Indian Kanoon - Search engine for Indian Law

6. The Full Bench also referred a Special Bench Judgment of this Court on difference of opinion between two learned judges of this Court in Baldeo Singh v. Gopal Singh, 1967 MP LJ 242 wherein the Special Bench considering the question held that the court-fee is payable on the plaint as it was framed and not on a plaint as it ought to have been framed. The question of court-fees is distinct and separate from the question of the maintainability of the suit. In that case the suit was filed by a minor for declaration that sale- deed executed by his brother as Karta of joint Hindu family was void for want of legal necessity. An alternative plea was raised that the sale-deed was void to the extent of plaintiff's share. The Special Bench held that where the plaintiff sues for a declaration simplicitor that a sale-deed executed by his elder brother is not binding on him without further seeking any consequential relief, the fact that his claim would be incompetent, because of his failure NEUTRAL CITATION NO. 2024:MPHC-JBP:54532 5 MP-4913-2023 to seek further consequential relief which he was able to claim does not affect the question of court-fee and he will be liable to pay court-fee under Article 17(iii) of Schedule 2 of the Court Fees Act and not under section 7(iv)(c). The Special Bench further held that the declaration asked for by the plaintiff in such a case must not be mere garb for the real, substantial or consequential, relief intended to be claimed, if it be so, it is competent for the Court to look to the substance of the relief claimed apart from the form and require him to pay the court-fee which he would be bound to pay in case he had not resorted to a device in concealing the relief he really wanted. Where the plaintiff is not bound either by a deed or a decree to which he is co-nominee, not a party or privy because of its being void on the allegations made by him, then his claim for declaration with reference to his title to the property, alleged to be in his possession, will not be taken to involve a claim for a consequential relief. The Special Bench held that the court-fee payable was under Article 17(iii) of Schedule-II of the Court Fees Act and not under Section 7(iv)(c).

13. Now in the light of aforesaid settled position by the Apex NEUTRAL CITATION NO. 2024:MPHC-JBP:54532 7 MP-4913-2023 Court and Full Bench of this Court, the first question referred by the Division Bench may be examined. When the plaintiff makes an allegation that the instrument is void and hence not binding upon him, and if a declaration simplicitor is prayed then he is not required to pay ad valorem court fee and a fixed court-fee under Article 17, Schedule-II of the Court Fees Act will be payable. This position is well settled by the Apex Court in Ningawwa (supra) and continued till the decision in Sneh Gupta (supra). The void document which is not binding upon the plaintiff needs to be avoided and in this regard a declaration is sufficient. The Full Bench of this Court in Santoshchandra (supra) has clarified the position and we respectfully agree with the law laid down by the Full Bench in Santoshchandra (supra).

14. In view of the aforesaid discussion, there is no doubt that if plaintiff makes an allegation that the instrument is void and hence not binding upon him then ad valorem court-fee court fee is not payable and he can claim declaration simplicitor for which Court fee and Article 17 (iii) of Schedule II would be sufficient. The question No.1 is answered accordingly."