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Showing contexts for: void deed in Bishan Sarup vs Musa Mal And Ors. on 17 April, 1935Matching Fragments
3. The section further provides that a copy of the Court's judgment shall be sent to the Registering Officer and the fact of cancellation shall be noted on a copy of the instruments in the Sub-Registrar's books. The granting of a decree therefore under Section 39, Specific Relief Act, involves the consequential relief that the document is cancelled. On the other hand, a declaratory suit in regard to a decree does not come under Section 39 and does not involve the same consequential relief. Learned Counsel was not able to produce any ruling showing that a suit under Section 39 Specific Relief Act, in regard to a written instrument does not require an ad valorem court-fee. The contrary in fact has been held in Akhlaq Ahmad v. Karam Elahi 1935 All 207, in which it was held that in a similar suit for a declaration to declare a sale-deed void, Article 17(3), Schedule 2, Court-fees Act, did not apply and that Article 1, applied and that suit required an ad valorem court-fee. There is also a Full Bench decision of this Court reported in Kalu Ram v. Babu Lal 1932 All 485. This lays down that where a suit is for the cancellation of an instrument under Section 39, Specific Relief Act the relief is not a declaratory one. It falls neither under Section 7(4)(c) nor under Schedule 2. Article 17(3), but under Article 1, Schedule 2, Court-fees Act. This Full Bench settles the matter finally.
4. Accordingly I hold that the plaintiff-appellant must pay an ad valorem court-fee in this Court within six weeks from this date. The matter in regard to the court-fees in the two lower Courts will be referred to a Bench of two Judges and I may be a member of that Bench.
Niamatullah, J.
5. The plaintiff paid a court-fee of Rs. 20 on two declaratory reliefs. The Stamp Reporter construed the reliefs as those for cancellation of instruments, on which ad valorem court-fee on the value of the subject-matter was payable in the lower Court. The case was laid for decision before a Division Bench, which referred two questions for decision by a Full Bench. The reliefs in question were claimed by the plaintiff on the allegation that he and his brother Komal Jha formed a joint Hindu family owning, inter alia, two houses, that Komal Jha sold one of them by a deed, dated 24th October 1931, to the first defendant, and sold the other by a deed dated 21st October 1931, to the second defendant, that Komal Jha had no right to execute the aforesaid sale-deeds, which are "null and void and ineffectual", that the plaintiff is in possession of the houses: in dispute and is entitled to have it declared that the purchasers (defendants 1 and 2), did not acquire any right to the houses in dispute by virtue of their respective purchases, which are void against the plaintiff and the joint family. After these allegations, the plaintiff proceeded to claim the following reliefs:
It may be declared that by virtue of the purchase made under the gale deed, dated 24th October 1931, in favour of defendant 1, and under the sale deed, dated 21st October 1931, in favour of defendant 2, which are null and void and ineffectual as against the plaintiff and the joint family property, defendants 1 and 2 did not acquire any right to any part of the houses mentioned at the foot hereof.
6. The plaintiff treated these reliefs as of declaration and paid a court-fee of Rs. 20, i.e., Rs. 10 in respect of each relief. No question was raised in the lower Courts. Eventually the plaintiff's suit was dismissed on the merits. He appealed to this Court, where the question arose for the first time on the report of the Stamp Reporter as to whether the reliefs are those for cancellation of the two sale-deeds referred to in the plaint. A reference to Section 42, Specific Relief Act, with its illustrations (to which I shall advert later), will show that a plaintiff is entitled to sue for a declaration that a certain transfer, being void or voidable at his option, does not affect his right in the property to which it relates. Section 39 of that Act, on the other hand, provides that any person against whom a certain instrument is void or voidable may sue to have it adjudged void or voidable, and the Court may in its discretion so adjudge it and order it to be delivered up and cancelled. Section 40 of the same Act, provides for partial cancellation of an instrument "where it is evidence of different rights or different obligations." Seemingly the two sections overlap each other, and the same relief may be considered to be one for declaration or for concellation. "Declaring" and "adjudging" are expressed by the same word in Urdu, namely, "istiqrar", so that, where a plaintiff claims an "istiqrar' that a document is void against him and against his interests, he can be understood to be claiming a declaration that the transfer evidenced by a certain deed is void and ineffectual against him and against his interest. He may also be understood as suing for the instrument being adjudged void against him, and therefore claiming the relief of cancellation. As held in Kalu Ram v. Babu Lal 1932 All 485, it is not necessary for the plaintiff to ask for the document being delivered up and cancelled, which is for the Court to direct. In these circumstances, questions frequently crop up in this Court on office reports in cases in which declaratory suits were entertained in the lower Courts and disposed of as such. The Stamp Reporter maintains in all such cases that the relief claimed by the plaintiff is one for cancellation, and he points to the relief claimed by the plaintiff as one amounting to a demand for the instrument being adjudged void. The plaintiff, on the other hand, protests against his suit being treated as one for cancellation, and lays stress on the fact that he claims no more than a declaration that the transfer evidenced by a certain instrument, which is characterised as void or voidable, does not affect his interests? The present case is an instance in point. Ex facie, the relief as worded in the original plaint may be so rendered in English as to make it arguable that it is a relief of cancellation. As against this, it can be urged, with at least equally good reasons, that the plaintiff is claiming no more than a declaration of his right to the property conveyed by the sale-deeds, which are characterised as void and not affecting his rights. In this state of the matter, the Division Bench, before which the case was originally laid, referred the following two questions for decision by a Full Bench:
15. The learned Government Advocate seemed to suggest that Section 42, Specific Relief Act, merely contemplates cases in which a declaration of a right to property or to any legal character is claimed without reference being made to any instrument and that if a document is specifically, referred to in relation to the plaintiff's right which he seeks to be declared, the suit ceases to be one for a declaration and becomes one for cancellation of the instrument. This view of Section 42 is refuted by the illustrations appended to it and is otherwise incorrect. A person's rights may depend upon the validity or invalidity of a deed affecting them, and it may be impossible to declare his right without adjudicating upon the validity of such deed. Illustration (c) to Section 42 permits a suit for declaration that a certain covenant is void for uncertainty. The, covenant, assuming it to be in writing, must be referred to in order to declare that it is void. Similarly, illustration (d) permits a suit for a declaration that an alienation made by the holder of a life-interest is void against a reversioner. The deed by which the alienation was made, must of necessity be referred to in granting the declaration. In this connexion Section 40, Specific Relief Act, which provides for partial cancellation, has a material bearing. If the argument above referred to is correct, the declaration amounts to a partial cancellation of the instrument by which the property is alienated. The declaration which the Court can grant in such a case, is that the deed is void, except as regards the life-interest of the alienor. If the argument noted above is correct, the relief amounts to a partial cancellation of the deed and to that extent the suit is not one for declaration. The same is the case with Illustration (e). Illustration (f) permits a suit for a declaration that an adoption is invalid. If the adoption is evidenced by a registered instrument, such a suit- if the argument in question is correct- will be one for cancellation and cease to be a suit for declaration. I am clearly of opinion that it is permissible for a plaintiff to obtain a declaration under Section 42, Specific Relief Act, that a certain instrument is void against him and does not affect his rights.