Patna High Court
Joseph Lazarus vs Isha Khan on 3 September, 1957
Equivalent citations: AIR1958PAT108, AIR 1958 PATNA 108
ORDER Choudhary, J.
1. This application by the plaintiff arises out of a Court-fee matter. The petitioner instituted a suit for a declaration that the sale-deed executed and registered on the 10th September 1952, by his mother with respect to the suit property is void ab initio, and, that the defendant has not acquired any right, title or interest to the said property by virtue of the sale.
The peripatetic Stamp Reporter of this Court reported that the plaintiff was liable to pay ad valorem Court-fee. The learned Subordinate Judge, after hearing the parties, accepted the above report and called upon the petitioner to pay ad valorem Court-fee by his order dated the 10th December 1955. Against that order, the present application has been made in this Court.
2. The case of the petitioner, stated shortly, is that his mother was the owner and the proprietor of the dispute a property which included a house, and the defendant was a tenant in one of the rooms of the said house. After the death of the mother, the petitioner was informed that the document had been executed by his mother in favour of the defendant sometime before her death, and the said document had been registered without the knowledge of his friends and well-wishers in the local registration office.
His further case is that thereafter he made enquiries and came to learn from the copy of the sale-deed alleged to have been executed by her that she was made to execute it on a fraudulent misrepresentation that it was a lease for the tenanted portion of the house in occupation of the defendant, (vide paras. 8 and 9 of the plaint). On these allegations, he contended that the salerdeed in question was void ab initio and was not binding on him and prayed for the reliefs stated above.
3. The question is whether it is a pure declaratory suit requiring a fixed Court-fee to be paid under Article 17(iii) of Schedule II of the Court Fees Act, or it is a suit for declaration and consequential relief of avoiding the effect of the sale-deed in question in the garb of a mere declaratory suit and requires ad valorem Court-fee under Section 7(iv)(c) of that Act.
Mr. Roy, appearing for the petitioner, has contended that the sale-deed in question is void ab initio, and it is not, therefore, necessary for the plaintiff to make any prayer to set it aside, and, as such, he was entitled to institute a suit for a mere declaration. In support of his contention, reliance has been placed on a Bench decision of this Court in Raja Singh v. Chaichoo Singh, AIR 1940 Pat 201 (A).
In that case, one Titai Singh instituted a suit for recovery of possession of certain properties on a declaration that the deed of gift said to have been executed by him in respect thereof was fraudulent and null and void. During the pendency of the suit, Titai Singh died and an agnate of his was substituted as plaintiff in his place. One of the questions that fell to be decided in the appeal was whether the deed of gift alleged to have been gifted by Titai was void or only voidable.
It was found in that case that he executed the document under the impression that it was a lease. In that view of the matter, it was held in that case that there was no real execution of the deed of gift since Titai's mind would have been directed to one thing whereas what he put his hand to was something of an altogether different character, and that if there was no real execution, the document was wholly void and not merely voidable.
It was further held that where the document was wholly void ah initio, any prayer to set it aside is unnecessary and redundant. In that case, the question of payment of Court-fee was not under consideration, rather the full Court-fee on the subject-matter of the suit had been paid in that case. Moreover, Titai himself stated in the plaint that he was given an impression that the document that was going to be executed was a lease.
That case has no application, in my opinion, to the facts of the present case, where the executant of the document is dead, and there is nothing to show that she, at any time, challenged the document as having been executed by her only by way of lease and not by way of sale. Even the plaintiff, in his plaint, has only stated that from the document itself it appeared that a misrepresentation was made to his mother as regards the document being a document for lease.
This document, in my opinion, stands in the way of the plaintiff to have any title on the disputed property as successor of his mother, unless this is removed from his way, it is not possible for him to obtain any substantial relief in the case. It, therefore, appears that though he has prayed only for a declaration, but really it is a suit for declaration with consequential relief.
4. The present case is covered by a decision of the Full Bench of this Court in Mt. Ru-pia v. Bhatu Mahton, AIR 1944 Pat 17 (B). That was a case in which the question of payment of Court-fee was directly in issue. In that case, one Mst. Rupia instituted a suit for declaration that certain sale-deeds executed by her were got up and fraudulent, and they were got executed by her by practising fraud on her and without letting her know the contents thereof, and the defendants have acquired no title by virtue of the sale.
Her case was that defendants 1, 3 and 5 brougnt her to Patna on false pretexts and fraudulently got her to affix her thumb mark to two documents and to admit execution of the same without letting her know the contents of the documents and that the recitals in the document as regards the passing of consideration and the existence of certain necessities and as to the relationship between her husband and defendants 7 to 10 were wholly false.
It was held in that case that as the sale-deeds, on their very face, had been duly executed and properly registered, carrying with them the necessary legal consequence that the title passed from the transferor to the transferee the sale-deeds would necessarily require to be cancelled in order to get rid oi the legal consequences attaching to them, and that being the very object of the suit though the plain-tiff did not in terms ask for the cancellation of the deeds in question, that relief was implicit in the relief sought for.
The suit was, therefore, held to be one for declaration and consequential relief governed by Section 7(iv)(c) of the Court-lees Act and not Sen. 2, Article 17(iii) of that Act. Their Lordships, no doubt, held that in considering what Court-fee is payable on a plaint caution must be observed so as not to import into the plaint anything which it does not really contain, either actually or by necessary implication, and, in construing the plaint the Court must take it as it is, not as it may think it ought to have been. But it was further held that the dexterity of the person drawing up the pleadings avoiding the use of certain words in the plaint, which would make the relief a consequential one, should not determine the amount of Court-fee payable on the plaint, and the Court-fee is dependent not on the form of the pleadings but on the real substance of the relief claimed.
It was further held that a suit though cast in the form of a declaratory relief only, but in substance aiming at setting aside a deed formally executed and registered in accordance with law is governed by Section 7(iv)(c) and not by Schedule 2, Article 17(iii) of the Court Fees Act. The present case, in my opinion, is on all fours with the Full Bench case.
5. A similar matter came to be considered by me sitting singly in Rambharosa Lal v. Sm. Binda Devi, 1956 BLJR 239: (AIR 1956 Pat 203) (C). In that case, the plaintiff sought for a declaration that a certain document was forged and fabricated and was never executed by him. A question arose what Court-fee should be paid. I held that since the plaintiff was not a party to the document in question, as according to his case he never executed that document, it was not necessary for him to seek any relief for getting that document set aside, and the suit was governed by Article 17(iii) of Schedule II of the Court Fees Act.
In that case, I made a distinction between a case where the execution of the document is admitted but it is alleged to have been obtained by fraud and a case where the execution ol the document is altogether denied. I observed that where the plaintiff is a party to the document, he could avoid it as being fraudulent by institution of a proper suit, and it was, therefore, necessary that a decree avoiding the effect of the deed would be passed in favour of the plaintiff, as that was a case of a voidable document as opposed to a void document where the plaintiff alleges that he was not a party at all to the document.
6. On the authorities discussed above, it is clear that the present case is governed by Section 7(iv)(c) of the Court Fees Act, and the petitioner has been rightly called upon to pay ad valorem Court-fee by the Court below. There does not appear to be any merit in the application, which is, accordingly, dismissed with costs; hearing fee Rs. 32.