1. Civil writ petition challenging court fee order on suit seeking declaration that sale deed is null and void qua plaintiff's rights. (Para 1 , 2 , 3 )
Back
Next 
2026 Supreme(Raj) 614
HIGH COURT OF JUDICATURE FOR RAJASTHAN, BENCH AT JAIPUR
BIPIN GUPTA, J.
Pandit Shyobuxrai Arichwal Charitable Trust, Through Trustee Vishnudatt Sharma, Son Of Late Biharilal Sharma - Petitioner
Versus
Anita Sharma, W/o. Late Praveen Sharma – Respondent
S.B. Civil Writ Petition No. 2794 of 2026
Decided On : 17-02-2026
Advocates Appeared:
For the Petitioner: Mr. Yogendra Singh Rajawat.
For the Petitioner: Mr. Yogendra Singh Rajawat.
A non-executant seeking a declaration that a sale deed is null and void is not liable to pay court fees on the sale consideration under cancellation rules. For agricultural land, fees are determined by the rent rate under Section 7(2)(a) of the Rajasthan Court Fees and Suit Valuation Act.
Headnote:(A) Rajasthan Court Fees and Suit Valuation Act, 1961 - Sections 38 and 7(2)(a) - Distinction between cancellation of a deed and a declaration - Where the executant of a deed seeks its annulment, they must seek cancellation and pay ad-valorem court fee on the consideration; however, if a non-executant seeks annulment, they must seek a declaration that the deed is invalid, non-est, or illegal, and the court fee is computed differently (Paras 3, 7)
(B) Suit for declaration - Agricultural Land - Where the disputed property is agricultural land and the plaintiff is not the executant of the deed they wish to declare null and void, the court fee is payable twenty-five times the rent rate sanctioned during the last settlement, as provided under Section 7(2)(a) of the Act, rather than ad-valorem fees on the sale consideration under Section 38 (Paras 4, 7)
Facts of the case:
A writ petition was filed challenging a trial court order that directed a plaintiff to pay court fees based on the valuation of a sale deed they sought to have declared null and void. The plaintiff was not a party to the sale deed, and the property in dispute was agricultural land.
Findings of Court:
The court found that the relief sought was for a declaration and not for the cancellation of the sale deed, as the plaintiff was not an executant of the instrument. Therefore, the direction to pay court fees under Section 38 of the Act, which applies to the cancellation of instruments, was unsustainable.
Issues: Whether a non-executant seeking a declaration that a sale deed is null and void regarding their rights should be required to pay court fees based on the sale consideration as if they were seeking the cancellation of the instrument.
Ratio Decidendi: A non-executant does not seek the cancellation of a deed but rather a declaration that it is void. In suits involving agricultural land where a non-executant seeks such a declaration, court fees must be calculated under Section 7(2)(a) of the Rajasthan Court Fees and Suit Valuation Act, 1961, based on the rent rate, and not under Section 38 based on the sale consideration.
Result: Writ petition disposed of; trial court order set aside.
Legal Category Hierarchy
Table of Contents
2. Petitioner argued no cancellation suit needed as non-executant, court fee under declaration provisions; respondent court directed fee under Section 38. (Para 2 , 3 , 4 )
3. Court found relief sought is declaration, not cancellation; plaintiff non-executant; court fee should be computed under Section 7(2)(a) of Act. (Para 6 , 7 )
4. Non-executant seeking declaration that deed is null and void need not pay ad valorem court fee on sale consideration; fee under Section 7(2)(a). (Para 3 , 7 )
5. Writ allowed; trial court order set aside; directed to reconsider court fees under Sections 7(2)(a) and 7(2)(b) of Act. (Para 8 , 9 , 10 , 11 )
6. When does a non-executant of a deed need to seek cancellation rather than a declaration?
A non-executant need not seek cancellation of a deed; he can seek a declaration that the deed is invalid, non-est, or not binding on him. (Para 3 )
7. What court fee is payable by a non-executant seeking declaration that a deed is null and void?
If not in possession and not seeking consequential relief, fixed court fee applies; for agricultural land, fee is twenty-five times the rent rate under Section 7(2)(a). (Para 3 , 4 , 7 )
8. Is court fee under Section 38 payable when relief is only declaration of nullity?
No. Section 38 applies to suits for cancellation of instruments, not to declarations by non-executants; directing such fee is erroneous. (Para 3 , 7 )
JUDGMENT :
BIPIN GUPTA, J.
1. The present civil writ petition has been filed challenging the order dated 09.12.2025, passed by the learned District Judge, Jhunjhunu, whereby upon objections being raised by the Office, the learned trial Court directed the plaintiff-petitioner to pay requisite Court fees on the valuation of sale deed, which has sought to be declared as ‘null and void’ to the extent of the rights of the plaintiff-petitioner.
2. Learned counsel for the petitioner submits that the petitioner has not filed a suit for cancellation of the sale deed, as he was not a party to the said instrument. He further submits that as the petitioner is neither an executant nor a party to the sale deed, he is not required to seek its cancellation. Rather, as per the prayer clause of the suit, the petitioner has only sought a declaration that the sale deed be declared ‘null and void’ qua his rights.
3. Learned counsel for the petitioner further submits that the learned trial Court has committed an error while directing the petitioner to pay Court Fees as payable wherein a suit for cancellation of an instrument is preferred under Section 38 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter referred to as ‘the Act of 1961’). In support of his submission, learned counsel has relied upon the judgment passed by the Hon’ble Apex Court in Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors; 2010 (12) SCC 112, held as under:
“6. 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 nonest/ 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 the value of the property calculated in the manner provided for by clause (v) of Section 7.
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv) (c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court f
