IQBAL KAUR Vs. CHANAN SINGH

JUDGEMENT

(1.) Dewan Singh, the predecessor-in-interest of the plaintiff-petitioners, filed a suit for a declaration to the effect that the registered gift-deed alleged to have been executed by himself in favour of defendant No. 1 was a mere paper transaction and was vitiated by fraud, undue influence, etc., and was not binding on the plaintiffs. Consequential relief by way of permanent injunction was also claimed by him to restrain defendant No. 1 (donee) from alienating the gifted property in any manner to any other person. The donee having alienated a part of the property, the alienees were also impleaded as defendants. One of the objections raised by the defendant-respondents was that the suit is not valued properly for purposes of Court-fee and jurisdiction. In paragraph 9 of the plaint the value of the suit for purposes of jurisdiction was fixed at thirty times the land revenue and the value for purposes of Court-fee was fixed at ten times the land revenue. The dispute between the parties on this point was put by the trial Court into preliminary issue No. 2 "Whether the suit is properly valued for the purposes of Court-fee and jurisdiction."

(2.) By his order under revision dated December 22, 1976, Shri S.S. Kamal, Subordinate Judge, Jullundur, has held that the suit being by the donor himself and the claim being that the gift-deed was void and absolutely ineffective, the plaintiffs were bound to seek further relief of possession of the suit-land which was admittedly not in his possession. He held that Section 7(iv)(c) of the Court-Fees Act applied and ad valorem Court-fee should be paid by the plaintiff on the plaint of the suit.

(3.) Mr. I.K. Mehta, the learned counsel for the plaintiff-petitioners, does not dispute the proposition of law that when the plaint of the suit is read as a whole it implies a claim for cancellation of the gift-deed. He, however, submits that though the trial Court has correctly applied the law and held that the suit is governed by Section 7(iv)(c) of the Act he has committed material illegality in holding that ad volorem Court-fee has to be paid on the plaint. He refers to the Punjab Amendment to Section 7(iv)(c) whereby a proviso has been added, under which Court-fee on suits covered by that provision which relate to land has to be computed in the manner given in Section 7(v) of the Act. Counsel submits that the subject-matter of the suit is agricultural land, and, therefore, its value has to be fixed under Section 7(v)(a) of the Act at ten times the land revenue to which the land is assessed. On the other hand, the argument of the learned counsel for the respondents is that once the suit is taken to be for cancellation of the gift-deed, Court-fee on its plaint has to be paid under Article 1 of schedule 1 at the market value of the property. Counsel for the respondents has relied on the Full Bench judgment of the Lahore High Court in Mt. Zeb-ul-Nisa and others V. Chaudhri Din Mohammad and others, 1941 AIR(Lah) 97 for the propositions, namely, (i) that the substance of the plaint must be considered and the mere fact that the relief as stated in the prayer clause is expressed in a declaratory form would not necessarily show that the suit is for mere declaration and no more and (ii) that in a suit which is deemed to be for cancellation of certain alienations, though couched in the form of a declaration, the Court-fee is payable under the residuary Article 1 of schedule 1 of the Act. There is no quarrel with the first proposition which has since been settled even by their Lordships of the Supreme Court in Shamsher Singh V. Rajinder Prashad and others, 1973 AIR(SC) 2384On the second point, the learned Judges of the Lahore High Court made it clear that they were holding Article 1 of Schedule 1 to be applicable to the case on the peculiar and particular facts of the case before them.