Venkatasubba Rao, J.
1. In my opinion, the view of the Court-fee Examiner and the decision of the District Munsif supporting that view, are clearly wrong. There is a distinction between the getting rid of a document to which a person is a party and one to which he is not. The plaintiff in the suit complains that the sale-deed was forged by the defendant, that in spite of his objection, the Registrar directed its registration and he prays that the instrument may be declared to be a forgery.
2. When a person impeaches a deed as having been forged, to refer to him as being a party to it, is an obvious misuse ofss words. Mr. K. Subba Rao, who supports the lower Court's view, contends that the provision applicable is Section 7(iv-A) of the Court-Fees Act, which runs thus:
In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value, according to the value of the subject-matter of the suit, and such value shall be deemed to be - if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed, if a part of the decree or other document is sought to be cancelled, such part of the document or value of the property.
3. His contention is that for the purposes of the Court-Fees Act, it is incumbent upon the plaintiff to have even a forged sale deed set aside or cancelled; in other words, that the section (in regard to the decrees and instruments of the kind dealt with by it) forbids declaratory suits and enacts that cancellation should always be prayed for. This argument is, in my opinion, utterly untenable. To declare what the substantive rights of the parties are or to prescribe the modes of enforcing those rights, is outside the province of a fiscal enactment, like the Court-Fees Act. The question then really is, when a person alleges that a forged instrument has been brought into existence as if he were a party to it, does the law cast upon him a duty to have it cancelled or set aside by suit? There are two statutory provisions which show that a suit for declaration lies: (1) Section 39 of the Specific Relief Act: Illustration (b) to that section contains an express reference to forged instruments and (2) Article 92 of the Limitation Act refers to suits 'to declare the forgery of an instrument issued or registered.' While the law thus entitles a person to sue to have the document adjudged a forgery, does it compel him or make it obligatory upon him to get it cancelled or set aside? The cases cited by Mr. Subba Rao refer to instruments or decrees to which the plaintiff was a party. In Arunachalam Chetty v. Rangaswami Pillai I.L.R.(1914) 38 Mad. 922 : 28 M.L.J. 118 the referring Judges clearly point out the distinction between a document to which a person is a party and that to which he is not. When a document is of the former class, they point out that until it is set aside, it cannot be treated as void and that the necessary result of declaring that such a document is not binding on the plaintiff, is to cancel or set aside the deed. The case might be different, they go on to add, where a declaration is sought by a person who is not a party to the document; the suit may in such a case be properly regarded as one for declaration only. In the second case referred to by the learned Counsel, namely, Venkatasiva Rao v. Satyanarayanamurty I.L.R.(1932) 56 Mad. 212 : 63 M.L.J. 764, this distinction is equally borne in mind. Adverting to Balakrishna Nair v. Vishnu Nambudiri (1930) M.W.N. 509 Reilly, J., affirms that it was correctly decided, because the plaintiffs there, not having been parties to the decree, could have asked only for a declaration and it would not have been appropriate for them to pray that the decree should be set aside. Throughout his judgment, the learned Judge makes it perfectly clear that he is dealing with decrees obtained by fraud; in such a case, the plaintiff being a party to the decree which, he complains, is vitiated by fraud, there can be no doubt that he must get it set aside. Anantakrishna Aiyar, J., refers to this distinction in even clearer terms. Observes the learned Judge, 'In fact not being a party to the document, he cannot have it 'set aside'. All that he can pray for is a declaration that he is not affected in any way by that document.' Dealing with the case of a forged will, I made the following observation in Kattiya Pillai v. Ramaswamia Pillai : AIR1929Mad396 , which, I think, applies with equal force here:
For instance, if a person, who feels aggrieved by a will, sues for recovery of immoveable property covered by it which happens to be in the possession of a third party, claiming the property on the strength of the will, can it be successfully contended that such a suit is governed not by the ordinary 12 years period but that the plaintiff is first bound to get the will set aside within the shorter period provided by Article 91 of the Limitation Act. Such a contention cannot prevail.
4. In Ratnamasari v. Akilandammal I.L.R.(1902) 26 Mad. 291 : 13 M.L.J. 27 there is an observation of Bashyam Ayyangar, J., which is even more germane to the present discussion, as it deals with forged instruments. The learned Judge treats it as beyond doubt, that when a person seeks to recover immoveable property, the period of limitation is not under Articles 92 and 93 abridged, because the defendant resists the action by relying upon a forged conveyance (See p. 313). In deciding what the proper Court-fee payable is, the Court must have regard to the substance of the thing and not to the mere form in which the relief has been prayed for. Kattiya Pillai v. Ramaswamia Pillai : AIR1929Mad396 . Where it is therefore essential for the plaintiff to pray for cancellation, he cannot, by merely asking for a declaration, evade the provisions of the Court-Fees Act. But in the present case I am clearly of the opinion that the only relief that the plaintiff can ask for, is that of declaration and that a prayer for cancellation would be quite inappropriate.
5. It is next contended that Section 39 of the Specific Relief Act itself shows that the plaintiff is under a duty to pray for cancellation also. In overruling a similar contention, I made the following observations in Kattiya Pillai v. Ramaswamia Pillai : AIR1929Mad396 already referred:
The plaintiff asks that the will may be declared void. That section further enacts that in such a suit the Court may, in its discretion, adjudge the instrument void or voidable and order it to be delivered up and cancelled. In a suit rightly framed under that section, it is the Court's function to order the instrument to be cancelled; it is not a part of the prayer in the plaint. Then again, the section goes on to say that if the instrument is one that has been registered under the Registration Act, the Court shall send a copy o its decree to the Registration Officer, who shall note in his book that the instrument has been so cancelled. This, again, is not a relief which it is the duty of the plaintiff to sue for, but is the duty of the Court to grant.
6. Who was also a party to that judgment, concurred in this view.
7. As to the effect of registration, I think the judgment in Mohima Chunder Dhur v. Jugul Kishore Bhuttacharji I.L.R.(1881) 7 Cal. 736 may be usefully referred to. As in the present case, the defendant there obtained from the Registrar, an order for the registering of the document, and the plaintiff, alleging it to be a forgery, brought the suit to have it declared void. The learned Judges held that the decision of the Registrar, whose proceedings were only those of an executive officer, did not have even the effect of shifting the onus of proof and that it lay upon the defendant to establish that the deed impeached was genuine.
8. I must mention that Mr. Subbarao has brought to my notice the decision of Stone, J., in Civil Revision Petition No. 1597 of 1933. He says that in circumstances somewhat similar, the learned Judge held that the case fell within Section 7(iv-A). The judgment contains no discussion and merely purports to follow Venkatasiva Rao v. Satyanarayanamurty (1932) I.L.R. 56 Mad. 212 : 63 M.L.J. 764 which, as 1 have shown above, does not bear out the learned Counsel's contention.
9. Lastly, it is argued that the prayer for the refund of the costs incurred in the registration enquiry must be deemed to be one for consequential relief. I do not think this contention requires serious notice. The relief for the refund is undoubtedly an additional relief but in no sense a consequential relief; it is not a relief consequential upon the declaration.
10. My decision therefore is, that so far as the relief of declaration is concerned, the case falls under Schedule II, Article 17-A(i), and that the Court-fee that the plaintiff has paid, is proper. In regard to the refund claimed, ad valorem fee on the amount should be paid.
11. I make no order as to costs.