JOSEPH LAZARUS Vs. ISHA KHAN

JUDGEMENT

(1.) This application by the plaintiff arises out of a Court-fee matter. The petitioner instituted a suit for a declaration that the sale-deed executed and registered on the 10th September 1952, by his mother with respect to the suit property is void ab initio, and, that the defendant has not acquired any right, title or interest to the said property by virtue of the sale. The peripatetic Stamp Reporter of this Court reported that the plaintiff was liable to pay ad valorem Court-fee. The learned Subordinate Judge, after hearing the parties, accepted the above report and called upon the petitioner to pay ad valorem Court-fee by his order dated the 10th December 1955. Against that order, the present application has been made in this Court.

(2.) The case of the petitioner, stated shortly, is that his mother was the owner and the proprietor of the dispute a property which included a house, and the defendant was a tenant in one of the rooms of the said house. After the death of the mother, the petitioner was informed that the document had been executed by his mother in favour of the defendant sometime before her death, and the said document had been registered without the knowledge of his friends and well-wishers in the local registration office. His further case is that thereafter he made enquiries and came to learn from the copy of the sale-deed alleged to have been executed by her that she was made to execute it on a fraudulent misrepresentation that it was a lease for the tenanted portion of the house in occupation of the defendant, (vide paras. 8 and 9 of the plaint). On these allegations, he contended that the salerdeed in question was void ab initio and was not binding on him and prayed for the reliefs stated above.

(3.) The question is whether it is a pure declaratory suit requiring a fixed Court-fee to be paid under Article 17(iii) of Schedule II of the Court Fees Act, or it is a suit for declaration and consequential relief of avoiding the effect of the sale-deed in question in the garb of a mere declaratory suit and requires ad valorem Court-fee under Section 7(iv)(c) of that Act. Mr. Roy, appearing for the petitioner, has contended that the sale-deed in question is void ab initio, and it is not, therefore, necessary for the plaintiff to make any prayer to set it aside, and, as such, he was entitled to institute a suit for a mere declaration. In support of his contention, reliance has been placed on a Bench decision of this Court in Raja Singh v. Chaichoo Singh, AIR 1940 Pat 201 (A). In that case, one Titai Singh instituted a suit for recovery of possession of certain properties on a declaration that the deed of gift said to have been executed by him in respect thereof was fraudulent and null and void. During the pendency of the suit, Titai Singh died and an agnate of his was substituted as plaintiff in his place. One of the questions that fell to be decided in the appeal was whether the deed of gift alleged to have been gifted by Titai was void or only voidable. It was found in that case that he executed the document under the impression that it was a lease. In that view of the matter, it was held in that case that there was no real execution of the deed of gift since Titai's mind would have been directed to one thing whereas what he put his hand to was something of an altogether different character, and that if there was no real execution, the document was wholly void and not merely voidable. It was further held that where the document was wholly void ah initio, any prayer to set it aside is unnecessary and redundant. In that case, the question of payment of Court-fee was not under consideration, rather the full Court-fee on the subject-matter of the suit had been paid in that case. Moreover, Titai himself stated in the plaint that he was given an impression that the document that was going to be executed was a lease. That case has no application, in my opinion, to the facts of the present case, where the executant of the document is dead, and there is nothing to show that she, at any time, challenged the document as having been executed by her only by way of lease and not by way of sale. Even the plaintiff, in his plaint, has only stated that from the document itself it appeared that a misrepresentation was made to his mother as regards the document being a document for lease. This document, in my opinion, stands in the way of the plaintiff to have any title on the disputed property as successor of his mother, unless this is removed from his way, it is not possible for him to obtain any substantial relief in the case. It, therefore, appears that though he has prayed only for a declaration, but really it is a suit for declaration with consequential relief.