R.S. Narula, C.J.
1. This is a petition for revision of the order of the Court of the Subordinate Judge Second Class, Mansa, dated March 25, 1971, whereby he decided the preliminary issue relating to proper valuation of the plaint for purposes of court-fee and jurisdiction of the suit filed by the plaintiff-petitioner for a declaration to the effect that the gift-deed made by him was null and void as having been procured by fraud and for cancellation of the same. The plaintiff valued the suit for purposes of court-fee as well as for jurisdiction (vide paragraph 14 of the plaint) at Rs. 350-10 P. calculated on the basis of 30 times the land revenue of Rs. 11.67 P. Relyine on the judgment of P.C. Pandit, J. (as he then was) in Jagat Singh v. Avtar Singh, 1970 Cur LJ 80, the trial Court held that ad valorem court-fee was payable on the plaint under Article 1 of Schedule I to the Court-fees Act 1870, on the value of the property involved that is on Rs. 37,000/-which was the value of the property mentioned in the impugned gift-deed. Having given a finding to that effect, thelearned Subordinate Judge did not fix any time for making up the deficiency in court-fee as on the basis of the valuation determined by him, the suit was beyond his pecuniary jurisdiction. He therefore, directed that the same should be transferred to a Court having jurisdiction to try the same.
2. When this petition came up for hearing before P.C. Pandit. J. on March 21, 1972, he directed the same to be referred to a Full Bench in view of the divergence of judicial opinion noticed by the learned Judge on the point whether Article 1 of Schedule I or Section 7(iv)(c) applies to a suit of this type. Reference was made in this connection to the Full Bench judgment of the Patna High Court in Mt. Rupia v. Bhatu Mahton. AIR 1944 Pat 17, and a Division Bench judgment of the Rajasthan High Court in Sukh Lal v. Devi Lal. AIR 1954 Raj 170. On a subsequent date when the case was put up before the learned Judge again on December 11, 1973, it was contended before him that the controversy had in fact been settled by the Supreme Court in Shamsher Singh v. Rajinder Parshad, AIR 1973 SC 2384. The learned Judge, therefore, recalled his previous order and directed the office to set down the case for rehearing as the counsel for the parties wanted to argue the matter in the light of the above mentioned Supreme Court judgment. This is how the case has now been placed before me.
3. Mr. Harbans Lal, learned counsel for the plaintiff-petitioner, has contended that the suit filed by his client is in fact for a pure declaration and the prayer made for cancellation of the gift-deed is at best a mere surplusage, which according to the law laid down in Sheel Kumar v. Aditya Narain, (1964) 66 Pun LR 916, be ignored for purposes of determining the value of the suit for purposes of court-fee. In the Division Bench judgment of this Court in Sheel Kumar's case it was held that the suit for mere declaration that the partition between the son, the father and step-mother was merely a sham transaction and was entered into for ulterior purposes, and, therefore, in fact there was no partition which affected the plaintiff's status as a member of the joint Hindu family was competent, and that a prayer for the cancellation of the deed of partition was purely a surplusage and could be ignored for purposes of court-fee and jurisdiction, as on recording the finding that there was no partition, eventually nothing would remain to be cancelled. That is not the situation here. The case of the plaintiff in the present case is not that the gift-deed was in fact never executed or that it was a sham transaction. On the contrary his case is that the document was executed by him but the execution thereof had been brought about by fraud etc. If the case of the plaintiff is proved, it would not be held that no gift-deed was in fact ever executed, and none was in existence or that the same was a sham transaction, but it would in that eventuality be held that the gift-deed was not binding on the plaintiff as it was void on account of fraud, etc. Jagat Singh's case 1970 Cur LJ 80 has been correctly distinguished by counsel on the ground that whereas possession had been claimed in that suit, the plaintiff petitioner is admittedly in possession of the property in dispute, and therefore, there is no question of paying court-fee on the value of the property by treating this as a suit for possession.
4. Mr. Harbans Lal next referred to the Division Bench judgment of this Court in Inder Singh v. Mst. Nihal Kaur, 1968 Cur LJ (Punj and Har) 95 - (AIR 1968 Punj 495). It was held in that case that where a plaintiff claims a declaration for adjudging the disputed document to be void, it is not necessary for him to claim for the document to be delivered up and cancelled, and that it is in the discretion of the Court to do so if it finds necessary to adopt that course. No prayer had at all been made in that case for the cancellation of the document. In the instant case, however, specific prayer has been made for that relief. The observations of the Division Bench in Inder Singh's case (supra) have, therefore, no application to the facts of the present case.
5. Learned counsel for the plaintiff-petitioner has lastly contended that according to the authoritative pronouncement of the Supreme Court in AIR 1973 SC 2384, a suit of the kind filed in the instant case can at best be held to be a suit for declaration accompanied by a prayer for setting aside or cancellation of the sift-deed, and that it would then be covered by Section 7(iv)(c) of the Court-fees Act, and would not even in that eventuality attract the provisions of Article 1 of Schedule I. Counsel points out that in Shamsher Singh's case. AIR 1973 SC 2384 valuation of the suit for purposes of jurisdiction had been mentioned as Rs. 16,000/- and, therefore, a direction to pay ad valorem court-fee was given. As against that, contends counsel, the value of the present suit for jurisdiction has also been given in the plaint as Rs. 350-10 P., and even if Section 7(iv)(c) of the Court-fees Act is held to be applicable, correct court-fee has been paid on the plaint of this suit.
6. It appears to me that the prayer for cancellation of the gift-deed hasto be taken into consideration for determining the court-fee payable on the plaint of this suit. In fact even if the plaintiff had not asked for such relief, it would have to be implied. The gift-deed on the face of it transferred the property covered by it to the donees, and unless the said document is cancelled on one ground or the other, the plaintiff would not be able to avoid it. Even so, contends the counsel, the plaint of the suit would be covered by Section 7(iv)(c). The view expressed earlier in some judgments to the effect that cancellation of a document must always be treated as substantial relief, and cannot be treated to be consequential one does not appear to hold the field now in view of the authoritative pronouncement of the Supreme Court in Shamsher Singh's case. The difficulty which was felt by Pandit. J. at the earlier stage was that according to the Full Bench judgment of the Lahore High Court in Mt. Zeb-ul-Nisa v. Chaudhri Din Mohammad, AIR 1941 Lah 97, and the Full Bench judgment of the Allahabad High Court in Kalu Ram v. Babu Lal, AIR 1932 All 485, the expression 'consequential relief in Section 7(iv)(c) means some relief which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained, and which is not specifically provided for anywhere in the Act, and cannot be claimed independently of the declaration as a substantive relief. That question no more arises in view of the judgment of the Supreme Court.
7. Mr. H.C. Garg, learned counsel for the respondents, submits that unless the gift-deed is first cancelled, the declaration prayed for by the plaintiff cannot be granted to him, and therefore, ad valorem court-fee has to be paid on the value of the property mentioned in the gift-deed. In fact this does not appear to me to be the position. The plaintiff would first have to prove that the gift-deed was got executed from him by fraud. If he is able to Drove the allegation made by him in that behalf, he would be entitled to the declaration claimed by him, and in that event he would also be entitled to the consequential relief to have the gift-deed cancelled. I, therefore, hold that the case is covered by Section 7(iv)(c) of the Court-fees Act, and the plaint of the suit is properly valued.
8. This revision petition, therefore, succeeds, the order of the lower Court is reversed, and the trial Court is directed to proceed with the trial of the suit on merits in accordance with law. The parties are directed to appear before the Subordinate Judge First Class, Mansa, onMarch 24, 1975. Costs of these proceedings shall abide the result of the suit.