# Ashok Kumar Singh v. Smt. Meera Rathore @ Sitanshu & Ors

- **Citation:** (2016) 3 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-16
- **Bench:** Krishna Murari, Raghvendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-singh-v-smt-meera-rathore-sitanshu-ors-43430
- **Pages:** 7

## Headnote

First appeal from order - Court Fees valuation - suit for declaration that sale deed void/ineffective
- s.7(iv-a) Court Fees Act (U.P. AMDT.) Attracted not art.17(iii) sch.ii - ad valorem fee payable [paras
2-5, 8-10, 17-19].

Court fees - declaratory suit for cancellation/nullity of sale deed securing immovable property - U.P.
Amendment overrides residuary art.17(iii) [paras 11-16]. [paras 8-11]),

S.7(IV-A) specifically governs suits declaring instruments void securing property -- art.17(iii)
residuary only if no other provision--FAFO against order of Civil Judge directing plaintiff to pay ad
valorem court fee u/s 7(iv-a) court fees act (U.P. Amendment) in suit declaring sale deed void

Appeal Dismissed.

List of Cases cited:

## Text

3 All. Ashok Kumar Singh Vs Smt. Meera Rathore @ Sitanshu & Ors.
361

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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2015

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE RAGHVENDRA KUMAR, J.

First Appeal From Order No. - 2795 of 2015

Ashok Kumar Singh ...Appellant
Versus
Smt. Meera Rathore @ Sitanshu & Ors ...Respondents

Counsel for the Appellant:
Ajay Kumar Srivastava

Counsel for Respondents:
Bharat Singh

First appeal from order - Court Fees valuation - suit for declaration that sale deed void/ineffective
- s.7(iv-a) Court Fees Act (U.P. AMDT.) Attracted not art.17(iii) sch.ii - ad valorem fee payable [paras
2-5, 8-10, 17-19].

Court fees - declaratory suit for cancellation/nullity of sale deed securing immovable property - U.P.
Amendment overrides residuary art.17(iii) [paras 11-16]. [paras 8-11]),

S.7(IV-A) specifically governs suits declaring instruments void securing property -- art.17(iii)
residuary only if no other provision--FAFO against order of Civil Judge directing plaintiff to pay ad
valorem court fee u/s 7(iv-a) court fees act (U.P. Amendment) in suit declaring sale deed void

Appeal Dismissed.

List of Cases cited:
1. Smt. Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC 1000 (DB) = AIR 1992 All 254
2. Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 Law Suit (SC) 104
3. Shailendra Bhardwaj and others Vs. Chandra Pal and another, (2013) 1 Supreme Court Cases 579
4. State of U.P. Vs. Ramkrishan Burman, AIR 1971 SC 87 : (1971) All LJ 1
(Delivered by Hon'ble Raghvendra Kumar, J.)

1. Heard Sri Ram Krishna Kohli holding brief of Sri Ajay Kumar Srivastava for the
appellant and Sri Vikash Rana holding brief of Sri Bharat Singh for Caveator- respondent
no. 7.

2. Under assail in the present First Appeal From Order is the order dated 9.9.2015
passed by Civil Judge (Senior Division), District Budaun in Original Suit No. 240 of 2014
362 INDIAN LAW REPORTS ALLAHABAD SERIES
(Ashok Kumar Singh Vs.Meera Rathore and others) whereby Issue No.3 relating to payment
of Court Fees has been decided against the plaintiff and he has been directed to comply with
the order and pay the Court Fees as per Section 7 (IV-A) of the Court Fees Act.

3. The brief facts of the plaint are as follows:

The plaintiff has claimed himself to be the owner in possession of a double storied
Kothi, the description of which is contained in paragraph 1 of the plaint which has been
assigned the nomenclature of the property in dispute in further part of the plaint. The
disputed Kothi belonged to late Mohan Singh who executed a registered will deed dated
22.8.1997 in favour of the plaintiff alleged to be first and the last will with respect to Kothi
in dispute. The plaintiff has given the details of successor of deceased Hira Singh in
paragraph No.3 of the plaint. Mohan Singh died on 14.12.2003 whereupon registered will
deed dated 22.8.1997 came into operation. The plaintiff is owner in possession of the Kothi
in dispute and his name has been mutated as owner in Nagar Palika Parishad, Budaun. The
deceased Mohan Singh had executed will deed dated 22.8.1997 with respect to agricultural
land Khasra No. 82, area 9.347 Hect., Khasra land No. 104 area 0.417 Hect., Khasra land
No.278 area 0.202 Hect., Khasra land No.305 Minjumla (part) area 0.190 Hect., Khasra land
No. 306 area 0.810 Hect., Khasra land No. 345 area 0.278 Hect. and Khasra land No.80/371
area 0.051 Hect. whereby the half of the said landed property came to the share of the
plaintiff and half went to the share of his nephew Virendra Pal Singh which is first and last
will with respect to landed property situate Gram Gurai, hamlet Pargana Ujahni, Tehsil and
District Budaun. Virendra Pal Singh died on 8.8.2000, during the life time of Mohan Singh
who died on 14.12.2003. As such the name of the plaintiff was mutated in revenue record in
place of deceased Mohan Singh. Mohan Singh during his life time on 8.3.2003 executed an
unregistered will deed of landed property bearing Khasra No. 116 area 0.202 Hect.and land
Khasra No. 205 area 0.316 Hect. situate at Gram Badarpur, Pargana Ujahni, Tehsil and
district Budaun, which is comprised of a grove yard, one building which is alleged to be the
first and last will whereby after death of Mohan Singh the property referred to above was
mutated in the name of plaintiff in revenue record. The wife of Mohan Singh died on
6.1.2000 during his life time without having any issue. Mohan Singh, vide registered
adoption deed dated 27.4.2000, adopted defendant no. 1, daughter of the plaintiff named as
Sitanshu whereafter the name of defendant No. 1 was changed as Meera Rathore in place of
Sitanshu. The defendant no.1 developed relation with a muslim youth named as Abrar
Kamal and solemnized marriage with him. The plaintiff came to know all above referred
will deed through one of the witness Sri Mahendra Pratap Singh whereafter his name was
mutated in the records. Defendant No. 1 showing herself to be the owner of the disputed
Kothi executed a sale deed in favour of defendant nos. 2 to 7 for which she has no legal
authority. The boundaries and description of the property has wrongly been alleged in the
sale deed. No consideration amount passed in favour of the defendant no. 1 since sale deed
was never given effect to hence defendant no.1 had no right to transfer the possession of the
property in dispute in favour of defendant nos. 2 to 7. The sale deed dated 9.6.2014 has been
assailed on the ground mentioned in paragraph 18 of the plaint. The defendant nos. 2 to 7 in
collusion with defendant no.1 tried to take the possession of the property in dispute ( Kothi)
by virtue of sale deed dated 9.6.2014 which could not be materialized due to intervention of
3 All. Ashok Kumar Singh Vs Smt. Meera Rathore @ Sitanshu & Ors.
363
mohalla people. The plaintiff asked the defendants to get sale deed cancelled since
defendants did not agree, hence cause of action accrued in favour of the plaintiff. After
obtaining the copy of sale deed the plaintiff came to know about real facts. The defendants
finally refused on 10.6.2014 to get document cancelled. The valuation of the suit has made
on the basis of the market value of the property for Rs. One Crore and the Court Fee has
been paid by the plaintiff in terms of Art. 17(iii) of Schedule -II of the Court Fees Act on the
relief of declaration prayed that registered sale deed dated 6.9.2014 be declared as void and
ineffective.

4. The suit has been contested on behalf of the defendants whereupon issue no. 3
relating to valuation of the suit and the payment of the Court Fees was framed.

5. On behalf of the appellant, the validity of the impugned judgment and order has been
challenged on the inter alias grounds that the Court below has not rightly appreciated the
averments ( pleading) contained in the plaint. The plaintiff is owner in possession of the
property in dispute and has rightly paid the court fee in terms of Article 17 (iii) of Schedule
II of the Court Fees Act. The impugned judgment and order has been passed in violation of
the Article 17(iii) of Schedule II of the Court Fees Act and, thus, is illegal and without
jurisdiction.

6. Learned counsel for the appellant has placed reliance upon the law laid down by this
Court in Smt. Shefali Roy Vs. Hero Jaswant Dass, 1992 AWC, 1000 (DB) = AIR 1992 All
254 and further placed reliance in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and
others, 2010 Law Suit (SC) 104.

7. Refuting to the submission of learned counsel for the appellant, it has been submitted
on behalf of defendant-respondents that in view of the pleadings and the relief clause the
Court-fee in the instant case is required to be paid in accordance with Section 7 (IV-A) of
the Court Fees Act, as amended by U.P.Amendment Act. It has further been submitted that
in the relief clause it has been prayed that consequent upon the declaration in favour of the
plaintiff a direction be issued to Sub Registrar for making necessary entries in the record.

8. The short question involved herein is whether in a suit for declaration of sale deed
dated 9.6.2014 as void and ineffective would fall under Section 7 (IV-A) of Court Fees Act
as amended by U.P. Amendment or Art. 17 (iii) of Schedule-II of the Court Fees Act would
be attracted.

9. The trial court has taken a view that plaintiff-appellant should have paid the court-fee
as per Section 7(IV-A) of the Court Fees Act. Hence this appeal.

10. From the perusal of the relevant clause it is evident that plaintiff has prayed for
declaration of sale deed dated 9.6.204 as void and ineffective and has further clubbed a
prayer to issue a direction to the Sub Registrar for making the necessary entries in the record
consequent upon declaration in his favour. These reliefs have been clubbed together whereas
364 INDIAN LAW REPORTS ALLAHABAD SERIES
it could have safely been segregated and the subsequent part relating to direction is
consequential to the relief of declaration.

11. Learned counsel for the appellant has placed reliance upon the proposition of law
laid down by Co-ordinate Bench of this Court in Smt. Shefali Roy Vs. Hero Jaswant Dass,
1992 AWC, 1000 (DB) = AIR 1992 All 254. The relevant paragraphs are being reproduced
herein below:

19. Before dealing with this aspect, it is necessary to reproduce the relevant
provisions of S.7(iv-A) for brevity of the case:

"In a suit for cancellation of a decree for money or other property having a money
value or other document securing money or other property having such value, according to
the value of the subject-matter of the suit and such value shall be deemed to be....."

20. No doubt the aforesaid provision is emphatic dealing with the point in issue.
However, words used therein "other document securing money or other property having
such value" require interpretation so as to find out pith and substance to this provision, that
is what is the intention of legislature in putting the word "securing". This word "securing" is
not only related to the money part of the decree but other property as well as used in this
provision, and therefore word "securing" relates to recovery or possession of the other
property, otherwise putting this word "securing" in this provision becomes meaningless. As
such where money part or any other property is claimed by way of securing it, the plaintiff is
certainly required to pay ad valorem Court-fee i.e. 1/5th of the value of subject-matter of the
property. But where no relief is claimed in terms of the above referred provision, then
certainly payment of Court-fee shall be governed under Art. 17, Schedule II of the Courtfees Act.

21. In the instance case no relief is claimed in terms of the above referred
provision by the plaitniff, but simply a declaration is sought that the alleged sale deed be
declared null and void.

22. The payment of Court-fee depends upon the averments of the plaint and the
relief claimed and not on the averments of the written statement. A suit for mere declaration
that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case
and incidentally claiming a declaration that the alleged sale deed be declared null and void,
does not fall within the ambit of Section 7(iv-A) (State of U.P. Amendment). See State of U.P.
v. Ramkrishan Burman, AIR 1971 SC 87 : (1971 All LJ 1), wherein considering this State of
U.P. Amendment their Lordships of the Apex Court ruled that in a suit for mere declaration
that the plaintiff is owner of certain properties, this U.P. Amendment is not attracted for the
purposes of payment of Court-fee. According to their Lordships this U.P. Amendment relates
to a decree for recovery of money or other property. It however, does not include a decree
concerning title to money or other property, and, hence where mere declaration is involved,
the payment of Court-fee is governed under Art. 17, Schedule II of the Court-fees Act. In
view of the decision in Ramkrishan Burman's case (supra), we are of the opinion that the
plaintiff has paid proper Court-fee.
3 All. Ashok Kumar Singh Vs Smt. Meera Rathore @ Sitanshu & Ors.
365

12. He has further placed reliance upon the guidelines issued by Hon'ble Supreme
Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, 2010 Law Suit
(SC) 104. Admittedly the law laid down by the Hon'ble Apex Court in Suhrid Singh @
Sardool Singh (supra) is in relation to the Court Fees Act as applicable in the State of Punjab
and Haryana for the simple reason that the above proposition appears to be of no avail in
this case and more so the U.P. Amendment Act of Court Fees Act 1870 was not considered.

13. In view of the observations made by Coordinate bench of this Court in Smt. Shefali
Roy Vs. Hero Jaswant Dass and others (Supra), it has been vehemently contended that the
case of the appellant is squarely covered by the law propounded by the Court. As such, the
appellant has rightly valued the suit and has paid correct amount of court fee payable as per
Art. 17 (iii) of the Court Fees Act 1870, as amended by U.P.Amendment Act.

14. The position has now been crystallized that the matter relating to valuation of suit
and payment of Court-fee solely rests upon the pleadings and the relief claimed in a
particular suit.

15. The similar controversy has been considered by Hon'ble Apex Court. The principle
regarding payment of Court-fee has been dealt by Hon'ble Apex Court in case of Shailendra
Bhardwaj and others vs. Chandra Pal and another (2013) 1 Supreme Court Cases 579.
The relevant paragraphs dealing with the controversy is being reproduced herein below :

"8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of
Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a
declaratory decree without any consequential relief and there is no other provision under
the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the
Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to
obtain a declaratory decree without consequential reliefs and there is no other provision
under the Act for payment of fee relating to relief claimed. If there is no other provision
under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring
void or voidable a will or sale deed on the question of payment of court fees, then Article
17(iii) of Schedule II shall be applicable. But if such relief is covered by any other
provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable.
On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that
Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or
adjudging/declaring null and void decree for money or an instrument securing money or
other property having such value.

9.The suit, in this case, was filed after the death of the testator and, therefore, the
suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P.
Amendment Act specifically provides that payment of court fee in case where the suit is for
or involving cancellation or adjudging/declaring null and void decree for money or an
instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P.
Amendment Act, therefore, is applicable in the present case, despite the fact that no
366 INDIAN LAW REPORTS ALLAHABAD SERIES
consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P.
Amendment Act, the court fees have to be commuted according to the value of the subject
matter and the trial Court as well as the High Court have correctly held so.

10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not
applicable to the facts of the present case. First of all, this Court had no occasion to
examine the scope of the U.P. Amendment Act. That was a case in which this Court was
dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of
Punjab. The position that we get in the State of Punjab is entirely different from the State of
U.P. and the effect of the U.P. Amendment Act was not an issue which arose for
consideration in that case. Consequently, in our view, the said judgment would not apply to
the present case."

11. Plaintiff, in the instant case, valued the suit at Rs.30 Lakhs for the purpose of
pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court
fee of Rs.200/- under Article 17(iii) of Schedule II of the Court Fees Act. Plaintiff had not
noticed the fact that the above mentioned article stood amended by the State, by adding the
words "not otherwise provided by this Act". Since Section 7(iv-A) of the U.P. Amended Act
specifically provides for payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring void or voidable an instrument securing property
having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be
applicable.

16. From the perusal of proposition of law laid down in Shailendra Bhardwaj Vs.
Chandra Pal (Supra), it can safely be deciphered that Court fee in declaratory suit with no
consequential relief is to be paid in accordance with law under Article 17(iii) of Schedule-II
of the Court Fees Act of 1870 where there is no provision elsewhere in the Act for such
suits. It clearly indicates that the provisions of Article 17 (iii) of the Schedule-II of Court
Fees Act is residuary in nature and is attracted only in respect of category of cases not
otherwise provided in the Act. The amending provisions of Court Fees Act has been well
appreciated by Hon'ble Apex Court and it categorically lays down payment of Court fee in
the cases where suit is for or involving cancellation or adjudging/declaring null and
void,decree for money or instrument under Article 17 (iii) of the Court Fees Act would not
apply. The U.P. Amendment Act, therefore, is applicable in the present case despite the fact
that no consequential relief has been claimed. The law laid down by the coordinate Bench of
this Court in Smt.Shefali Roy Vs. Hero Jaswant Dass (supra) would not be attracted in
view of Shailendra Bhardwaj case (supra).

17. In view of the categorical guidelines of the Apex Court propounded in the case
referred to above, the learned Court below has rightly directed the plaintiff-appellant to pay
the Court fee in terms of Article 7(IV-A) of Court Fee Act 1870 as amended by U.P.
Amendment Act.

18. In view of the reasons stated above, we are of the opinion that learned court below
has rightly recorded the finding in respect to valuation of suit and for payment of court fee
3 All. M/S Hindustan Petroleum Corporation Ltd. Vs Smt. Reeta Anand
367
 in accordance with Section 7(IV-A) of Court Fees Act, 1870 and has not committed any
error of law.

19. We are of the considered view that no interference is required in the findings
returned by the court below.

20. The appeal is bereft of merits and is, accordingly, dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2015

BEFORE

THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

First Appeal From Order No. - 2925 of 2015

M/S Hindustan Petroleum Corporation Ltd. ...Appellant
Versus
Smt. Reeta Anand ...Respondent

Counsel for the Appellant:
Vikas Budhwar

Counsel for Respondent:
Kartikeya Saran, Shagun K. Saran

Arbitration Act S.37 Appeal - S.34 Objection Allowed By District Judge Set Aside - Marker Test
Validity - Division Bench Binding-- S.34 Order - Erred In Relying On Single Judge Over Division
Bench- District Judge's reliance on single Judge decision M/s Anil Service Station v. Union of
India ((2009) 7 ADJ 347) holding marker test authenticity doubtful post-withdrawal was erroneous--as
it conflicts with binding Division Bench ruling in Kishore Auto Sales (supra) implicitly overruling the
single Judge-Patent illegality in ignoring binding division bench over single judge.

Marker Test - Not Withdrawn For Authenticity Doubt - Procedural/Tender Issues-- Marker
System Discontinued Not Due To Unreliability In Detecting Adulteration But Due To No Supplier
Meeting 100% GEOI Mandatory Requirements- prior tests does not render unreliable or nonconclusive.

Appeal allowed-- the matter is remanded back to the District Judge to consider the application
under Section 34 of the Arbitration and Conciliation Act, 1996 afresh in accordance with law.

List of Cases cited:
1. M/s Anil Service Station, Azamgarh and another Vs. Union of India and others, (2009) (7) ADJ 347

2. M/s Kishore Auto Sales Vs. Bharat Petroleum Corporation Limited and others, 2010 (6) ADJ 711
(DB)