1. This petition arises out of a question of court-fee. The circumstances are, one hopes, unusual. The plaintiff says that he entered into a sale deed with the defendant which was drawn up on seven pieces of papers numbered consecutively. The defendant apparently drafted the document and according to the plaintiff was clever enough to make each page complete in itself so far as the language is concerned. Then before he presented the document for registration he abstracted page 5 which contained a most material clause in favour of the plaintiff. I am told that the plaintiff objected but the registrar nevertheless registered the document. The plaintiff apprehends that it may be used against him in the future. He has therefore filed a suit setting out these allegations and specifying the alleged fraud of the defendant. In the prayer he asks for the following relief:
The plaintiff prays the Court to pass a decree declaring that the document dated 17th November, 1943, purporting to have been executed by the plaintiff to the defendant and registered on 17th February, 1944, is void and of no legal effect.
In the lower Court and here the plaintiff contends that his suit is one for a declaration only and that he asks for no consequential relief. The suit should therefore be stamped in accordance with Article 17-A, Schedule II of the Court Fees Act, the appropriate fee being Rs. 100. On the other hand, it is contended that the suit is in essence one for cancellation of a document and should be stamped in accordance with Section 7 (iv-A), namely, according to the value of the subject-matter of the suit.
2. The matter is not free from difficulty and there are a great many conflicting decisions, but so far as this Court is concerned I think that the true view is expressed quite clearly in Nagabhushanam v. Venkatappayya (1934) 68 M.L.J. 95 : I.L.R. 58 Mad. 448, a decision of Venkatasubba Rao, J. In that case the plaintiff said that a certain sale deed had been forged and he prayed that the instrument might be declared to be a forgery. Venkatasubba Rao, J., said:
When a person impeaches a deed as having been forged to refer to him as being a party to it, is an obvious misuse of words.
The facts are not quite the same here because the plaintiff admits that pages 1, 2, 3, 4, 6 and 7 are genuine and were initialled or signed by him. He says, however, that to represent those pages alone as being the true deed is wrong and that he was not a party to whatever may be thought to be represented by those particular pages.
3. Because a man's name or initials appear on some but not all of the pages of a contract it does not make him a party to it. I think that the plaintiff here is entitled to impeach this document and to pray in aid Section 39 of the Specific Relief Act. This section provides that:
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.
Now here the plaintiff says that the document as it subsists is not what he agreed to. He says that he purchased the properties concerned from someone else's widow and litigation at the instance of reversioners is threatening. The object of including the term of page 5 was to protect him agianst any such attack and to provide that the defendant should assume the burden of resisting such litigation, The provisions of Section 39, therefore, seem to be applicable and the plaintiff merely asks that the document shall be declared void.
4. In the case above cited Venkatasubba Rao, J., deals with Section 39 and, referring to a previous decision of a Bench of which he was a member, he says that the plaintiff is entitled to ask merely for a declaration that the document is void, The fact that the Court may go on to order it to be cancelled and will in such case send directions to the registration officer is not a matter for the plaintiff to request but the duty of the Court to grant. In Pollock and Mulla's text book on the Specific Relief Act the learned authors appear to think somewhat differently and to declare that even if the plaintiff merely prays for a declaration that the document is void, nevertheless, the suit is in no sense merely declaratory. With respect, I prefer the Bench case referred to by Venkatasubba Rao, J., namely, Kattiya Pillai v. Ramaswamia Pillai (1939) 56 M.L.J. 394 and the learned Judge's own observations.
5. In a case such as this where a plaintiff finds himself to have been deliberately deceived, if such be the case, it would appear to be unjust that in seeking to put matters right he should have to find the market value of the property, whatever i be, on the day on which he files his plaint.
6.For these reasons, I think that the court-fee should be paid under Article 17-A schedule II of the Court-Fees Act. This petition is allowed. No costs.