1. This petition is filed by plaintiff No. 1, who had filed the suit for declaration that she along with other plaintiffs are Class I heirs of late Narang Singh and have equal rights with the defendants in the estate (subject matter of the suit) left behind by Narang Singh; further sought declaration that the registered gift deed bearing vasika No. 7446 dated 10.11.2006 executed by Narang Singh in favour of defendant No. 1-Surjit Kaur (widow of Narang Singh) is illegal; mutation No. 2037 sanctioned in favour of defendant No. 1 on the basis of the said gift deed by order of the Assistant Collector 2nd Grade dated 23.01.2007 is also illegal, null and void; any entry incorporated in the revenue records on the basis of the said mutation is also liable to be corrected in the name of the heirs of Narang Singh oh the basis of natural succession and prayed for consequential relief of separate possession by way of partition of the property involved in the suit and for permanent injunction to restrain the defendants from alienating or transferring the suit property in any manner during the pendency of the suit. Defendant No. 1 filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") for rejection of the plaint for want of affixation of ad valorem court fee or for direction to the plaintiffs to affix the ad valorem court fee within the stipulated time. The said application was contested by filing reply and the learned trial Court, vide its impugned order dated 31.10.2013, allowed the application directing the plaintiffs to affix the ad valorem court fee on the amount of Rs. 23 lacs i.e. value of the entire property involved in the gift deed.
2. At the time of notice of motion, this Court directed the trial Court to carry on the proceedings without dismissing the suit for want of Court fee till further orders.
3. Learned counsel for the petitioner has submitted that the trial Court has committed an error while directing the plaintiffs to pay the ad valorem court fee on the entire value of the property involved in the gift deed though the plaintiffs have prayed for possession of the property in dispute by way of partition and as such they are liable to pay the ad valorem court fee only to the extent of their share. In support of his contention, he has relied upon the following decisions:--
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4. On the other hand, learned counsel for the respondents has submitted that the plaintiffs have sought declaration for the cancellation of the gift deed in which the value of the property involved is Rs. 23 lacs and are liable to pay the ad valorem court fee on the entire value of the property involved in the gift deed and not to the extent of their share only. In this regard, she has relied upon a judgment of the Supreme Court in the case of
5. I have heard learned counsel for the parties and perused the record.
6. Undisputedly, as per Order 7 Rule 11(b) of the CPC, the plaint can be rejected if the ad valorem court fee is not affixed or time prescribed for making the deficiency of the Court fee good is not availed.
7. In Suhrid Singh @ Sardool Singh''s case (supra), the Hon''ble Apex Court has explained that in case where executant of a deed wants the deed to be annulled, he has to seek cancellation and if non-executant seeks annulment, he has to seek declaration that the deed is invalid or non est. It has been further explained that if the executant of the deed seeks cancellation, he has to pay the ad valorem Court fee on the consideration stated in the plaint and if the non-executant, in possession, sues for declaration then he would have to pay the fixed Court fee of Rs. 19.50/-, prescribed under Article 17(iii) of Second Schedule of the Court Fees Act, 1870 (here-in-after referred to as the "Act"), but if the non-executant, not in possession, seeks not only declaration that the instrument of transfer is invalid but also prays for consequential relief of possession, then he has to pay the ad valorem court fee as provided under Section 7(iv)(c) of the Court.
8. The learned trial Court has relied upon the decision in the case of Suhrid Singh @ Sardool Singh''s case (supra), directing the plaintiffs to pay the ad valorem court fee on the entire value of the property involved in the gift deed but it had overlooked the other prayer of the plaintiffs wherein they have asked for possession of the suit property by way of partition.
9. In Rani Devi''s case (supra), the following observations have been made by the Delhi High Court:--
"12. Under Article 7(vi) in Schedule II of the Court Fees Act, where it is not possible to decide the money value of the subject matter in dispute, the suit can be filed by affixing a fixed Court Fee on the plaint. In Jagdish Pershad v. Joti Pershad, 1975 Rajdhani Law Reporter 203, it is held that where the plaintiff claims to be in joint possession of the property of which partition is sought, he is to pay only fixed Court Fee as per Article 17(vi) in Schedule II of the Court Fees Act. In the present case, however, it is not pleaded anywhere that plaintiff is in joint possession of the property and on the other hand in view of allegations made in paragraph 4 of the plaint, it is clear that the property is in exclusive possession of defendant No. 1. Therefore, in view of the provisions of Section 7(iv)(b) of the Court Fees Act and in view of the judgment of this Court in
10. In Sudershan Kumar Seth''s case (supra), it has been held that if the plaintiff is in possession of the property to be partitioned, only fixed court fee qua that part of the property shall be payable under Article 17(vi) of Schedule II of the Act but if he is not in possession and possession is sought by way of partition, the court fee under Section 7(iv)(b) has to be paid on the value of the property to that extent.
11. In Kailash Devi''s case (supra), the plaintiff filed a suit for partition of the suit property claiming to be a co-sharer therein to the extent of 59/88 share. A preliminary issue was framed as to whether the plaintiff was required to affix the ad valorem court fee on the plaint. The trial Court held that the plaintiff is liable to pay ad valorem court fee on market value of the suit property and directed the plaintiff to approach the revenue authorities to assess the market value of the suit property and to pay the ad valorem court fee accordingly. The said order was challenged by way of revision in which it was held by this Court that the plaintiff has nowhere pleaded that she is either in actual or constructive possession of the suit property or any part thereof and since the plaintiff is seeking relief of possession of her share in the suit property by partition thereof, she has to pay ad valorem court fee on market value of her share in the suit property and not on the market value of the entire suit property. It was also held that the market value of the suit property has to be assessed by the trial Court and not by the revenue authorities, after giving opportunities to both the parties for leading evidence.
12. Thus, from the aforesaid discussion, it is very much clear that if the non-executant of a document, transferring the rights in the property, seeks declaration and is not in possession, he is liable to pay the ad valorem court fee, but at the same time if the said non-executant/plaintiff is seeking possession by way of partition of the said property to the extent of his share, the plaintiff is liable to pay the ad valorem court fee to the extent of his share only and not on the entire value of the suit property. In view thereof, the present revision petition is hereby allowed and the impugned order passed by the learned trial Court is set aside.
