In CR No.1048 of 2022-PUNJ HC- Executant seeking cancellation of sale deed has to pay ad-valorem court fee on consideration stated in such deed, reiterates P&H HC Justice Alka Sarin [22-04-2022]

Read Order: Ranbir Singh @ Ranvir Singh v. Kanchan and Another 

Monika Rahar

Chandigarh, May 06,2022: The Punjab and Haryana High Court has reiterated that once a person is an executant of a sale deed and he seeks cancellation of the deed, then he is bound in law to pay ad-valorem court fee on the consideration stated in such deed.  

The Bench of Justice Alka Sarin added, “It is only a person, who is a non-executant and is in possession and sues for a declaration that the deed is null or void, who would not have to affix ad-valorem court fee and in case a person being a non-executant is not in possession, who seeks possession, in that case he would have to affix ad-valorem court fee.”

The challenge in the present revision petition under Article 227 of the Constitution of India was to the order of the Trial Court whereby the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) read with Section 151 CPC was allowed and it was held that the plaintiff-petitioner was bound to pay the ad-valorem court fee. The plaintiff-petitioner was granted one opportunity to make good the deficient court fee and if on the given date he would not do so then the plaint was directed to be rejected. 

The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for a declaration to the effect that the sale deed (dated June 28, 2017) executed by the plaintiff in favour of the first defendant was a security document without consideration and thus was not meant for actually transferring ownership and possessory rights in favour of alleged vendee (first defendant). 

It was claimed that the sale deed was executed as a security to the loan amount due from the father of the plaintiff to the first defendant of which the father-in-law of the first defendant was the sole proprietor and that the plaintiff was legally entitled to get back the suit land by treating the said sale deed as cancelled on payment of balance amount found due. It was also claimed that the plaintiff was also entitled to get the revenue record corrected accordingly and as a consequential relief, the plaintiff sought a permanent injunction restraining the first defendant from alienating the suit land as well as creating any charge thereon. 

Thereafter, an application was filed under Order VII Rule 11 CPC for rejection of the plaint by the defendants-respondents inter-alia on the ground that the plaintiff-petitioner failed to affix the ad-valorem court fee on the total sale consideration and that the plaint was liable to be rejected. In reply, the plaintiff-petitioner stated that the sale deed was a security document and given the relief claimed, the plaintiff-petitioner was not required to pay the court fee on the value shown in the sale deed. 

The Counsel for the plaintiff argued that though the plaintiff-petitioner was an executant of the sale deed, however, since the sale deed was only a security document and was never intended to actually transfer any right, title or interest in the suit land and also the fact that the plaintiff-petitioner was in possession of the suit land, hence, ad valorem court fee was not payable.

After considering the rival submissions, the Court did not find substance in the argument of the petitioner to the effect that since the plaintiff-petitioner was in possession of the property hence, it was merely a decree of declaration and ad-valorem court fee was not to be affixed. 

Rather the Court was of the opinion that since the was the executant of the sale deed, the case of the petitioner was covered by the Supreme Court decision in Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. wherein it was held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed and when a non-executant seeks annulment of a deed, he has to seek a declaration that it is invalid and non-est and once a person is an executant of the deed and seeks cancellation of the deed he is bound in law to pay ad-valorem court fee on the consideration stated in the sale deed. 

In light of the above, the Court opined that it is only a person, who is a non-executant and is in possession and sues for a declaration that the deed is null or void, who would not have to affix ad-valorem court fee and in case a person being a non-executant is not in possession, who seeks possession, in that case, he would have to affix ad-valorem court fee.