BANWARI LAL Vs. MADAN MOHAN

JUDGEMENT

(1.) The question at issue in this case is whether the learned Subordinate Judge was correct to hold that the court-fee on the plaint should be computed under Section 7,Clause (iv) (c), Court-fees Act, and not under Section 7, Clause (v), Court-fees Act.

(2.) In support of this rule Mr. Kameshwar Dayal addressed the argument that the suit was not one for a declaration in the true sense but the plaintiffs really had asked for a decree for possession; and if there be a claim in the plaint for a declaration it was an unnecessary one. Reliance was placed upon Ramkhelawan Sahu v. Surendra Sahi, 16 pat. 766 : (A. I. R. (25) 1938 Pat. 22 F. B.) in which a Full Bench held that Section 7, Clause (iv) (c) had no reference to the kind of declaration in the sense of a finding of fact as to the plaintiff's title necessary for granting a decree for possession. But the material facts of that case are clearly to be distinguished. In that case the plaint was very verbose and it proceeded to anticipate the defence and stated that the defendants were claiming under an alleged gift in perpetuity in favour of certain idols and that they were the she baits of the scheduled properties, and submitted that the so-called gift was invalid. The plaint winded up a prayer for a decree for possession, a decree for mesne profits and a request that if the deed of dedication was really valid the plaintiff should be held to be the legal she bait and that a decree for possession be granted in his favour. As the plaintiff averred that the deed was void the Full Bench held that the defendants obtained nothing under it and it may be ignored and there need be no suit or claim to have it set aside. In support of this conclusion the Full Bench referred to Petherpermal Chetty v. Muniandi Servai, 35 I. A. 98 : (35 Cal. 551 P. C.). In the present case, however, the plaintiffs have stated that the deed of gift with respect to Schedule 1 property executed by Kashi Prasad, the last male owner, in favour of his daughter-in law Mt. Bhup Kuer was fraudulent and executed under undue influence and so was not binding upon the plaintiffs. With respect to this allegation, it is obvious that the deed of gift upon the allegation in the plaint is voidable and not void and it is necessary for the Court to set aside the deed of gift before granting a decree for possession in favour of the plaintiffs. The ratio of the Full Bench case in Ramkhelawan Sahu v. Surendra Sahi, 16 Pat. 766 : (A. I. R. (25) 1938 Pat. 22 F. B.) is therefore not applicable and, in my opinion, the learned Subordinate Judge was correct in holding that court-fee on the plaint should be computed in accordance with Section 7, Clause (iv) (c), Court-fees Act.

(3.) Mr. Kameshwar Dayal also complained that the court-fee computed is excessive. But the learned Subordinate Judge has considered all the evidence on the quantum of court-fee and his order cannot be impeached for want of jurisdiction.Accordingly I would discharge the rule. The application is dismissed with costs. Hearing fee one gold mohur.