PONNUSWAMI CHETTIAR Vs. MARIAPPA PANNADY

JUDGEMENT

(1.) THIS petition arises out of a question of court -fee. The circumstances are, one hopes, unusual. The plaintiff says that he entered into a sale deed with the defendant which was drawn up on seven pieces of papers numbered consecutively. The defendant apparently drafted the document and according to the plaintiff was clever enough to make each page complete in itself so far as the language is concerned. Then before he presented the document for registration he abstracted page 5 which contained a most material clause in favour of the plaintiff. I am told that the plaintiff objected but the registrar nevertheless registered the document. The plaintiff apprehends that it may be used against him in the future. He has therefore filed a suit setting out these allegations and specifying the alleged fraud of the defendant. In the prayer he asks for the following relief:

(2.) THE matter is not free from difficulty and there are a great many conflicting decisions, but so far as this Court is concerned I think that the true view is expressed quite clearly in Nagabhushanam v. Venkatappayya, (1934) 68 M.L.J. 95 :, I.L.R. 58 Mad. 448, a decision of Venkatasubba Rao, J. In that case the plaintiff said that a certain sale deed had been forged and he prayed that the instrument might be declared to be a forgery. Venkatasubba Rao, J., said:

(3.) IN the case above cited Venkatasubba Rao, J., deals with Section 39 and, referring to a previous decision of a Bench of which he was a member, he says that the plaintiff is entitled to ask merely for a declaration that the document is void, The fact that the Court may go on to order it to be cancelled and will in such case send directions to the registration officer is not a matter for the plaintiff to request but the duty of the Court to grant. In Pollock and Mulla's text book on the Specific Relief Act the learned authors appear to think somewhat differently and to declare that even if the plaintiff merely prays for a declaration that the document is void, nevertheless, the suit is in no sense merely declaratory. With respect, I prefer the Bench case referred to by Venkatasubba Rao, J., namely, Kattiya Pillai v. Ramaswamia Pillai, (1939) 56 M.L.J. 394 and the learned Judge's own observations.