DASARI NAGABHUSHANAM Vs. KUNAMEENI VENKATAPPAYYA

JUDGEMENT

(1.) In my opinion, the view of the Court-fee Examiner and the decision of the District Munsif supporting that view, are clearly wrong. There is a distinction between the getting rid of a document to which a person is a party and one to which he is not. The plaintiff in the suit complains that the sale-deed was forged by the defendant, that in spite of his objection, the Registrar directed its registration and he prays that the instrument may be declared to be a forgery.

(2.) When a person impeaches a deed as having been forged, to refer to him as being a party to it, is an obvious misuse ofss words. Mr. K. Subba Rao, who supports the lower Court's view, contends that the provision applicable is Section 7(iv-A) of the Court-Fees Act, which runs thus: In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value, according to the value of the subject-matter of the suit, and such value shall be deemed to be - if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed, if a part of the decree or other document is sought to be cancelled, such part of the document or value of the property.

(3.) His contention is that for the purposes of the Court-Fees Act, it is incumbent upon the plaintiff to have even a forged sale deed set aside or cancelled; in other words, that the section (in regard to the decrees and instruments of the kind dealt with by it) forbids declaratory suits and enacts that cancellation should always be prayed for. This argument is, in my opinion, utterly untenable. To declare what the substantive rights of the parties are or to prescribe the modes of enforcing those rights, is outside the province of a fiscal enactment, like the Court-Fees Act. The question then really is, when a person alleges that a forged instrument has been brought into existence as if he were a party to it, does the law cast upon him a duty to have it cancelled or set aside by suit? There are two statutory provisions which show that a suit for declaration lies: (1) Section 39 of the Specific Relief Act: Illustration (b) to that section contains an express reference to forged instruments and (2) Art. 92 of the Limitation Act refers to suits "to declare the forgery of an instrument issued or registered." While the law thus entitles a person to sue to have the document adjudged a forgery, does it compel him or make it obligatory upon him to get it cancelled or set aside? The cases cited by Mr. Subba Rao refer to instruments or decrees to which the plaintiff was a party. In Arunachalam Chetty V/s. Rangaswami Pillai (1914) I.L.R. 38 Mad. 922 : 28 M.L.J. 118 (F.B.) the referring Judges clearly point out the distinction between a document to which a person is a party and that to which he is not. When a document is of the former class, they point out that until it is set aside, it cannot be treated as void and that the necessary result of declaring that such a document is not binding on the plaintiff, is to cancel or set aside the deed. The case might be different, they go on to add, where a declaration is sought by a person who is not a party to the document; the suit may in such a case be properly regarded as one for declaration only. In the second case referred to by the learned Counsel, namely, Venkatasiva Rao V/s. Satyanarayanamurty (1932) I.L.R. 56 Mad. 212 : 63 M.L.J. 764, this distinction is equally borne in mind. Adverting to Balakrishna Nair V/s. Vishnu Nambudiri (1930) M.W.N. 509 Reilly, J., affirms that it was correctly decided, because the plaintiffs there, not having been parties to the decree, could have asked only for a declaration and it would not have been appropriate for them to pray that the decree should be set aside. Throughout his judgment, the learned Judge makes it perfectly clear that he is dealing with decrees obtained by fraud; in such a case, the plaintiff being a party to the decree which, he complains, is vitiated by fraud, there can be no doubt that he must get it set aside. Anantakrishna Aiyar, J., refers to this distinction in even clearer terms. Observes the learned Judge, "In fact not being a party to the document, he cannot have it set aside . All that he can pray for is a declaration that he is not affected in any way by that document." Dealing with the case of a forged will, I made the following observation in Kattiya Pillai V/s. Ramaswamia Pillai , which, I think, applies with equal force here: For instance, if a person, who feels aggrieved by a will, sues for recovery of immoveable property covered by it which happens to be in the possession of a third party, claiming the property on the strength of the will, can it be successfully contended that such a suit is governed not by the ordinary 12 years period but that the plaintiff is first bound to get the will set aside within the shorter period provided by Art. 91 of the Limitation Act. Such a contention cannot prevail.