IMPORTANT POINT
Court Fee – Execution of sale deed challenged on ground that executants was not of sound mind – Trial Court ought to decide question of mental fitness of executants first then pass orders regarding whether ad valorem Court fee is payable or not.

AMOL RATTAN SINGH, J.

1. By this petition, the petitioners (defendants in the suit in question) challenge the order of the learned Civil Judge (Junior Division), Bathinda, dated 17.09.2016, by which their application under Order VII Rule 11 CPC, has been dismissed; holding therein that as regards the question of whether the plaintiff Tej Kaur (respondent no. 1) is of sound mind or not, that would be considered after evidence is led in that regard and as regards the question of payment of Court fee, ad valorem, the plaintiff having contended that she is still in possession of the suit property despite the sale deed which has been challenged, Court fee ad valorem is not liable to be paid.

2. Learned counsel for the petitioners-defendants submits that, firstly, the suit having been shown to be filed by Tej Kaur, who is the executant of the sale deed, but through her daughter on the ground that Tej Kaur is not mentally fit, it is the question of her mental fitness that should have been decided at the outset by the learned Civil Judge and only thereafter, could any other order have been passed by that Court.

3. On the question of payment of Court fee ad valorem, he relies upon a judgment of the Supreme Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and others 2010 AIR (SC) 2807, wherein it has been held as follows:-

“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 non-est/ 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 advalorem 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.”

4. Hence, the contention of learned counsel for the petitioner is that Tej Kaur being the plaintiff who has challenged the sale deed actually executed by her, she was bound to pay Court fee ad valorem and not simply Rs. 19.50/-. He also draws attention to Order 32 Rule 15 of the CPC, which reads as under:-

“[15. Rules Ito 14 (except rule 2A) to apply to persons of unsound mind.- Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged,