S.S. Dhavan, J.
1. This is an appeal from an order of the Second Additional Civil Judge, Allahabad accepting the Government Stamp-Reporter's contention that the applicant's plaint in the suit was insufficiently stamped and requiring her to make good an alleged deficiency of Rs. 2729.50 on pain of dismissal of the suit.
2. The appellant filed a suit for the partition of her half share in property which she alleged to be joint. She is the widow of a deceased coparcener and the defendants in the suit are that coparcener's widow (appellant's devarani) and her sons. One of the defendants alleged in the written statement that the appellant was not entitled to any share as her deceased husband had left a will in favour of his brother. The appellant in her replication alleged that her husband had executed no will and if the defendants had any alleged will in their possession it was a forgery. She pleaded in the alternative that it was invalid.
3. Thereupon the Government Stamp Inspector intervened and contended that the appellant's suit was also one which involved the cancellation of the will or an adjudication that it was void, and she must pay additional court fee. This contention was upheld by the learned Civil Judge. The appellant has come here in appeal.
4. Meanwhile the appellant paid the court-fee and the suit was decreed in her favour. The Court held that the alleged will was a forged document. This however does not affect the merits of this appeal.
5. I have heard Mr. K. N. Tripathi for the appellant and Mr. R. K. Agarwala for the State. I think the order of the learned Judge is erroneous.
6. There is a vital difference between asking for a judicial declaration that a document is void and alleging that a document set up in defence is forged. A void document is one which is ineffective due to a vital defect which is fatal to the validity of the document as for example, if it was obtained by fraud or if (in the case of a will) the maker was non compo mentis, and so on. The onus is on the party seeking a declaration that the document is void to prove the defect.
7. But where a plaintiff sues for partition of joint family property and the defendants set up in defence a will, and the plaintiff alleges that the deceased left no will, he does not have to ask for a declaration that the alleged will is void. His case is based on his right to inherit, and it is for the defendant to defeat that right by proving the will: Kishan Lal v. A. S. Higher Secondary School Jahangirabad, 1963 All LJ 353: (AIR 1963 All 330). If the Court finds on evidence that the document was in fact forged the defence to the suit fails that is all. But a forged document is really no document and needs no cancellation. It is true that the plaintiff contends in the alternative that the alleged will, if any, was invalid but she asked for no declaration of its invalidity. A bona fide plea that a document produced by the defence is forged and in the alternative invalid, is not a suit for a declaration of its invalidity. A plaintiff does not have to pay court fee on such a plea, particularly when it becomes immaterial after the Court's finding that the document is forged.
8. If the argument of the State that the plaintiff must pay extra court fee is accepted, it would mean that any defendant in a suit can compel the plaintiff to pay extra court fee by producing a forged document in defence.
9. This case illustrates the vice inherent in a law which imposes tax on the citizen's prayer for justice from the sovereign. Dispensing justice, or danda-nyaya, has been the primordial attribute of sovereignty from the earliest times; in the Mahabharata the very right to govern is made subject to the condition that the ruler shall not deny justice to the people. But a law imposing different rates of court fee according to the nature or value of the suit makes the State virtually a purveyor of justice and gives it a vested interest in making justice as expensive as possible. But this Court cannot accept an interpretation of the relevant clause in the Court Fees Act which is not borne out by the language of the clause, and which will make the Act more oppressive than it is, and give the State a vested interest in every forged document produced in defence and a community of interest with the forger.
10. I allow the appeal with costs, set aside the order of the learned Civil Judge and hold that the appellant is not liable to pay additional court fee under Section 7(iv)(a) of the Court Fees Act, or any other law. I further direct that the additional Court Fee which the appellant was compelled to pay shall be refunded. A certificate to this effect shall issue from this Court.