1. This is a first appeal from a decision, dated 17th 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 23rd July 1923, and 27th 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 25th 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 5th 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 15th 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. Musa Mal 1935 ALJ 869; Sri Krishna Chandra v. Mahabir Prasad 1933 ALJ 673 and Abdul Samad Khan v. 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. Babu Lal 1932 ALJ 684, (ii) Suraj Ket Prasad v. Chandra Mal 1934 ALJ 955. We were also referred, by learned Counsel for the respondents, to a decision reported in Ram Chhabila v. 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. 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.
4. Section 42 of the Act is as follows:
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 any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
5. Now in the present suit it is clear that the plaintiff was not, strictly speaking, asking for any declaration as to his own legal character, or as to his own right to the property in question. He was asking that the property entered in the mortgage deeds concerned be declared to be the property of the 'math,' and not transferable, and that the defendants be declared to have no right to have the property sold by auction. In Kalu Ram v. Babu Lal 1932 ALJ 684, the first relief claimed was that a mortgage deed dated 20th December 1918, might be declared void and ineffectual as against the plaintiffs, and it might be cancelled. That relief was held to fall neither under Section 7(iv)(c), nor under Schedule 2, Article 17(iii), Court-fees Act, but Schedule 1, Article 1 of the Act. It was pointed out in the course of that decision that under Section 39, Specific Belief Act, a plaintiff need not ask, in express terms, for a document to be delivered up and cancelled. It was also said:
A relief to have a registered instrument adjudged void or voidable, with the possible result of its being delivered up and cancelled and a copy of the decree being sent to the registration office for a note to be made by the registering officer in his books, is much more than a mere declaratory relief. It is undoubtedly a substantial relief of a nature differing from a declaratory one.
6. It was furthermore pointed out in that decision that Section 39, Specific Belief Act, is in Ch. 5, which is headed, 'Of the Cancellation of Instruments,' whereas Oh. 6, in which Section 42 falls, is headed, 'Of Declaratory Decrees.' This shows, it was held, that the legislature obviously intended to draw a distinction between a decree adjudging a written instrument void or voidable, which may result in its cancellation, and a mere declaratory decree, In the present case, the plaintiff sought, in effect, to have the two mortgage-deeds in question adjudged void, and we are clearly of opinion that the suit must be regarded as falling under Section 39, Specific Relief Act, and as being not of a purely declaratory nature. We are therefore of opinion that an 'ad valorem' court-fee was properly required by the learned Court below, and that when the fee was not paid the suit was rightly dismissed. We accordingly dismiss this appeal with costs.