Patna High Court
Ramkishun Mahton And Ors. vs Smt. Nero Devi And Ors. on 9 March, 1965
Equivalent citations: AIR1965PAT486, AIR 1965 PATNA 486
ORDER G.N. Prasad, J.
1. The petitioners are the plaintiff's of Title Suit No. 41 of 1962 which they have filed in the Court of the Subordinate Judge, Second Court. Monghyr, for partition claiming -/8/- annas share in the suit-properties on the basis of a genealogy which has been included in Schedule 1 of the plaint. The short question which arises for decision is whether the petitioners are liable to pay court-fee on ad valo rem basis upon the plaint which they have filed with a fixed court-lee of Rs. 22.50 under Article 17(vi) of Schedule II of the Court-Fees Act.
2. By his order dated the 31st August 1963, the learned Subordinate Judge has held that although in the relief-portion of the plaint only a simple prayer has been made for partition, the recitals contained in paragraphs 7 to 13 of the plaint make it clear that the plaintiffs are really seeking a declaration to the effect that a compromise decree passed in a previous suit (Title Suit No. 9 of 1961) between the same parties is invalid, void and not binding upon them According to the learned Subordinate Judge, the plaintiffs can get a decree in the present suit only when the decree in the previous suit is set aside and. therefore, they are liable to pay ad valorem court-fee under Section 7(iv) (c) of the Court-Fees Act.
3. It is quite true. as pointed out by Meredith, J. in Ramautar Sao v. Ram Gobind Sao, ILR 20 Pal 780: (AIR 1942 Pal 60) that in cases of this kind we must ask ourselves. what is the real nature of the plain shorn of its verbiage. What is its real substance as opposed to its ostensible form? And so far as a suit purporting to be for partition is actually in the nature of a title suit, ad valorem court fees are payable, whether the suit is regarded as governed by Section 7(iv) (c), 7(iii) or 7(v) of the Court-Fees Act. But in applying these principles, care must be taken, not to import into the plaint anything, which it does not really contain, cither actually or by necessary implication. In construing the plaint, we must take it as it is. and not as we may think it ought to have been Therefore, a relief not asked for, cannot be imported so as to charge court-fee thereon. Since, however, the Court must look to the real nature of the plaint, it becomes necessary to decide whether a claim for declaration and consequential relief has been made by necessary implication, and if that has been done, then the court-fee must be held to be payable on ad valorem basis. We have, therefore, to examine the plainl in the present suit in order to determine if it carries be neccssary implication a prayer for soiling aside the compromise decree which was passed in the previous suit.
4. In approaching this question, we must bear in mind that there is a dislinclion between decrees or documents which are wholly void and decrees or documents which are not wholly void, but voidable on account of causes like fraud, mistake or undue influence. The importance of this distinction lies in the fact that so far as wholly void decrees or documents are concerned, they do not require to be set aside since they have no existence in the eye of law and only a finding of fact is necessary to give the plaintiffs the necessary relief. In cases of voidable decrees or documents, on the other hand, it is necessary to have them set aside before the relief claimed in the plaint can be granted to the plaintiff. It is well established that in cases of the latter category, the Court has to make a declination in the true sense and, therefore, the true nature of the relief claimed in such cases, is that of decimation and consequential relief, as envisaged in section 7(iv) (c) of the Court-Fees Act. But the cases of the former category, siand on a different footing, because in those cases no declaration is necessary in the true sense and only a finding of fact is necessary to the effect, that the impugned document or decree is whollv void and as such it has no existence in the eye of law. so as to stand in the way of giving the relief, which the plaintiff has claimed Such cases do not fall within Section 7(iv) (c) or 7(v) of the Court-Fees Act. The legal position was explained by Meredith, J. in Ramaular Sao's case, ILR 20 Pat 780: (AIR 1942 Pal 60) referred to above in the following words:
"In short, the prayer for cancellation can only be deemed to be present by necessary implication where upon its true construction the plaintiff in asking for avoidance of the document asks for reliefs which necessarily involve the cancellation, that is to say, in the case of a document which is voidable as opposed to void."
It is quite clear, therefore, that plaintiff may rely upon the invalidity of a void document or decree as against himself, without suing for its cancellation, and a suit for declaring the invalidity of such a decree or document is not governed by Section 7(iv) (c). though if will of course be otherwise when the plaintiff cannot impeach the decree or document, without having it set aside or cancelled. In other words, a declaration cannot be regarded as having been asked for. by necessary implication, where no declaration in the true sense is necessary, before the plaintiff can be given relief. A declaration does nol include what is really only the finding of fact, necessary, before a decree I'm possession can be granted The distinction between a declaration in the true sense and what is merely a nercssarv finding, that is. where the plaintiff's right does not depend upon a declaration being made out but on a finding of fact being arrived at is well marked, and must be clearly drawn for the purposes of determining the liability to pay court-fee.
5. The real problem is, how is the Court to decide that the declaration by necessary implication which the plaintiff seeks in a particular case, is not a declaration in the true sense, but requires only a necessary finding to be given, in order to grant to the plaintiff the necessary relief, which he has sought? This should, however, present no difficulty. The: Court has to look to the document or the decree which is alleged to be not binding upon the plaintiff or not affecting his interest. The Court has to see whether the plaintiff was a party to the transaction or whether he had physical contact or connection with the impugned document or decree. In such a case, it will have to decide whether the physical contact or connection was not enough to validate the document or the decree because due to fraud, mistake, undue influence or like causes, the physical contact was nol accompanied with the mental assent of the plaintiff, in other words, if the document or the decree was voidable, and must be set aside, to clear the ground forgiving relief to the plaintiff. A voidable document or decree is good until it is set aside and. therefore, it requires a declaration in the true .sense, and not a mere finding of fact for the purpose of granting the relief which the plaintiff seeks. In such cases, the court-fee has to be paid on ad valorem basis. Mt. Rupia v. Bhalu Mahton, AIR 1944 Pat 17 (FB), Bholanath Chakravarty v. Girish Chandra Chakravarty, 1954 BLJR 294: (AIR 1954 Pat 406) and Sm. Mahendra Mukherjee v. Sachindra Chandra Mukherjee. AIR 1962 Pat 211, to which my attention was drawn by Mr. Asghar Hussain (whom I heard as amicus curiae, since the defendants had no locus standi in the matter of court-fee), were all cases in which the plaintiff was a parly, in the transaction, which was sought to be avoided, and it was on that ground that the plaintiff was held to be liable to pay ad valorem court-fee in those cases. But where the plaintiff is not a party to the impugned transaction or where he had no physical contact or connection with tin; document or the decree which is sought to be avoided, the court is not called upon to formally set aside the document or the decree. In such cases, the Court has only to record a finding to the effect that the document or the decree is void and not binding upon the plaintiff.
Rambharosa Lal v. Smt. Binda Devi, AIR 1956 Pat 203 was a case of this nature. There, the plain tiff sought a declaration that a sale deed purported to have been executed by him, was a forged and fabricated document and that he was not a party to it, the signatures on the sale deed, purporting to he of the plaintiff being rank forgery. In oilier words, the plaintiff alleged, that he was not an executant of the sale deed it was held by Choudhaiy, J that the court-fee payable in the case was the fixed court-fee under Article 17(iii) of schedule II of the Court-fees Act. His Lordship refferred to the Full Bench decision in AIR Hi'14 Pat 17 (FB) and distinguished it with the following observation.
"That was a case of voidable document as opposed to void document where the plaintiff alleges that he was not a party at all to the document. If a plaintiff comes with a case that he never executed a document, and his signature on it was forged, it is not necessary for him to get a consequential relief, to have the document cancelled, because so far as he is concerned, the document does not stand at all."
I will also again refer to Ramautar Sao's case, ILR 20 Pat 780:(AIR 1942 Pat 60} at this stage. There, the allegation was, that the plaintiff was made to execute a deed of partition as a major, though in fact he was a minor. The question posed by Meredith, J. was, "If the plaintiff establishes his case, is the document voidable or wholly void?", and answered it thus "void undoubtedly, since executed by a minor, who cannot contract at all (Indian Contract Act, S 11) ....." His Lordship then posed the question "is it a declaration that is necessary to give the plaintiff relief, or only n finding?" and answered it thus "Surely, a finding that no such document was ever actually executed by the plaintiff, would be enough". In this view of the matter, it was held that the order of the Subordinate Judge demanding ad valorem court-fee from the plaintiff was not correct.
6. Turning to the allegations in the plain I made by the plaintiffs in the present case. I find that what the plaintiffs have alleged in paragraphs 7 to 13 of the plaint is, in substance, this. Partition Suit No. 9 of 1961 was not instituted by the plaintiffs at all. The person responsible for instituting it was one Nath Sahay Mahton, the clerk of Pandit Sri Krishna Missir, Advocate. It was he who had got the plaint prepared behind the back of the plaintiffs and got it filed in Court along with a forged vakalatnama, purporting to be on behalf of the plaintiffs. Within one month of the filing of the suit, he had got a compromise petition filed therein. This compromise petition was a rank forgery and it did not bear the signature or the thumb impression of the plaintiffs. One of the lawyers acting in that case, was the brother of Nath Sahay, whose name is Kedar Nath. Therefore, the compromise decree passed in the aforesaid title suit was wholly void, and without jurisdiction, since, the plaintiffs were not party to it at all. If is clear that the plaintiffs' case stands on the same footing as the case of Rambharosa Lal, AIR 1956 Pal 203 which I have referred to above.
In the present case also, what will be necessary to give the plaintiffs relief, would be merely a finding, that they were not party to the previous suit or the compromise decree passed therein, and as such, the suit or the compromise decree had no existence, so far as the plaintiffs are concerned. It is, therefore, not a case in which a declaration in the true sense has been sought for. Under the circumstances, the learned Subordinate Judge is in error in demanding ad valorem court-fee from the the plaintiffs under section 7(iv) (c) of the Court-Fees Acf. In my opinion, the plaintiffs have rightly stamped the plaint with the fixed court-fee provided under Article 17(vi) of Schedule II of the Court-Fees Act.
7. The result, therefore, is that the order of the learned Subordinate Judge dated the 31st August 1963 is set aside and it is directed that the suit do proceed upon the court fee already paid. The application is accordingly allowed, but there will be no order of costs.