S.M.N. Raina, J.
1. This is a revision petition under Section 115 of the Code of Civil Procedure.
2. Non-applicant No. 1 filed a suit for declaration of her title over the land in suit and for confirmation of possession thereof. She paid court-fees of Rs. 30/-on the relief of declaration and of Rs. 55/-on the relief of confirmation of possession on the basis of half of 20 times of the land revenue of the land as she claimed only half share therein. The defendant-applicant raised an objection that the suit was not properly valued for court-fees. This objection was disallowed by the trial Court. Being aggrieved thereby the applicant has filed this revision petition.
3. The case of the plaintiff as laid in the plaint is as follows. She is an old illiterate village woman residing in the interior of Chhindwara district having no knowledge or experience of the working of Courts and offices. She owns half share in the land in suit. The other half is held by her sisters-in-law. Defendant No. 1 who is her uterine brother resides in a nereby village and the plaintiff seeks his advice from time to time. Thus he wielded considerable influence on her and gained her confidence. In or about 1971, some of the relations of plaintiff's husband interfered with her possession over the lands. Plaintiff, therefore, approached defendant No. 1 for advice. Defendant No. 1 advised the plaintiff that it would be necessary to make an application to the Collector, Chhindwara and this would entail on expenditure of Rs. 200/-. This amount was accordingly paid by the plaintiff to defendant No. 1. On the aforesaid representation the defendant No. 1 took the plaintiff to Chhindwara and he managed to secure her thumb impression on some papers on the representation that she was merely making a petition to the Collector. Thereafter she was produced before an officer and she said 'yes' to every question put to her directly. Later on the plaintiff came to know that defendant No. 1' had fraudulently obtained her thumb impression on the sale-deed. She immediately sent for defendant No. 1 and accused him of cheating her and thereupon defendant No. 1 expressed regret and agreed to execute deeds of retransfer. As the defendant No. 1 did not do anything thereafter and on the other hand transferred the lands to defendants 2 to 5 on 1-4-1972, the plaintiff filed this suit.
4. The contention of the learned counsel for the applicants is that since the non-applicant No. 1 was a party to the sale-deed which was ostensibly for a consideration of Rs. 18,000/- it was necessary for her to seek the relief of cancellation of the document and as such she was bound to pay ad valorem court-fees on the sum of Rs. 18,000/-. In respect of his contention he relied upon a number of decisions to which I shall presently refer.
5. Learned counsel for the applicant relied mainly on the Full Bench decision of this Court in Santoshchandra v. Gyansunder Bai, 1970 MPLJ 363 = (AIR 1971' Madh Pra 1) (FB). It was held in that case that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, he must seek the relief of having that decree, agreement, instrument or liability set aside and he is not entitled to a declaration simpliciter in such cases. This decision was followed in Sunderbai v. Manohar Singh Yadav, 1974 Jab LJ (SN) 75. In that case plaintiff had filed a suit for a declaration and for permanent injunction alleging that the sale deed in question was got executed by her by playing fraud. The plaintiff was held liable to pay ad valorem court-fees under Section 7(iv)(c) of the Court-fees Act. From the aforesaid decisions it is clear that where a person who is party to an agreement or transaction and his allegation is that it is not binding on him because it was obtained by misrepresentation or fraud, it is necessary for him to seek the consequential relief of setting aside such agreement or transaction and as such the suit falls within the purview of Section 7(iv)(c) of the Court-fees Act. But the question of avoiding an agreement or an instrument arises only where it is voidable. If it is wholly void a mere declaration that it is so, is sufficient and it is not necessary for the plaintiff to seek the relief of setting aside something which has no existence in law. It is not necessary to ask for relief of setting aside an agreement or an instrument which is wholly void.
6. The question whether the suit is really one for a declaration with the consequential relief or not has to be determined by looking to the pleadings of the plaintiff only, vide Manoharsingh Nathasingh v. Parmeshwari. AIR 1949 Nag 211. If we carefully examine the allegations in the plaint it would appear that the case of the plaintiff is that she did not execute the sale-deed in question; that she did not receive any consideration of the sale and that she was not a party to any document of sale. From these allegations it would appear that there was no sale at all and the plaintiff is merely seeking a declaration that she did not execute the sale-deed in question and thus did not transfer any property to the defendants. As such it is not necessary for her to seek relief of setting aside the sale-deed in question, because, as pointed out above, the question of seeking the relief of setting aside something which has no existence in law, does not arise. In such a case bare declaration would suffice.
7. Voidable transfer remains vaild until avoided and, therefore, it is necessary to avoid it by seeking the relief of setting it aside. But a transaction, which is void ab initio, must be deemed to have never taken place. It is not to be regarded as an alienation which is perfect till it is set aside. There is a clear distinction between a fraudulent mis-representation as to the character of a document and as to its contents. Where the misrepresentation is both as to contents as well as character of the document, the transaction is wholly void.
8. In Ningawwa v. Byrappa Shid-dappa Hirekurabar, AIR 1968 SC 956 their Lordships held that a contract or other transaction induced or tainted by fraud is not void, but only voidable and until it is avoided it remains valid. Their Lordships, however, pointed out that the legal position is different if there is a fraudulent mis-representation not merely as to the contents of the document but also as to its character and in such a case the transaction is void. In the instant case, the allegation of the plaintiff is that the fraudulent misrepresentation was not only as to contents of the document on which she was asked to affix her thumb-mark but also as to its character. She is, therefore, merely seeking a declaration that the sale-deed which she never executed and to which she was never a party was void. In such a case it is not necessary for her to seek the relief of setting aside the sale-deed and, therefore, no consequential reief is implicit in the relief of declaration which may require ad valoram court-fee under Section 7(iv)(c) of the Court-fees Act. It is no doubt true that the plaintiff has also sought a relief of confirmation of possession but she has already paid the court-fees in respect of the said relief and no objection was raised as to the sufficiency of the court-fees in respect thereof.
9. I do not, therefore, find any justification for interference in this case.
10. The petition, therefore, fails and is hereby dismissed I do not, however, make any order as to costs, in the circumstances of the case.