BISHAN SARUP Vs. MUSA MAL

JUDGEMENT

(1.) This is a reference by the Taxing Officer to me as Taxing judge under Section 5 Court-fees Act. The reference embraces two matters : firstly, whether the court- fee paid on the memorandum of S.A. No. 51 of 1933 by the plaintiff-appellant is sufficient, and secondly, whether the court-fee paid by the plaintiff in the trial Court and in the lower appellate Court is sufficient. Learned Counsel has argued that on the strength of a ruling of a Bench of this Court, of which I was a member in Mitthu Lal V/s. Chameli , the jurisdiction in regard to the alleged insufficiency of the court-fees in the lower Court lies with a Bench under Section 12(2), Court-fees Act. I accept that view. The jurisdiction of the Taxing Officer to make a reference under Section 5 Court-fees Act, is in regard to the payment of the court-fee in the High Court. This section shows that the question relates only to this Court as the section uses the words "any fee under this chapter." Chapter 2 deals with fees in the High Courts and in the Court of Small Causes of Presidency Towns. It does not deal with the court-fee payable in other Courts and in the present case the suit was brought in the Court of a Munsif and the appeal was brought in the District Court. Now, the question at issue is whether the fee should be that of a declaratory suit or an ad valorem court-fee. The plaint asked for the following relief: It may be declared that by virtue of the purchase made under the sale- deed, dated 24 October 1931, in favour of defendant 1, and under the sale-deed, dated 21 October 1931, in favour of defendant 2, which are null and void and ineffectual as against the plaintiff and the joint family property-defendants 1 and 2 did not acquire any right to any part of the houses mentioned at the foot hereof.

(2.) Learned Counsel desired to rely on a ruling of a Bench of this Court reported in Radha Krishna V/s. Ram Narain . That was a suit for cancellation of a compromise and decree. The plaintiff amended his plaint to the effect that there should be declaration that the petition of compromise and the decree were ineffectual against the plaintiff and he was not bound thereby. It was held that the plaint as amended was sufficiently stamped and that the suit was to obtain a declaratory decree where no consequential relief was prayed, and therefore the suit fell under Schedule 2, Court-fees Act, Art. 17(3). The present suit, differs because the declaration is desired not in regard to a decree, but in regard to a written instrument. The present suit clearly comes under Section 39 Specific Relief Act which provides that Any person against whom a written instrument is void or voidable...may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(3.) The section further provides that a copy of the Court's judgment shall be sent to the Registering Officer and the fact of cancellation shall be noted on a copy of the instruments in the Sub-Registrar's books. The granting of a decree therefore under Section 39, Specific Relief Act, involves the consequential relief that the document is cancelled. On the other hand, a declaratory suit in regard to a decree does not come under Section 39 and does not involve the same consequential relief. Learned Counsel was not able to produce any ruling showing that a suit under Section 39 Specific Relief Act, in regard to a written instrument does not require an ad valorem court-fee. The contrary in fact has been held in Akhlaq Ahmad V/s. Karam Elahi , in which it was held that in a similar suit for a declaration to declare a sale-deed void, Art. 17(3), Schedule 2, Court-fees Act, did not apply and that Art. 1, applied and that suit required an ad valorem court-fee. There is also a Full Bench decision of this Court reported in Kalu Ram V/s. Babu Lal . This lays down that where a suit is for the cancellation of an instrument under Section 39, Specific Relief Act the relief is not a declaratory one. It falls neither under Section 7(4)(c) nor under Schedule 2. Art. 17(3), but under Art. 1, Schedule 2, Court-fees Act. This Full Bench settles the matter finally.