The court clarified that a plaintiff seeking a declaration of ownership must pay ad valorem court fee only on the portion of the property they seek to annul, not the entire value.

JUDGMENT

Mr. Deepak Gupta, J.

Plaintiff (petitioner herein) and defendant (respondent herein) are husband and wife. They are in litigation before Family Court, Faridabad.

2.1 Petitioner is aggrieved by an order dated 12.04.2024 (Annexure P1) passed by ld. Principal Judge, Family Court, Faridabad, whereby in an application moved by the respondent under Order 7, Rule 11 CPC for rejection of the plaint, he has been asked to pay ad valorem Court fee on the property in question.

2.2 Subject matter of the suit is a residential house, which was purchased on 12.01.2001 in the name of petitioner and respondent in the ratio of 50:50. It was sold by both of them to raise funds to construct a school vide sale deed dated 19.01.2009, but later on, the suit property was again purchased by them in the ratio of 50:50 by way of sale deed dated 13.02.2014 for consideration of Rs. 1,50,00,000/-. Claiming that he is the exclusive owner of the suit property and that he had paid the entire sale consideration for repurchasing of the same in 2014, but out of love and affection, the name of his wife-respondent was also inserted in the sale deed, petitioner-plaintiff sought a declaration to that effect. He also prayed for a decree of permanent injunction to restrain the respondent-defendant to interfere in his possession.

2.3 After appearance, respondent-defendant moved an application under Order 7, Rule 11 CPC to reject the plaint on account of non-payment of ad valorem Court fee.

2.4 By way of the impugned order dated 12.04.2024, the learned Principal Judge of the Family Court allowed the application to the extent that plaintiff was asked to pay ad valorem court fee on the suit property in the light of a decision of Hon'ble Supreme Court rendered in Suhrid Singh @ Sardool Singh v. Randhir Singh, 2010 AIR Supreme Court 2807.

3. The short submission made by learned counsel for the petitioner is that requirement to pay the ad valorem Court fee arises only when executant seeks cancellation or annulment of an instrument or when he is seeking possession of the suit property, but in this case, petitioner-plaintiff is only seeking a decree of declaration to the effect that he is the exclusive owner of the property in dispute and the decree of permanent injunction so as to restrain the defendant from interfering in his possession. He is neither seeking cancellation /annulment of the sale deed nor seeking possession of the suit property and in these circumstances, decision in the case of Suhrid Singh @ Sardool Singh (supra) has been wrongly applied by the trial court. Ld. Counsel referred to Shefali Grover v. Pawan Grover, Law Finder Doc Id # 2404294

4. On the other hand, the contention raised by ld. counsel for the respondent is that in whatever form the relief claimed by the petitioner is couched, his real intention is required to be seen and that in the present case, in the garb of seeking declaration and permanent injunction, plaintiff wants annulment of the sale deed to the extent of 50% share in the suit property and therefore, is liable to pay ad valorem court fee on the entire value of the suit property. Reliance is placed on full bench judgment of this court rendered in Niranjan Kaur v. Nirbigan Kaur AIR 1981 P&H 368, apart from Suhrid's case (supra).

5. I have considered submissions of both the sides and have appraised the record carefully.

6. As will be evident on perusal of the plaint, the actual relief claimed by the plaintiff is that he is the real owner of the entire property and that defendant-respondent-his wife is recorded to be owner only as a benamidar to the extent of 50% share. The said relief can be granted only by annulling the sale deed in favour of defendant to the extent of her share as recorded in sale deed and so, the relief is the annulment of the sale deed to the extent of 50 %.

7. The first question is whether any such declaration as sought by the plaintiff; and the sale deed in question is hit by the provision of Prohibition of B