In a partition suit, if a non-executant seeks possession by way of partition of the property to the extent of their share, they are liable to pay the ad valorem court fee to the extent of their share only and not on the entire value of the suit property.

Rakesh Kumar Jain, J.

1. This petition is filed by plaintiff No. 1, who had filed the suit for declaration that she along with other plaintiffs are Class I heirs of Late Narang Singh and have equal rights with the defendants in the estate (subject matter of the suit) left behind by Narang Singh; further sought declaration that the registered gift deed bearing vasika No. 7446 dated 10.11.2006 executed by Narang Singh in favour of defendant No. 1-Surjit Kaur (Widow of Narang Singh) is illegal; mutation No. 2037 sanctioned in favour of defendant No. 1 on the basis of the said gift deed by order of the Assistant Collector 2nd Grade dated 23.01.2007 is also illegal, null and void; any entry incorporated in the revenue records on the basis of the said mutation is also liable to be corrected in the name of the heirs of Narang Singh oh the basis of natural succession and prayed for consequential relief of separate possession by way of partition of the property involved in the suit and for permanent injunction to restrain the defendants from alienating or transferring the suit property in any manner during the pendency of the suit. Defendant No. 1 filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") for rejection of the plaint for want of affixation of ad valorem court fee or for direction to the plaintiffs to affix the ad valorem court fee within the stipulated time. The said application was contested by filing reply and the learned trial Court, vide its impugned order dated 31.10.2013, allowed the application directing the plaintiffs to affix the ad valorem court fee on the amount of Rs. 23 lacs i.e. value of the entire property involved in the gift deed.

2. At the time of notice of motion, this Court directed the trial Court to carry on the proceedings without dismissing the suit for want of Court fee till further orders.

3. Learned counsel for the petitioner has submitted that the trial Court has committed an error while directing the plaintiffs to pay the ad valorem court fee on the entire value of the property involved in the gift deed though the plaintiffs have prayed for possession of the property in dispute by way of partition and as such they are liable to pay the ad valorem court fee only to the extent of their share. In support of his contention, he has relied upon the following decisions:-

"1. Kailash Devi Vs. D.A.V. Senior Secondary School.

2. Sh. Sudershan Kumar Seth Vs. Sh. Pawan Kumar Seth and Others.

3. Smt. Rani Devi Vs. Ashok Kumar Nagi and Another."

4. On the other hand, learned counsel for the respondents has submitted that the plaintiffs have sought declaration for the cancellation of the gift deed in which the value of the property involved is Rs. 23 lacs and are liable to pay the ad valorem court fee on the entire value of the property involved in the gift deed and not to the extent of their share only. In this regard, she has relied upon a judgment of the Supreme Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, AIR 2010 SC 2807.

5. I have heard learned counsel for the parties and perused the record.

6. Undisputedly, as per Order 7 Rule 11(b) of the CPC, the plaint can be rejected if the ad valorem court fee is not affixed or time prescribed for making the deficiency of the Court fee good is not availed.

7. In Suhrid Singh @ Sardool Singh's case (supra), the Hon'ble Apex Court has explained that in case where executant of a deed wants the deed to be annulled, he has to seek cancellation and if non-executant seeks annulment, he has to seek declaration that the deed is invalid or non est. It has been further explained that if the executant of the deed seeks cancellation, he has to pay the ad valorem Court fee on the consideration stated in the plaint and if the non-executant, in possession, sues for declaration then he would have to pay the fixed Court fee of Rs. 19.50/- prescribed under Article 17(iii) of Second Sc