RADHA SUNDAR RAY Vs. SAKTIPADA RAY

JUDGEMENT

(1.) This is a reference under Section 5 of the Court Fees Act and I have been appointed by the learned Chief Justice as a Judge to decide on this reference.

(2.) The questions referred to are : (1) what is the court-fee payable on a plaint or memorandum of appeal in a suit for adjudging a document void or voidable under a. 39 of the Specific Relief Act with a prayer for cancellation of the document in question and (in the case of registered document), for notification to the Sub-Registrar; and (2) does it make any difference whether or not the prayers for cancellation and notification to the Sub-Registrar are expressed or not. The second question referred need not be answered and it is sufficient for the purposes of the present appeal to answer the first question referred to above for in this case it appears clear that the plaintiff now respondent, brought the suit in respect of a deed of relinquishment purported to have been executed by him in favour of the defendants praying for a decree declaring that the deed of relinquishment (Nadavinama) (Nadavi document) was not executed by him and further for cancelling the deed with the usual notice to the Registration Officer concerned. The suit therefore is strictly in terms of Section 39 of the Specific Relief Act for cancellation of the document. In such a case it appears to me that the case comes within Section 7(iv)(c) of the Court Fees Act and this is really a suit for a declaration with consequential reliefs. This view finds support from a very early decision of. Sir Lawrence Jenkins in the case of Parvatibai V/s. Vishvanath Ganesh 28 Ind. Cas. 691 : A.I.R. 1915 All. 114 : 13 A.L.J. 963. The view also finds support from the Full Bench decision of the Allahabad High Court in Kalu Ram V/s. Babu Lal . The Patna High Court; seems to have taken the same view in the case of Kamla Prasad. V/s. Jagarnath Prasad 10 Pat 432 : 130 Ind. Cas. 46 : AIR 1931 Pat. 78 : Ind. Rul (1931) Pat. 142. Mr. Guha who appears for the defendant- appellant contends that according to the language of Section 39 it would have been sufficient for the plaintiff to ask for the declaration that the deed in question be adjudged void or voidable and the Court was bound on such a prayer being made to adjudge the deed void or voidable and to order it to be delivered up, and cancelled. He has in support of this contention relied on the decision of the Madras High Court in Kattiya Pillai V/s. Ramaswamia Pillai 56 MLJ 394 : 119 Ind. Cas. 35 : AIR 1929 Mad. 398 : (1929) MWN 286 : 29 LW 581 : Ind. Rul. (1929) Mad. 867 It must be conceded that in a suit under Section 39 the relief is not confined to the parties at whose instance the suit has been brought. There may also be cases where it may not be possible for the Court to order delivery of the document as for instance when the document is lost. It cannot be said that the effect of the declaration that the deed is void or voidable includes the relief of that the deed should be delivered and cancelled, so that it is not necessary to pay expressly for such relief. It seems to me that in asking for the delivery and cancellation of the deed and for making it over to the Registrar the plaintiff in the present case has been asking for a substantial relief and consequently relief within the meaning of Section 4 (c).

(3.) Having regard to the language of the statute and in view of the authorities to which I have referred, namely the authorities of the Patna, Bombay and Allahabad High Courts and dissent from the view taken by the Madras High Court, the answer to the first question referred to above is that ad valorem court-fees are necessary in the present case. It is not necessary to answer the further question raised by the Taxing Officer, namely, if it does make any difference whether or not the prayers for cancellation and notification to the Sub-Registrar are ex-pressed or not, for that question does not arise in the present case.