Hemant Gupta, J.
1. The defendants are in revision petition aggrieved against the order passed by the learned trial court whereby the plaintiff was required to pay Court fee on the ten times value of the land revenue in respect of the land in dispute.
2. The plaintiff-respondents have filed a suit for declaration claiming that they are owners in possession in equal shares of the land in dispute measuring 17 kanals 12 marlas and that the sale deeds dated 24.6.1999 executed by defendant No. 6 in favour of defendant Nos. 1 to 5 is illegal, null and result of fraud etc. The said declaration was sought on the ground that the land in dispute is ancestral and that the same has been sold by defendant No. 6 without any legal necessity and consideration.
3. Learned trial Court vide the impugned order decided the application filed by the defendant-petitioners for directing the plaintiffs to pay requisite ad valorem court fee on the value of the sale deed. The learned trial Court, after examining the respective contentions of the parties, found that where documents sought to be avoided in respect of agricultural land are subject to the land revenue then the ad valorem court fee is payable not on the value of the property but on value which is ten times of the land revenue.
4. Learned Counsel for the petitioners has vehemently argued that since the plaintiff has challenged the sale deed allegedly executed of the joint Hindu family property and therefore, the plaintiff is deemed to be party to the such sale deed. Therefore, the plaintiff is liable to pay ad valorem court fee in terms of provisions of Schedule-1 Article 1 of the Court Fee Act, 1870. Reference was made to a Full Bench judgment of this Court in Niranjan Kaur v. Nirbigan Kaur (1982) 84 P.L.R. 127.
5. Before considering the argument raised by the learned Counsel for the petitioners, it may be noticed that under Section 7(iv)(c) of the Court Fees Act, 1870, the amount of court fee is required to be paid on which relief is sought in the plaint i.e. when the relief is to obtain a declaratory decree or order and where consequential relief is prayed for. By virtue of Court Fee (Punjab Amendment Act, 31 of 1953), it is contemplated that in such suits, where the relief sought 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. The specific court fee, is contemplated under Sub-section (v), as payable in the suits for the possession of land, houses and gardens. Article 1 Schedule 1 contemplates ad valorem court fee for the plaint, written statement, pleadings or counter claim or memorandum of appeal if not otherwise provided for in the Act. Schedule 11 Article 17 Sub-clause (iii) contemplates that the plaint or memo of appeal in the suit to obtain declaratory decree where no consequential relief is prayed shall carry a fixed court fee of Rs. 19.50P. The Court Fee Act, 1870 in its applicability to Haryana has been amended. Sub-clause (v) of Section 7 has been substituted vide Act No. 22 of 1974 whereas as per Schedule Second Article 12 has been amended to provide for a fixed court fee of Rs. 25/- on a plaint or memorandum of appeal in the suit to obtain declaratory decree where no consequential relief is prayed for.
6. It has been held by a Full Bench of this Court in a judgment reported-as Vishwa Nath and Anr. v. Smt. Sita Bai Anand and Ors. that valuation for court fee of a suit to set aside a decree, where in execution of such decree property has been sold and possession given and where recovery of possession of the property so sold is sought, falls under Section 7(iv)(c) of the Act arid the court fee is payable on the value of the relief as fixed and stated by the plaintiff. It may be noticed that the said judgment was prior to insertion of Second proviso to Sub-section 7(iv) of the Act. It was held therein to the following effect:
Shrimati Sita Bai is in possession of the land as the result of an auction held in execution of a decree. This decree was passed by a Court of competent jurisdiction and therefore, the plaintiff cannot seek possession of the property as long as this decree stands in his way. Although the object of his suit is to obtain possession of the land he cannot do so unless the decree is declared ineffective against him and that being so it is clear that the plaintiff must of necessity ask for a declaration that the decree is not binding upon him and, until this is done, he cannot sue for possession, and in this view of the matter the suit must be held to be a suit under Section 7(iv)(c) of the Court Fees Act.
7. In Akhouri Bikramajit Persad v. Girwar Prasad Narain Singh A.I.R. 1949 Patna 363, a suit by a son for the possession of the property sold in execution of money decree against his father was held to be a suit under Section 7(iv)(c) of the Act. In the said suit the plaintiff had not asked for a declaration but it was held that the possession could not be given without setting aside the sale and therefore, it must be inferred that the plaintiff had also asked for a declaration. Similarly the judgment of Orissa High Court in Udaynath Mohapatra v. Rahas Pandian : AIR1951Ori10 was also quoted with approval in the above said Full Bench judgment of this Court.
8. Two questions were referred to the Full Bench for decision in Prabhu and Ors. v. Girdhari A.I.R. 1965 Punjab 1. Question No. 2 was whether in a suit where the plaintiff seeks a declaration that the previous decree are null and void and be set aside and further prayer was for fresh partition of the property, whether such suit is governed by Section 7(iv)(c) of the Court Fees Act. While considering the said question, it was held that since plaintiffs were parties to the previous suit, it was necessary for them to get the previous decrees set aside before they claim fresh partition. Therefore, the provisions of Section 7(iv)(c) are attracted. Relief of partition was found to be consequential relief. It was held that consequential relief is incidental to the main declaratory relief and the same cannot be granted if the latter is refused. Therefore, it was concluded that even if, the plaintiff has sought relief of fresh partition, the case would still be governed by the provisions of Section 7(iv)(c) of the Act.
9. The other question framed was with respect to the effect of Second proviso inserted by Punjab Amendment Act 31 of 1953.
10. It was held that where the property which was the subject-matter of the previous decree, the expression 'with reference to any property' as used in the second proviso would mean the property which was the subject-matter of the previous decree. The plaintiffs were made liable to pay court fee in terms of the provisions of Section 7(v) of the Act.
11. Shamsher Singh v. Rajinder Prashad and Ors. : [1974]1SCR322 was a case where a suit by a Hindu son against his father and the mortgagee decree holder was for a declaration that the mortgage executed by the father in respect of the joint Hindu family property was null and void for want of legal necessity and consideration. It was found that though couched in a declaratory form, is in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. It was held that the plaintiff is liable to pay ad valorem court fee under Section 7(iv)(c) of the Act. It has been held by Hon'ble Supreme Court that in a suit by the son for declaration that the mortgage decree obtained against his vendor was not binding on him, it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under Section 7(iv)(c) of the Act. The decree against the father is a good decree against a son and unless the decree is set aside it would remain executable against the son and it was essential for the son to ask for setting aside the decree.
12. Hon'ble Supreme Court in Shamsher Singh's case (supra) has, in fact, dismissed the appeal arising' out of a Division Bench judgment of this Court in Rajinder Parshad and Ors. v. Shamsher Singh and Ors. (1967) 69 P.L.R. 445. The judgment of Division Bench is based upon judgment of Full Bench judgment of this Court in Prabhu's case (supra) as well as the Full Bench judgment of Lahore High Court in Zeb-Ul-Nisa v. Din Mohammad A.I.R. 1941 Lahore 97 (F.B.).
12. It may be noticed that the Full Bench in Niranjan Kaur v. Nirbigan Kaur (1982) 84 P.L.R. 127, has referred to above said Full Bench judgment and the judgments of the Hon'ble Supreme Court and found not applicable in the facts of the present case on the ground that the case under consideration was a case where the plaintiff was a party to the instrument of alienation and the same was sought to be avoided on the allegation of fraud. It was held to the following effect:
Thus, what the Supreme Court has held in Shamsher Singh's case (supra) is that in the suit by the plaintiffs for the declaration that the decree obtained by the mortgagee against their father was not binding on them, they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgage property as he was entitled to do. This case is hardly helpful to the case of the plaintiff petitioner as it is clearly distinguishable from the facts of the present case for the simple reason that herein the plaintiff petitioner is a party to the document, which she is required to get cancelled because of the alleged fraud etc. A suit for declaration by a son or a member of a coparcenary under the Hindu Law will thus be on a different footing. In such a suit, the main relief will be that of a declaration and the consequential relief of injunction restraining the decree holder from executing the decree against the sons etc. will be just ancillary. (Emphasis supplied). This is further clear when reference has been made in Shamsher Singh's case supra to Vinavakrao v. Mankunwaribai wherein it was held that in a suit by the son for a declaration that the decree against his father does not effect his interests in the family property, consequential relief was involved and ad valorem court fee was necessary.
13. After observing so, the Full Bench has found that since the sale is sought to be avoided on the ground of fraud and the plaintiff being party to such instrument, the court fee payable would be under residuary provisions contained in Article 1 Schedule 1 of the Act. Therefore, the judgment of the Full Bench in Niranjan Kaur's case is not helpful to the petitioners which stands on different footing.
14. It may be noticed that in Gurjeewan Singh v. Jagar Singh and Ors. (1990-1) 97 P.L.R. 261 it has been held that where the challenge is under the Hindu Law to the alienation made by his father on the ground the same being without legal necessity and without consideration, the suit is for declaration and the possession is by way of consequential relief, wherein it was held to the following effect:
The present suit has been filed by the plaintiff under the Hindu Law challenging the alienation made by his father on the ground of being without legal necessity and without consideration. The plaintiff being the member of the joint family has a right to have the transactions declared null and void, if they are not justified. That being so, the question of paying ad valorem court fee on the sale price did not arise. For all intents and purposes, the suit is for declaration and the possession is by way of consequential relief.
15. Prior to the said judgment, this Court in Anup Kumar v. Bhagwal etc. (1972) 74 P.L.R. 156 has held that in a suit challenging the alienation of joint Hindu Family property effected by the father of the plaintiff as not binding on him, with a prayer for grant of decree for possession of the property in dispute jointly with the father falls under Section 7(iv)(c) of the Act. It was held that the remedy of possession is essentially a consequential relief flowing from and arising of the declaration sought by the plaintiff. It was held to the following effect:
Section 7(iv)(c) of the Act is applicable to a case where a declaration is sought and as a consequential relief some other relief is also prayed for. The case directly on the point, referred to by the learned Counsel for the petitioner before me, is Harkishan Lal v. Barkat Ali. That was an exactly similar case in which it was held that 'a suit by a son for a declaration that the sale of joint Hindu family property effected by his father had not been made for family necessity and was not binding on him, and for joint possession of the property sold along with his father, falls under Section 7(iv)(c) in as much as an alienation by the father of a Hindu joint family is not void but is only avoidable at the instance of his sons, for the alienation may be binding on the sons if it was made for necessity or for the benefit of the joint Hindu family or for any other reason by which under Hindu law such an alienation may bind the sons. It is, therefore, necessary for the plaintiff to get rid of the voidable document by having the Court declare that in the circumstances of the case it should be avoided at the plaintiffs request. The possession which he then claims flows from and is a necessary consequence of the relief claimed, namely, that the document does not stand in the way of the plaintiff. The remedy of possession, therefore, is essentially a consequential relief flowing from and arising out of the declaration sought by the plaintiff.
16. Attention was drawn to two judgments of this Court reported as Jagdish v. Jagat Pal and Ors. 2002(2) P.L.J. 268 and Bagrawat v. Mehar Chand and Ors. 2001(2) P.L.J. 2004 to contend that ad valorem as per sale consideration in sale deed is required to be affixed. The conclusions drawn in the said judgments that court fee in terms of Article 1 of Schedule I of the Court Fees Act is payable or as per sale consideration in the sale deed runs counter to the judgment in prabhu's Shamsher Singh's and Niranjan Kaur's case (supra). Therefore, bound by the said judgments, it is held that the court fee is required to be paid in terms of Section 7(iv)(c) of the Act as quantified under Section 7(v) of the Act.
17. However, it appears that the learned Trial Court has not taken into consideration the amendment made in the State of Haryana vide Act No. 22 of 1974, therefore, the learned Trial Court shall redetermine the amount of court fee payable in terms thereof.
18. Civil Revision stands disposed of accordingly.