B BHUWAN BHUSHAN SHAH Vs. B BALBHADDAR DAS

JUDGEMENT

(1.) This is an appeal from an order, dated 28th July 1917, made by the Additional Civil Judge of Banaras, in a suit instituted by the plaintiff-appellant, Shri Bhuwan Bhushan Shah, against his father Shri Krishna Mohan Shah, and the latter's transferee, Shri Balbhaddar Das, by which the appellant was asked to make good the deficiency in court-fee paid on the plaint. On 1st December 1941, Krishna Mohan Shah, on his own behalf and as guardian of his minor son, Bhuwan Bhushan Shah, executed a sale-deed and later on, on 26th May 1942, a rent-deed in respect of certain property in favour of Balbhaddar Das. The appellant instituted the suit, referred to above, challenging the binding nature of the said deeds and to obtain a declaration that he was not bound by them. He treated the suit as a simple suit for declaration and paid a court-fee of Rs. 37-8-0 only. Later on, it was conceded on his behalf that the suit was one involving cancellation of the sale-deed and it was of the nature mentioned in Sub-section (2) of Section 7 (iv-A), Court-fees Act. The defendant-vendee as well as the Inspector of stamps raised an objection that ad valorem court-fee should have been paid. The contention put forward on behalf of the defendant was that the suit fell within the purview of Section 7 (iv) (a) of the Act, as it was a suit for declaration with a consequential relief and that, as the plaintiff sought to avoid the rent-deed also, he was to pay court-fee in respect thereof as well.

(2.) The learned Civil Judge held that the suit involved the cancellation of the sale deed to which the plaintiff was "apparently" a party; as such, he should have paid court-fee under Section 7 (iv-A) (1) of the Act. He further held that the suit also involved the cancellation of the rent deed; but, as the plaintiff was no party to it, he should have valued it separately and paid court fees on one-fifth of the value of the subject-matter. Accordingly, he ordered the plaintiff to pay an additional court-fee of Rs. 2153-2-0 within one month from the date of the order.

(3.) The sole question for consideration in this appeal is whether the appellant can be considered to be a "party" to the sale-deed, within the meaning of Sub-section (1) of Section 7 (iv-A), Court-fees Act As has already been stated, the sale, deed in question was executed by the appellant's father on his own behalf as well as on behalf of the appellant, acting as his guardian. The appellant alleges that the property transferred under the sale deed was ancestral property belonging to the joint Hindu family, consisting of himself and his father; consequently, the latter was not competent to execute the sale deed in respect thereof, more especially on his behalf as there was no legal necessity In other words he disowns the document, which purports to have been executed on his behalf by his guardian. The question arises whether, in these circumstances, the appellant can be considered to be a "party" to the document.