(GOSHAIN) MAHESHER GIR Vs. (SHEIKH)RAHMAT ULLAH

JUDGEMENT

(1.) This is a first appeal from a decision, dated 17 October 1932, of the learned Subordinate Judge of Mirzapur. The plaintiff, who is the appellant before us, instituted the suit concerned for a declaration that the property mortgaged by two deeds, dated respectively 23 July 1923, and 27 August 1930, is the property of a certain math " at Mirzapur, known as the "Math Brij Raj Katra." These deeds were executed by Mahant Kamta Gir, who is defendant 14 in the suit. The plaintiff claims that in 1918 the Mahant initiated him as a disciple, and nominated him as his successor. Two or three years before the institution of the suit, the plaintiff, it is alleged, was entrusted with the entire management of the property of the math and has accordingly a right to protect that property. Defendants 1 to 6, according to the plaint, instituted a suit on 25 January 1932, on the basis of the above two mortgage-deeds, against Mahant Kamta Gir, and the plaintiff asked unsuccessfully to be made a party to that suit. His application having been disallowed, on 29th March 1932, he instituted the present suit on 5 May 1932, for the declaration referred to above. A court-fee of Rs. 15 only was paid.

(2.) The learned Subordinate Judge took the view that the relief claimed in the suit was not of a purely declaratory nature, and that an " ad valorem " court-fee was payable on Rs. 24,000, the valuation stated in the plaint. He accordingly, on 3rd September 1932, called on the plaintiff to make good the deficiency, assessed at Rs. 1,067-8-0, by 15 October. The deficiency was not made good, and on 17th October 1932, the learned Subordinate Judge passed the following order: The court-fees ordered to be paid not deposited. Counsels have no instructions. Suit dismissed in default. Plaintiff to pay costs to the opposite party.

(3.) For the plaintiff-appellant it is contended that the relief claimed was of a purely declaratory nature, and a court-fee of Rs. 15 was sufficient. Reliance is placed on rulings of this Court reported in Bishan Sarup V/s. Musa Mal 1935 ALJ 869; Sri Krishna Chandra V/s. Mahabir Prasad 1933 ALJ 673 and Abdul Samad Khan V/s. Anjuman Islamia, Gorakhpur 1933 ALJ 1537. Learned Counsel for the appellant also referred to the following cases, which admittedly are against him: (i) Kalu Ram V/s. Babu Lal 1932 ALJ 684, (ii) Suraj Ket Prasad V/s. Chandra Mal 1934 ALJ 955. We were also referred, by learned Counsel for the respondents, to a decision reported in Ram Chhabila V/s. Sat Narain 1935 ALJ 1319. Somewhat different views have been taken in the above decisions, but in our opinion the relief claimed in the present suit must be regarded as coming within the scope of Section 39, not Section 42, Specific Belief Act, and the ruling applicable is the Full Bench ruling of five Judges of this Court reported in Kalu Ram V/s. Babu Lal 1932 ALJ 684. Section 39, Specific Relief Act, runs as follows: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, 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. If the instrument has been registered under the Indian Registration Act, 1877, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered, and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.