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Rehman Mir v. Rehman Mir And Others
Factual and Procedural Background
The opinion concerns a revision petition challenging an order of the Munsiff Badgam dated 28-12-63. The plaintiff (petitioner in revision) filed a suit in the Munsiff's court seeking a decree that a sale deed dated 22-5-62 and registered on 26-5-62 (executed by defendant No.1 in favour of defendant No.2) transferring six marlas of land in survey No. 495, khewat No. 35 in village Watalpura Bandapura, was void and ineffective against the plaintiff. The plaintiff valued the suit for purposes of court-fee and jurisdiction at Rs. 10/-. The sale deed itself recited a consideration of Rs. 2,000/-. On objection by the defendants as to inadequacy of court-fee, the Munsiff held that the suit should be valued for court-fee and jurisdiction at Rs. 2,000 (the consideration stated in the sale deed). The plaintiff filed the present revision petition against that order.
Legal Issues Presented
- Whether the plaintiff's suit (seeking the sale deed to be declared void against him) is to be treated under Section 42 or Section 39 of the Specific Relief Act (i.e., whether it is a simple declaration or a suit for cancellation requiring a different valuation approach).
- What valuation is proper for purposes of court-fee and jurisdiction in such a suit — specifically, whether the plaintiff may fix the valuation at Rs. 10 under Schedule 2 Article 17(iii) / Section 7(iv)(c) of the Court-fees Act, or whether the valuation must be based on the consideration mentioned in the sale deed (Rs. 2,000).
Arguments of the Parties
Petitioner's (Plaintiff's) Arguments
- The valuation fixed by the plaintiff at Rs. 10 for court-fee and jurisdiction was properly fixed.
- The suit falls under Section 7(iv)(c) of the Court-fees Act (a suit for declaration with consequential relief), and therefore the plaintiff can fix his own valuation on the plaint.
Respondent's (Defendants') Arguments
- The respondent's counsel agreed that the suit falls under that part of the section (Section 7(iv)(c)), but contended that the valuation for court-fee should be the consideration mentioned in the sale deed (i.e., Rs. 2,000).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bishan Sarup v. Musa Mal, AIR 1935 All 827 (FB) | Where a plaint can be construed as falling under either Section 39 or Section 42 of the Specific Relief Act, the plaintiff is entitled to construe it as one under Section 42. | Cited to support the proposition that a plaintiff's characterization of the suit as a declaration under S.42 should be respected where the plaint admits such a construction. |
| Sukhlal v. Devilal, AIR 1954 Raj 170 | Distinguishes suits for cancellation of an instrument from suits for declaration that an instrument is not binding; cancellation is necessary where the plaintiff must remove an insuperable obstacle he is party to, while a stranger threatened by a transaction between third parties should seek a declaration. | Used to explain when cancellation is necessary and when a declaration suffices depending on whether plaintiff is a party to the instrument or otherwise affected. |
| Ramautar Sao v. Ram Gobind Sao, AIR 1942 Pat 60 | Held that a suit for cancellation of a document is a suit for declaration and consequential relief and is governed by Section 7(iv)(c) of the Court-fees Act. | Cited for the proposition that suits seeking cancellation often fall within the category of declaration with consequential relief under S.7(iv)(c) for court-fee purposes. |
| Ponnamal v. Kanthammal, AIR 1952 Mad 552 (considering Ramaswami v. Rangachariar and Vellayya Konar) | Held that a person who is not a party to a decree or document is not bound to sue for its cancellation; it is logically impossible for a stranger to ask for cancellation in the same sense as a party would. | Cited to support the proposition that a stranger may bring a suit for declaration rather than cancellation and that cancellation is not the necessary form of relief for a stranger. |
| Ramaswami v. Rangachariar, AIR 1940 Mad 113 (FB) | Considered in Ponnamal v. Kanthammal (no specific holding set out in this opinion beyond that it was considered). | Referenced as being considered in the decision relied upon (Ponnamal), but no separate application or holding is stated in the provided opinion. |
| Vellayya Konar v. Ramaswami Konar, AIR 1939 Mad 894 | Considered in Ponnamal v. Kanthammal (no separate holding recited in the text). | Referenced as part of the authorities considered in Ponnamal; the opinion does not state further specifics about its rule. |
| Harwant Singh v. Jagan Nath, AIR 1943 Lah 348 | Held that a suit by a stranger to declare that property sold at auction was his falls under Schedule 2 Article 17(iii) (and not S.7(iv)(c)); cancellation of the sale is a surplusage. | Cited to show that certain suits by strangers fall under Schedule 2 Article 17(iii) for court-fee, not under S.7(iv)(c), and that cancellation may be surplusage. |
| Girrao v. Shrikrishna, AIR 1957 Nag 53 | Held that a suit to set aside a compromise decree and for possession was a suit under Section 7(iv)(c) of the Court-fees Act. | Used to illustrate instances where a suit is treatable as a declaration with consequential relief under S.7(iv)(c). |
| Chhatu Lal v. Panchanan, AIR 1953 Cal 755 | Held that a suit for declaration that a sale deed executed by other co-sharers is void and for permanent injunction (plaintiff in possession with co-sharers) is a suit for declaration with consequential relief and falls under Section 7(iv)(c). | Cited to support classification of certain suits as S.7(iv)(c) where the relief is declaration with consequential relief. |
| Ramanujam v. Ramaswamy, AIR 1946 Mad 181 | Held that unless the plaintiff is a party to the document and cannot get relief without avoiding that document (i.e., the document is an insuperable obstacle), it is unnecessary to seek cancellation; relief asserted on basis that document is inoperative is not to be treated as cancellation under S.7(iv)(c). | Cited to underline that cancellation is required only where the plaintiff is party to the document and cannot obtain relief otherwise. |
| Abdul Rehman Bahadur v. Ahmad Bahadur, 7 J & K LR 165 | Division Bench held the court-fee paid was adequate in a suit where a preliminary decree for partition was valued at Rs. 2000; the suit for declaration of the preliminary decree being void was valued at Rs. 130/-. | Used as an example to show that valuation for court-fee may be less than the notional value of a decree or transaction relied upon, supporting flexibility in valuation depending on nature of relief sought. |
Court's Reasoning and Analysis
The court proceeded in a structured manner:
- Identify statutory provisions governing the suit: Sections 39 and 42 of the Specific Relief Act were examined to determine whether the plaintiff's claim is properly treated as a suit in which a declaration suffices or as a suit that requires cancellation. The court reproduced and relied upon the text of S.42 and S.39 and illustrations to show the scope of each provision.
- Categorisation of possible factual situations: The court outlined various categories of suits that might arise with respect to documents — for example, (a) suits alleging a document is a sham, (b) suits alleging a document was executed during minority, (c) suits alleging the document was the product of fraud/undue influence/etc., and (d) suits by persons who are not parties to a deed claiming it is not binding on their interests.
- Survey of authorities and divergence of approach: The court summarized authorities from different High Courts. It noted that while courts agree that when a plaintiff must avoid a document to remove an insuperable obstacle (category (c)) a suit for cancellation is required, in other categories a simple declaration may suffice and the valuation for court-fee depends on the particulars of the pleadings.
- Application to the facts: The court found that the plaintiff in the present case is not a party to the sale deed. The consideration mentioned in the sale deed (Rs. 2,000) therefore "does not at all come in for computation of court-fee" for this plaintiff's claim. The plaintiff's wording seeking "cancellation" was qualified by seeking that the deed be declared null and void against his interests — the court regarded the word "cancellation" as a mere surplusage in that context.
- Statutory and precedential synthesis: Relying on the language of Sections 39 and 42 and the collected jurisprudence cited, the court concluded that a stranger to a document may bring a suit for simple declaration that the deed is void as regards his interests. The court treated the present suit as one for declaration (with consequential relief where appropriate), and thus as governed for court-fee purposes by Schedule 2 Article 17(iii) (i.e., Section 7(iv)(c) of the Court-fees Act).
- Determination of court-fee and procedural directions: The court held that the proper court-fee payable on the plaint in the present case is Rs. 10/- under Schedule 2 Article 17(iii) of the Court-fees Act. The court ordered that the plaintiff's suit will be deemed properly valued for court-fee after the plaintiff makes up the deficiency (arising from the earlier proceedings) and amends his plaint to show the valuation for purposes of jurisdiction. The court expressly declined to fix the value for jurisdiction in its order so as not to prejudice the parties on that point.
- Costs and incidental directions: The court allowed the revision petition, ordered the plaintiff to make up the deficiency in court-fee within one month, to amend his plaint to show valuation for jurisdiction, and awarded costs to the petitioner with counsel's fee computed at Rs. 32.
Holding and Implications
REVISION PETITION ALLOWED
Direct holdings and immediate consequences:
- The court accepted the revision petition and disagreed with the Munsiff's order requiring valuation at Rs. 2,000 based on the consideration recited in the sale deed.
- The court held that the proper court-fee payable on the plaint in the present case is Rs. 10/- under Schedule 2 Article 17(iii) / Section 7(iv)(c) of the Court-fees Act, because the plaintiff is not a party to the sale deed and seeks a declaration that the deed is void as regards his interests.
- The plaintiff is ordered to make up the deficiency in court-fee (as indicated by the court) within one month and to amend the plaint to show the valuation for purposes of jurisdiction. The court did not fix the valuation for jurisdiction in this order.
- The petitioner (plaintiff) is awarded costs; counsel's fee assessed at Rs. 32.
Broader implications:
The opinion confines itself to the direct effect on the parties in this case and the proper application of Sections 39/42 of the Specific Relief Act and Schedule 2 Article 17(iii) of the Court-fees Act to the facts before it. The court observed that where a plaintiff is not a party to a document, the consideration recited in that document need not determine court-fee valuation for a suit seeking a declaration that the document is not binding on his interests. The opinion does not purport to lay down any broader, novel precedent beyond applying established authorities to the facts before it.
1. This is a revision petition against the order of the Munsiff Badgam dated 28-12-63 whereby the learned Munsiff has asked the petitioner to make good the deficiency in the court-fee paid by the plaintiff upon the consideration fixed in the sale deed. The facts that have given rise to this revision petition are that the petitioner brought a suit with the following prayer against the defendants-respondents in the court of the Munsiff Badgam. The plaintiff prayed that a decree be passed for cancellation of the sale deed to the effect that the sale deed dated 22-5-62 registered on 26-5-62 by defendant No. 1 in favour of defendant No. 2 for six marlas of land and trees standing thereon in survey No. 495 khewat No. 35 situate in village Watalpura Bandapura is void and ineffective against the plaintiff. He fixed the value of the suit for court-fee and jurisdiction at Rs. 10/-. The sale deed mentioned a consideration of Rs. 2,000/-. On an objection by the defendants about the inadequacy of the court-fee, the Munsiff Page: 34held that the suit should be valued for court-fee and jurisdiction at Rs. 2000, the consideration mentioned in the sale deed. Against this order the present revision has been preferred by the plaintiff.
2. I have heard the learned counsel for the parties. According to the learned counsel for the petitioner, the valuation fixed by the plaintiff for court-fee and jurisdiction has been properly fixed. According to him this is a suit which falls under Section 7(iv)(c) of the Court-fees Act, i.e, a suit for declaration with consequential relief and as such the plaintiff can fix his own valuation upon the plaint. The learned counsel for the respondent agrees that this suit falls under the said part of the section, but according to him the valuation for court-fee should be the consideration mentioned; in the sale deed.
3. In disposing of this revision petition, we have first to see what provision of the Court-fees Act governs the suit of the plaintiff and then see what should be valuation fixed for purposes of court-fee and jurisdiction in such a case. The plaintiff has styled the suit apparently for cancellation of the sale deed and has qualified it with seeking a relief to the effect that the sale deed in question is void and inoperative against the plaintiff. The first point for determination is whether such a suit by the plaintiff is under Section 42 or Section 39 of the Specific Relief Act. Under S. 42 of the Act
“Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for further relief.”
4. Illus, (d) of this section says:
“A alienates to B property in which A has merely a life interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may in a suit by C against A and B declare that is so entitled.”
5. Illus. (e) refers to the case of a sonless widow who alienates part of the property in her possession as such. The presumptive heir according to this Illustration can obtain a declaration against her as well as the alienee that the alienation is void beyond the widow's lifetime. S. 39 of the Act lays down that
“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 ta 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.”
6. A careful examination of the provisions of both these sections would show that the case of a person who feels that some cloud is cast Upon his title by means of an act on the part of the other party, whether that act be in the shape of a document or otherwise, can seek a declaration that it is void against him. The language of S. 39 of the Act also makes it abundantly clear that when a person feels that such a document is void or voidable against him, he can sue to have it adjudged void or voidable and the power to cancel it after declaring it so, vests is the court.
7. Different classes of cases can be envisaged arising under these two sections. For instance (a) a suit to avoid a document executed by a party praying that the document is a sham transaction; (b) a suit to avoid a sale deed, executed by a person, on the ground that it was void as it was executed during his minority; (c) a suit to avoid a sale deed, executed by a person, on the ground) that he was induced to execute the deed on account of fraud, undue influence, coercion, mistake etc., and (d) a suit by a person who is not a party to a deed to the effect that the deed is not binding on his interests.
8. There is some divergence of opinion of the different High Courts as to the nature of a suit brought in each case. The decisions of the Madras High Court have been uniform on the point that except in the third category mentioned above, a simple suit for declaration would be sufficient to get the effect of a document set at naught, whereas in the third category mentioned above the suit that would lie should be a suit for cancellation of the instrument. All courts are agreed that its case of the third category mentioned above a suit for cancellation of the instrument has to be instituted. About the other three categories, the courts have held that the valuation depends upon the particular circumstances and pleadings in a particular case, whether a simple suit for declaration would lie or a suit for cancellation of the instrument in question. In an authority Bishan Sarup v. Musa Mal, AIR 1935 All 827 (FB) it was held that
“Where a plaint is so worded as to disclose a suit falling either under Section 39 or Section 42 of the Specific Relief Act, it is not open to a court to treat the suit as one falling within the purview of S. 39, if the plaintiff desires it to be construed as one under S. 42. The plaintiff is at liberty to construe the suit as one under S. 42.”
9. In another authority reported as Sukhlal v. Devilal, AIR 1954 Raj 170, a Division Bench of that court held:
“There is a difference between a suit for the cancellation of an instrument and one for a, declaration that the instrument is not binding on the plaintiff. When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle, such as a decree or a deed to which he has been a party or by which he is otherwise bound then he must get that decree or deed cancelled. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties his proper remedy is to get a declaration that the decree or deed is invalid so far as he himself is concerned.”
10. In Ramautar Sao v. Ram Gobind Sao*, AIR 1942 Pat 60 it was held that a suit for the cancellation; of a document is a suit for declaration and consequential relief and is governed by Section 7(iv)(c) of the Court-fees Act.
11. In Ponnamal v. Kanthammal, AIR 1952 Mad 552, it was held that “a person who is not a party to a decree or a document is not bound to sue for its cancellation. In fact, it is logically impossible Page: 35for a person who is not a party to a document or to a decree to ask to its cancellation.” In this case, Ramaswami v. Rangachariar, AIR 1940 Mad 113 (FB) and Vellayya Konar v. Ramaswami Konar, AIR 1939 Mad 894 were considered.
12. In Harwant Singh v. Jagan Nath, AIR 1943 Lah 348 it was held that a suit by a stranger for a declaration that the property sold at auction sale was his property and was not liable to be sold in execution of the decree passed in a suit in which he was not actually of constructively represented falls under Sch. 2 Article 17(iii) and not S. 7(iv)(c). The plaintiff in such a case is not entitled to have the sale cancelled. The relief for cancellation of the sale does not follow from, the declaration asked for and must be regarded as a surplusage.
13. In Girrao v. Shrikrishna, AIR 1957 Nag 53 it was held that a suit to set aside a compromise decree and for possession was a suit under Section 7(iv)(c) of the Court Fees Act.
14. However, in Chhatu Lal v. Panchanan, AIR 1953 Cal 755 it was held that when in a suit for declaration that the sale deed executed by other co-sharers is void and for permanent injunction, the plaintiff is in possession with other co-sharers, the suit is one for declaration with consequential relief and falls under Section 7(iv)(c) of the Court-fees Act.
15. In Ramanujam v. Ramaswamy, AIR 1946 Mad 181 it was held that unless the plaintiff is a party to a particular document and he cannot get the relief he seeks without avoiding that document, it being an insuperable obstacle in his way, it is unnecessary for him to seek the cancellation of the document; and any relief he may otherwise ask for on the basis that the document was not intended to be acted upon and was inoperative, cannot, in substance and in effect, be treated as a relief for cancellation within the meaning of S. 7(iv)(c).
16. In an authority reported as Abdul Rehman Bahadur v. Ahmad Bahadur, 7 J and K LR 165 a Division Bench of this Court held that the court-fee paid was adequate in a suit in which a preliminary decree for partition was passed valued at Rs. 2000/-. In this case the suit for declaration of the preliminary decree was to be held null and void was valued at Rs. 130/-.
17. Only a few authorities of different High Courts have been cited above. There is a mass of decided case law under this category, but the consensus of opinion is that a stranger can bring a simple suit for declaration requesting the court to declare the sale deed as void against his interests. Such a suit can be launched by a person who is not a party to the document.
18. In the instant case the plaintiff is not a party to the sale deed about which he wants an adjudication. The consideration mentioned in the sale deed does not at all come in for computation of court-fee. The plaintiff can therefore bring a J simple suit for declaration that the sale deed executed by the defendant No. 1 in favour of defendant 2 be declared null and void against his interests. In fact he has done the same thing, though he has used the word ‘cancellation’ of the sale deed also. But this word he has qualified with the prayer that the sale deed be declared null and void against his interrats.
19. This interpretation of the legal proposition involved in this case is fully borne out by the language used both in Sections 42 and 39 of the Specific Relief Act, more so under S. 39 of the Act. As has been laid down in a number of authorities cited above, the use of the expression cancellation of the document has to be regarded as a mere surplusage in such cases and the suit has to be treated as one for a simple declaration. In my opinion, therefore, the proper court-fee payable on the plaint in the present case is Rs. 10/- under Schedule 2 Article 17(iii) of the Court-fees Act. The plaintiff's suit shall be deemed to be properly valued for purposes of court-fee after he makes up the deficiency but for that purpose he will have to amend his plaint showing the valuation for purposes of jurisdiction of the suit. What that value for purposes of jurisdiction should be I need not state in tills order as that would he prejudging the matter between the parties. The revision petition is therefore accepted and the plaintiff is ordered to make up the deficiency as indicated above in the court-fee within one month from the date of the order. He will amend his plaint. The petitioner is entitled to his costs. Counsel's fee computed at Rs. 32.
KH/MES/V.B.B
20. Petition allowed.
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