondents (herein referred as' the Defendants') for fixing the ad -valorem Court fee.
(2.) VIDE impugned order dated 21.04.2010, the trial Court directed the Plaintiffs to pay the ad -valorem Court fee in terms of Section 7(iv)(c) of the Court Fees Act as quantified under Section 7(v) of the Act. The order is bit confusing. The present suit is for declaration, claiming his rights in the property and annulment of the sale deeds and gift deeds, executed by Defendant No. 2 in favour of Defendant No. 1. Admittedly, the Plaintiffs are neither parties to the sale deeds nor the gift deed. The Apex Court in case Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors., 2010 (2) CCC 510 has clarified about the class of cases where the ad valorem court fee could be ordered to be paid. Their lordships has observed as under: 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. 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 Civil Revision No. 3479 of 2010 3 the value of the property calculated in the manner provided for by Clause (v) of Section 7.
(3.) THE property is stated to be joint coparcenary property and the Plaintiffs, being non -executant of the sale deed and having claimed no consequential relief, was not required to pay the ad -valorem court fee. Thus, the trial Court wrongly directed the Plaintiffs to pay the ad -valorem court fee.;