In a suit for cancellation of a sale deed, ad-valorem court fee is payable on the sale consideration.

J.S. Khehar, J. - The petitioners-plaintiffs filed a suit for declaration to the effect that the sale of the suit land measuring 19 kanals 17 marlas, 4 kanals 1 marla, 3 kanals 5 marlas and 12 kanals 11 marlas in various killa numbers situated in village Kuttabagh, Tehsil Ellenabad, District Sirsa, for a consideration Rs. 1,62,000/- by defendant No. 2 in favour of defendant No. 1 vide a registered sale deed No. 640 dated 24th July, 1997 was "wrong, illegal, void, ineffective, against the rights of the plaintiffs, without consideration, fraudulent in order to defeat the rights of the plaintiffs and being the effect of mis-representation, coercion and without legal necessity."

2. Valuation of the suit for the purposes of court fee and jurisdiction was assessed at Rs. 200/- by the petitioners-plaintiffs and accordingly court fee valuing at Rs. 25/- was affixed on the plaint. An application was filed by the defendants under Order 7 rule 11 of the Code of Civil Procedure contesting the court-fee affixed. As per the respondents-defendants the plaintiffs-petitioners have challenged the validity of the sale-deed dated 24th July, 1997 by which defendant No. 2 had transferred the suit land in favour of defendant No. 1 for a consideration of Rs. 1,62,000/- and accordingly was liable to affix ad-valorem court fee. According to the claim of the defendants, the title of the property has already passed to defendant No. 1 by virtue of the aforesaid registered sale deed and it is only upon cancellation of the sale deed dated 24th July, 1997 that the suit land could vest in the plaintiffs, in other words, till the cancellation of the sale deed the property will continue to vest with defendant No. 1. Accepting the plea of the respondents-defendants, the trial Court vide its order dated 3rd June, 1999 held that ad-valorem court fee was payable and accordingly the petitioners-plaintiffs were directed to pay ad-valorem court fee on the sale consideration of Rs. 1,62,000/-. It is the aforesaid order of the trial Court which is impugned in the instant civil revision.

3. While determining the aforesaid controversy, the trial Court relied in the determination of this Court in Anil Rishi v. Gurbaksh Singh, 1998(2) Rev. L.R. 390. This Court in the aforesaid case while relying upon the decision of Shamsher Singh v. Rajinder Prashad and others, A.I.R. 1973 S.C. 2384 (Supreme Court), and Full Bench decision of this Court in Niranjan Kaur v. Nirbigan Kaur (Minor), 1981 Rev. L.R. 428, arrived at the conclusion that the Court in deciding the question of court fee should look into the allegations in the plaint and determine the nature of the substantive relief prayed for.

4. In Shamsher Singhs case (supra), the plaintiffs father executed a mortgagee deed by claiming himself to be sole owner of the mortgaged property. On the basis of the aforesaid deed he filed a suit and obtained a decree. The mortgaged then tried to take out execution proceedings for the sale of the mortgaged property. The sons then filed a suit for a declaration that the mortgage was null and void and ineffective as against them as the property was a joint Hindu Family property. On the plaint filed by the sons they paid/filed court fee of Rs. 19.50 which was objected to. The trial Court directed the plaintiffs to pay ad-valorem court fee. The plaintiffs thereupon brought the matter of this Court. This Court set aside the order of the trial Court and agreed that the plaintiffs by taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree. The Apex Court, however, did not agree with the determination of this Court. The plaintiffs were accordingly permitted time to make good the court-fee. The Honble Supreme Court while deciding Shamsher Singhs case (supra) observed as under :-

"As regards the main question that arises for decision it appears to us that while the court-fee payable on a plaint is certainly to be decided on the basis of the allegatio