P L D 1965 Dacca 439 (PLP)

HASAN, J.‑

In his suit the plaintiff, asserting possession through tenants, and alleging, inter alia, that certain registered documents purported to have been executed and registered by him, some in favour of the defendant No. 1 and some in favour of defendant No. 2, were really executed by one Kalipada Banik falsely personifying him as the plaintiff in those documents, prayed for declaration:‑ (a) that the documents as described in the Schedule "A" below are void ab initio and that the defendants have acquired no interest in the suit premises by virtue of the aforesaid documents; (b) that the documents mentioned in the Schedule `A' below have been brought into existence by forgeries and false personations and that no consideration did pass by the said documents. The learned Subordinate Judge was of opinion that the plaintiff was to pay ad valorem court‑fee as the plaintiff in the form of declaration was seeking some other relief which was no doubt of consequential relief and accordingly directed the plaintiff to pay ad valorem court‑fee. As against that the plaintiff moved this Court and obtained a Rule. That matter came up for hearing before a Division Bench of this Court, which differed from the decision given by another Division Bench of this Court in an unreported case in Civil Revision No. 307 of 1949 disposed of on 22nd September 1949, and referred the matter to the Full Bench as it involved an important question of law. Mr. Bose, the learned Advocate for the petitioner, has contended that his plaint as framed comes under section 42 of the Specific Relief Act and as such only fixed court‑fee is liable to be paid by his client as required by Article 17(iii) of Schedule II of the Court‑Fees Act. It has been further contended that assuming the plaint also comes under section 39 of the Specific Relief Act, even in that case, the suit being a declaratory one, his client is liable to pay only a fixed court‑fee and in so declaring if it be necessary that the documents in question shall have to be cancelled, then, in that case, as it is the duty of the Court to cancel those documents under the said section, his client is not liable to pay ad valorem court‑fee but a fixed court‑fee. For this proposition of law he has relied on the cases of Umarannessa Bibi v. Jahurannessa Bibi and another (37 C L J 499), Kattiya Pillai and another v. Ramaswamia Pillai and others (A I R 1929 Mad. 396), C. R. Ramaswami Ayyangar, Minor v. C. A. S. Rangachariar and others (A I R 1940 Mad. 113), Ma Wa Nu and others v. Ma Than (A I R 1941 Rang. 269), Bishan Sarup v. Musa Mal and others (A I R 1935 All. 817) and Joseph Lazarus v. Isha Khan (A I R 1958 Pat. 108), while on the other hand, the learned Senior Government Pleader and Mr. Abdul Matin Khan Choudhry appearing for the opposite‑parties have contended that as the suit comes under section 39 of the Specific Relief Act and also as the language of the plaint shows that the plaintiff has claimed for several consequential reliefs, the plaintiff is liable to pay ad valorem court‑fee as observed by the learned Subordinate Judge and for this proposition of law reliance has been placed on the cases of Kalu Ram v. Babu Lal and others (A I R 1932 All. 485); Mst. Wazir Begum v. Haji Ashiq Hussain and others (P L D 1957 Lah. 126) and Mst. Rupia v. Bhatu Mahton and others (A I R 1944 Pat. 17). It is found from the decisions cited by the learned Advocate for the petitioner that when a suit comes under section 39 of the Specific Relief Act, the plaintiff is not to pay ad valorem court fee even in presence of a prayer for cancellation as the prayer for cancellation of document is superfluous inasmuch as under the provision of section 39 of the Specific Relief Act the Court is bound to give that relief when it is found that the document in question needs to be cancelled. I am unable to accept the, proposition that whenever a suit comes under section 39 of they Specific Relief Act, though there is a prayer or no prayer fold cancellation of the document, the Court is bound to give the relief to the plaintiff by cancelling the instrument and the plaintiff is not to pay ad valorem court‑fees for such relief. The statute lays down some procedure and the relief that may be available to a certain person in that procedure but that does not necessarily mean that when there is no prayer for any relief, the Court is bound to give the necessary relief to the plaintiff. Right to sue is dependent on cause of action and the cause of action arises when one's right is violated, and when one's right is violated one is entitled to get relief. In order to have that relief one is to adopt an appropriate procedure provided by law and to seek for one's relief in that. Hence in the absence of a prayer for an appropriate relief the action is not entertainable. So in order to maintain one's action there must be prayer for appropriate relief; and accordingly an appropriate relief may be granted when it is prayed for and not otherwise. Now coming to section 39 of the Specific Relief Act, we find it provides for "When cancellation of a written instrument may be ordered". The language of the section does not make it obligatory on Court to order the instrument to be delivered up or cancelled. It only provides for a relief which may be sought for and may be available in an appropriate case when it is prayed for and not otherwise. The following reasons of mine also seem to support my above view:‑ (1) where the illegality of any agreement, deed or other written instrument appears upon the face of it, so that its nullity can admit of no doubt, the reason for the interference of the Court to direct it to be cancelled or delivered up might not arise, as in such cases there may be no danger as lapse of time may deprive a party of its defence but where illegality or nullity is non‑apparent, the danger of its use in defence is always there, the Court may give the relief by cancelling or delivering up but that relief shall have to be prayed for and unless prayed for, that cannot be imposed upon the plaintiff. (2) A person though not a party in a written instrument directly or mediately may have reasonable apprehension that such a document if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable. In that case he is not in a position to pray for cancellation. (3) A suiter has absolute liberty to frame his suit as he likes; of course, he is to suffer or gain for so doing. The Court has, accordingly, no authority to compel him to frame his suit in a particular manner. Hence it is his option to make or not to make a particular prayer. For the above, a person may or may not choose to or may or may not be required or to pray for cancellation and as such in the absence of such a prayer the Court cannot impose upon that person to make a prayer for cancellation and order the written instrument to be cancelled or delivered up. My above view is also supported by the following observa tion of Niamatullah, J. which I fully endorse, in the case of Bishan Sarup v. Musa Mal. "Consideration of the frame of the suit for the purposes of court‑fee and that for the purposes of decision of the suit must be kept severely apart. If the plaintiff says that he deliberately limits his relief to declaration, no impediment should be thrown in his way for that purpose. When the Court comes to consider the merits of the case, it must pin down the plaintiff to his choice; and if he has made an error in that respect, he must take the consequences. But in determining the court‑fee payable the Court should not allow its mind to be influenced by the consequences which might, in its opinion, follow from the plaintiff's action. Nor should the Court be influenced by the consideration that the plaintiff is actuated by motives of economy and is evading payment of court‑fee by not suing for cancellation and suing only for a declaration. It is perfectly legitimate for the plaintiff to avoid the payment of highter court‑fee by so framing his suit as to diminish his liability in that respect. Section 6, Court‑Fees Act, cannot subject at plaintiff to liability to pay court‑fee for a relief which he does not ask for. If he claims both the reliefs of declaration and cancellation as he may in certain cases, he must pay for both; but where, on the construction of his plaint in the light of his averment, the Court comes to the conclusion that the plaintiff claims a declaratory relief and not cancellation of an instrument, there is nothing in section 6, which justifies a demand for two fees." In the case of Sri Krishna Chandra v. Mahabir Prasad and others (I L R 55 All. 791), Sulaiman, C. J., observed: "Obviously, the Full Bench did not intend to lay down that where the plaintiff deliberately omits to claim a consequential relief and contents himself with claiming a mere declaratory decree, the Court can call upon him to pay court‑fees on the consequential relief which he should have claimed although he has omitted to do so." From the above observation of his Lordship Sulaiman, C. J. it appears that the decision that was given by the Full Bench in the case of Kalu Ram v. Babu Lal and others did not lay down the proposition that when the plaintiff did not claim for the cancellation of the document, the plaintiff had to pay ad valorem court‑fee. The same view has also been taken in the case of Mst. Rupia v. Bhatu Mahton and others. Having in view the above principle of law, I am to see for the purpose of court‑fee only, whether the plaintiff has prayed for any consequential relief or any substantial relief, or merely a declaratory one. From prayer (a) it appears the plaintiff has made two prayers for declaration (1) that a declaration be made that the documents as described in Schedule A below are void ab initio and (2) for a declaration that the defendants have acquired no interest in the suit premises by virtue of the afore said documents and from prayer (b) it appears to me that it is nothing but the grounds in support of the prayers in prayer (a) because the prayers (a) and (b) may be formulated as follows: A declaration that the documents as described in Schedule `A' below are forged ab initio and that the defendants have acquired no interest in the suit premises by virtue of the said documents for the documents referred to in Schedule `A' below have been brought into existence by forgeries and false personations and without any consideration. Of the prayers as now appear the first prayer for declaration that the document as described in Schedule `A' below are void ab initio comes under section 39 of the Specific Relief Act and the second prayer that the defendants have acquired no interest in the suit premises by virtue of the aforesaid documents comes under section 42 of the Specific Relief Act. So in my opinion, the prayers as made in the plaint taken together with the other statements in the plaint, it appears to me, show that the plaintiff only has made some prayers for declaration and nothing more, and as such the plaintiff is liable to pay fixed court‑fee under Article 17(iii), Schedule II of the Court‑Fees Act for each declaration. It may be noted here, that my above decision is only for the purpose of court‑fees and not for the purpose of decision of the suit. SATTAR, J.‑

In this application under section 115 of the Code of Civil Procedure, an order of the learned Subordinate Judge, 1st Court, Dacca, in Title Suit No. 129 of 1960 directing the plaintiff‑petitioner before us to pay ad valorem court‑fee under section 7(iv)(c) of the Court‑Fees Act on a plaint filed by him with a fixed court‑fee of Rs. 20 under Article 17(iii) of Schedule It of the Court‑Fees Act has been challenged. The petitioner has filed the suit, out of which this application arises, alleging that he is the miner and to possession of premises Nos. 3/7/1 and 317/2 Johnson Road (now Liaquat Avenue), P. S. Sutrapur, in the city of Dacca. He left East Pakistan in March 1950 and since then has not returned to East Pakistan. His further case is that the defendants in collusion with others, superstitiously, collusively and fraudulently represented one Kalipada Banik as the plaintiff and by deceitful means the said Kalipada Banik executed a deed of agreement for sale of the aforesaid premises on the 8th July 1959 in favour of the defendant No.

2. There after on the 9th August 1959 the said Kalipada Banik executed a deed of perpetual lease in favour of the defendant No. I in respect of the same on alleged receipt of a premium of Rs. 30,

000. On the 15th August 1959, Kalipada Banik then executed a deed of sale of the residuary interest in the suit premises in favour of defendant No. 1 for an alleged consideration of Rs.

99. Lastly, Kalipada Banik executed a deed of sale on the 10th August 1959, in favour of the defendant No. 1 in respect of the arrear rents due from the tenants of the suit premises. The plaintiff has asserted that all these documents which are described in Schedule `A' to the plaint are forgeries and therefore void ab initio. On these assertions the plaintiff has made the following prayers:‑ (a) a declaration that the documents as described in the Schedule `A' below are void ab initio and that the defendants have acquired no interest in the suit premises by virtue of the aforesaid documents; (b) for a further declaration that the documents mentioned in the Schedule `A' below have been brought into existence by forgeries and false personations and that no consideration did pass by the said documents; and (c) costs of the suit. The learned Subordinate Judge after hearing the parties has taken the view that the stilt as framed is a suit for declaration and for consequential relief and in that view has directed the plaintiff‑petitioner to pay ad valorem court‑fee under section 7(iv)(c) of the Court‑Fees Act. It is against this order that the petitioner has moved this Court and obtained the present rule. This revisional application came up for hearing before a Division Bench of this Court. It thought that the court‑fee paid by the petitioner was sufficient and the learned Subordinate Judge was wrong in directing him to pay additional court‑fee. As, however, it was noticed that another Division Bench in Civil Revision No. 307 of 1949 took a contrary view in a similar case, this case was referred to the Full Bench and the following questions were formulated for answer:‑ "(1) In a suit for a declaration that certain document was void ab initio as it was not executed by the plaintiff but executed by somebody else by falsely personifying him to be the executant, as in the present case, and as such the document has not affected the right, title and interest of the plaintiff whether he is bound to pay court‑fee under section 7(iv)(c) of the Court‑Fees Act as a suit for declaratory decrees with consequential relief or under Article 17 Schedule II of the Court‑Fees Act as a suit for bare declaration. (2) Whether it is necessary for the plaintiff in such a suit to ask for consequential relief as contemplated under section 39 of the Specific Relief Act and if he has not specifically asked for such a relief, whether he should be held, by necessary implication, that there is a prayer for such a relief, because it comes under section 39 of the Specific Relief Act? (3) If a suit is framed as one for declaration that certain document is void, as in the present cast, should it be treated as one coming under section 42 of the Specific Relief Act or as one coming under section 39 of the Act." At the hearing of this case we felt that as it involved a question with regard to the payment of additional court‑fee, the learned Senior Government Pleader should be heard, in accordance with rule 18, Chapter 11, Part 1 of the High Court Rules. We have had the advantage of hearing him also in addition to Mr. Abdul Matin Khan Choudhry who appears for the opposite- party No.

2. Mr. Suresh Chandra Bose who appears for the petitioner has argued that as the suit has been framed in a purely declaratory form, the court‑fee paid is sufficient. According to the learned Advocate, the fact that the declaration asked for relates to certain documents makes no difference in regard to the payment of court‑fee particularly when the petitioner is not a party to those documents. In support of this contention, reliance has been placed upon the case of Vsarannessa Bibi v. Jahurannessa Bibi and another (1) and some decisions of the Madras High Court to which I shall presently refer. I have felt in stead of examining the decisions relied on by the learned Advocates for the parties individually, they should be considered in groups as most of them fall under distinct categories, I may indicate at the outset that so far as the main point that calls for determina tion is concerned, there is a serious conflict of opinion not only in regard to whether fixed court‑fee is sufficient in a case like the present and if not, then also in regard to the particular provision of the Court‑Fees Act under which ad valorem court‑fee is payable. Without adverting to the arguments advanced before us, I have felt that I would rather straightway proceed to consider the decisions relied on by the learned Advocates as the arguments have more or less followed the Vines taken in these cases. The cases of Umarannessa Bibi v. Jahurannessa Bibi and another, Kattiya Pillai and another v. Ramaswamia Pillai and others, C. R. Ramaswami Ayyanagar v. C. S. Rangachariar and others, Dasari Nagabhushanam v. Kunameeni Venka Tappayya (A I R 1935 Mad. 203), Ponnammal alias Guruvammal and others v. Kanthammul and others (A I R 1952 Mad. 552), Sultan Khan and others v. Ziauddin and others (A I R 1935 Lah. 611) and Ma Wa Nu and others v. Mathan, are representatives of decisions which have laid down that where declaration only is prayed for in regard to certain documents payment of fixed court‑fee under Article 17(iii) of Schedule II is sufficient. In the first mentioned case Mukherjee, J. of the Calcutta High Court took the view that when a person was induced to execute a document other than what he or she had undertaken to execute, the document was void and such a document need not be cancelled. The learned Judge also came to the conclusion that as in that case, the plaintiff asserted that she was still in possession of the property and she only prayed for a declaration that the deed which was in the hands of the defendants was not her deed, fixed court‑fee paid on the plaint was sufficient. In the case reported in A I R 1929 Mad. 396, a Division Bench of the Madras High Court took the view that where the plaintiff alleged that a will put forward by the defendant was a forgery and further prayed for cancellation, payment of fixed court‑fee was sufficient as cancellation of such a will and cancellation of the order of the Sub‑Registrar registering the deed was the function of the Court and no part of the prayer in the plaint. In the third case A I R 1940 Mad. 113 a Full Bench of the Madras High Court has held that in respect of alienations by the father of a minor to which the minor was not a party and which were challenged by the son in a suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation as the prayer is for a purely incidental but un necessary relief. When there is no such prayer, there is no justification in implying one and then demanding a fee for it. It will be seen, however, that Abdur Rahman, J. in his separate judgment observed that in such a case if the plaintiff wants the Court to go into the question and prays for a relief which must in the circumstances be taken to be tantamount to asking for an adjudication relating to the binding nature of the alienations of family property, there is no reason why the plaintiff should not pay the court‑fee with regard to the same. According to the learned Judge payment of court‑fee as for simple declaration under Article 17‑A (1) in such a case is sufficient. In the case reported in A I R 1935 Mad. 203 it has been laid down that 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 and where a forged instrument has been brought into existence as if he were a party to it, it is not incumbent on him to have it cancelled or set aside by suit. He can file a suit for a mere declaration that the document is a forged one and such a suit is governed by Article 17‑A(i) and not by section 7(iv)A. In the case reported in A I R 1952 Mad. 552, a learned Single Judge of the Madras High Court has taken the view that a person who is not a party to a decree or a document is not bound to sue for its cancellation. In fact it is impossible for a person who is not a party to a decree or a document to ask for its cancellation. In the case reported in A I R 1941 Rang. 269, a learned Single Judge of the Rangoon high Court has held that where in a suit what the plaintiff asks for is a declaration that under a deed of gift to which he is not a party no right, title or interest has passed to the defendant, or the declaration he asks for is that his right, title or interest in the lands in suit is not affected by the said deed of gift, the suit is a suit for a declaration without consequential relief. In the last case A I R 1935 Lah. 611 it has been held that where a person who is not a party to a deed or a decree sues to have it declared void, Article 17 applies and payment of fixed court‑fee is sufficient. It will be seen that some of the above decisions have proceeded on the footing that if in a suit declaration only is asked for that a document is void on the ground that the executant executed a deed other than what be had undertaken to execute or that the deed is a forgery, then cancellation of such a document Is not necessary and payment of fixed court‑fee under Article 17(iii) of Schedule 11 is sufficient. Cancellation of a document can be ordered under section 39 of the Specific Relief Act. This section provides that any person against whom a written instrument is void or voidable has reasonable apprehension that such instrument, if left outstanding, mal cause him serious injury, may sue to have it adjudged void or voidable. The section further provides that the Court may in its discretion in such a case adjudge the document as such and order it to be delivered up and cancelled. The section goes on to say that if the instrument has been registered under the Registration Act, 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 book the fact of its cancellation. Illustration (b) to this section relates to a forged document. The provision for declaratory decrees has been made in section 42 of the Specific Relief Act. This section lays down that 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 be is so entitled, and the plaintiff need not in such a suit ask for any further relief. The proviso to this section is 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. Illustrations (c) and (e) to this section relate to declarations in regard to documents. If the provisions of these two sections taken together with the illustrations mentioned above are considered, it will be seen that they overlap each other and in a particular case it may be difficult to express any definite opinion as to whether it falls exclusively under section 39 or section

42. It may be said to be a suit falling under both the sections. It is, however, clear that section 39 contemplates cases in which not only cancellation can be expressly asked for but also those in which cancellation can be granted by the Court having regard to the case made out in the plaint. It is difficult to see why in regard to both these classes of cases, payment of fixed court‑fee will be sufficient I am unable to agree with the view that because section 39 contemplates that the relief of cancellation is to be granted by the Court, even when the plaintiff has not asked for the same, no court‑fee need be paid for it. The plaintiff by way of cancellation gets a relief which is other than the relief involved in the declaration or adjudication and therefore must pay for the same. I however accept the view that a document to which the plaintiff is not a party need not be cancelled and a mere declaration to the effect that it is void is sufficient. It is only a document, which has vested ex facie a valid claim, needs to be cancelled. A forged document does not come within this category. Even in the case of a forged document, however, if the plaintiff asks for cancellation, it will not be correct to say that he is not to pay for it. If he has asked for both declaration and cancellation, then it will not be permissible to urge that court -fee for cancellation need not be paid, as the relief is not necessary or that it is logically impossible to ask for cancellation. Illustration (b) to section 39 negatives such a contention. In determining whether in a suit cancellation has been asked for, the plaint has to be read as a whole and the Court will not confine itself merely to the form of the plaint but it must look to the substance of the relief claimed. If on consideration of the plaint, the Court comes to the conclusion that the plaintiff has asked for both declaration and cancellation or that cancellation is to be ordered having regard to the case made out in the plaint, then it must be held that payment of fixed court‑fee under Article 17(iii) of Schedule II is not sufficient. If however it is found that a mere declaration is sufficient and no relief by way of cancellation has been asked for by the plaintiff, then the suit is a purely declaratory suit and payment of court‑fee under Article 17(iii) of Schedule II is sufficient. In my view it is not correct to say that since section 39 of the Specific Relief Act falls under Chapter V which only deals with cancellation of instruments and section 42 falls under Chapter VI and provides for declaration in respect of legal character or any right to property, therefore declaration in respect of a document is virtually a prayer for cancellation of the document. I do not find any difference between a prayer to adjudge a document void or voidable and a prayer for declaration that the document is so. If however a declaration is asked for in respect of a document that it is void or voidable, the suit comes under section

39. It is not necessary to cancel a document in every case. It will depend upon the facts of the case. It is true that the relief of cancellation need not be specifically asked for in view of the language of section

39. It may be granted by the Court in the absence of a prayer to that effect. If however such a relief has to be given, the plaintiff must pay for it and payment for mere declaration is not sufficient. The next question that calls for determination is under what provision of the Court‑Fees Act, court‑fee is payable in a suit which is considered to be one for cancellation of a document, be it on the ground that the plaintiff has expressly or impliedly asked for it or that having regard to the case made out in the plaint relief by way of cancellation may be granted by the Court. There is a serious conflict of opinion on this point. In one group of cases of which I L R 54 All. 812, is the leading decision, it has been held that the relief of cancellation is a substantive relief and not consequential within the meaning of section 7(iv)(c) of the Court‑Fees Act and therefore court‑fee is payable in a suit for cancellation under the residuary Article 1 of Schedule I of the Court‑Fees Act. This is the decision which has been followed in Civil Revision No. 307 of 1949 decided by Shahabuddin, C.J. and Amin Ahmed, J. The facts of the case reported in I L R 54 All. 812 are as follows: A suit was instituted by the nephew and the son of one Sundarlal who had executed a mortgage deed in favour of the defendant. In the mortgage suit the plaintiffs were impleaded under the guardianship of their grandmother. The suit was decreed and a preliminary decree was passed which resulted in a final decree later. The plaintiffs instituted the suit and the following reliefs were asked for: (1) The mortgage deed, dated the 20th of December 1918, may be adjudged void and ineffectual as against the plaintiffs and it may be cancelled; (2) The compromise and the preliminary decree, dated the 16th of September 1925, and the absolute decree, dated the 2nd of April 1927, of the Court of the Subordinate Judge of Jhansi in re: Kalu Ram v. Sunder Lal and others, may be cancelled. In this case a Bench consisting of 5 Judges of the Allahabad High Court has taken the view that 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. The case of Sri Krishan Chandra v. Mahabir Prasad and others, is a decision by three of the learned Judges of the Allahabad High Court who were also members of the Bench which decided the case reported in I L .R 54 All.

812. In this case the learned Judges have held that in the suit as the plaintiff merely asked for a declaration that a decree was not in any way binding upon him and was altogether void and ineffectual; the suit was one for obtaining a declaratory decree only and therefore fell under Article 17(iii) of the Second Schedule. It is clear that a distinction has been made between a document and a decree by the learned Judges in these two cases. With due respect it is very difficult for me to follow what is really the distinction. If a mere declaration in respect of a decree to which the plaintiff is not a party as void is sufficient and no cancellation of such a decree is to be ordered and if, therefore court‑fee paid in such a suit under Article 17(iii) of the Second Schedule is considered sufficient, why should it not be so in respect of a document. In the case of Bishan Sarup v. Musa Mal and others, two of the learned Judges of a Full Bench of the Allahabad High Court consisting of three Judges have taken the view that where a plaint is so worded as to disclose a suit falling either under section 39 or section 42, Specific Relief Act, it is not open to a Court to treat the suit as one falling within the perview of section 39 if the plaintiff desires it to be construed as one under section

42. I may mention that these two learned Judges, namely, Niamat Ullah and Rachhpal Singh, JJ. did not fully accept the decision reported in I L R 54 All.

812. There is another group of cases of which I have decided to select only two and I feel that they represent those cases effectively, where it has been held that in a suit for declaration and cancellation of a document court‑fee is to be paid under section 7(iv)(c) of the Court‑Fees Act. In the case of Mst. Rupia v. Bhatu Mahton and others, the plaintiff alleged in the plaint that the defendants fraudulently got the plaintiff to execute certain sale deeds which were without consideration and prayed for a declaration that the sale deeds were got up and fraudulent and that the defendants had acquired no title by virtue of the same. It was held in this case that as the sale deeds in question on their very face had been duly executed and properly registered carrying with them the necessary legal consequences that title passed from the transferor to the transferees the sale deeds were necessarily required to be cancelled in order to get rid of the legal consequences attaching to them. That being the very object of the suit, though the plaintiff did not in terms ask for the cancellation of the deeds in question, that relief was implied in the relief sought. The suit, therefore, being one for declaration with consequential relief was governed by section 7(iv)(c) and not by Article 17(iii) of Schedule II of the Court‑Fees Act. A similar view has been taken in the case of Mst. Wazir Begum v. Haji Ashiq Hussain and others. I agree with the view expressed in the last decision that in a case where a plaintiff seeks a declaration about an order, decree, deed, instrument or trans action and wherein either cancellation is in fact prayed for or it is implied in the declaratory relief, the case is one of declaratory relief with consequential relief, and is, therefore, governed by section 7(iv)(c) of the Court‑Fees Act. On a careful reading of the decision reported in I L R 54 All. 812, I have not been able to agree with the view that the relief of cancellation is not a consequential relief within the meaning of section 7(iv)(c) of the Court‑Fees Act. I have already indicated that the fact that section 39 falls in the Chapter relating to cancellation of instruments and section 42 in the Chapter dealing with declaration does not make any difference with regard to the question whether cancellation is a consequential relief within the meaning of section 7(iv)(c) of the Court‑Fees Act. Any relief which directly flows from a declaration is a consequential relief. In that view it is difficult to see how when a declaration is asked for in regard; to a document in respect of which there is either a prayer expressly or impliedly for cancellation or such a relief has to he given having regard to the case made out in the plaint, cancellation cannot be considered to be a relief which flows of follows directly from the declaration in regard to the document. In the present case of course the learned Subordinate Judge has held that the plaintiff' is to pay court‑fee under section 7(iv)(c) of the Court‑Fees Act. The learned Senior Government Pleader has argued that as the plaintiff claims possession through tenants, it is necessary for him to get rid of the documents in suit and, therefore, he has been rightly directed to pay court‑fee under section 7(iv)(c) of the Court Fees Act. I do not see how this fact, namely, that the plaintiff in the present suit is claiming to be in possession of the suit properties through tenants by itself calls for payment of ad valorem court‑fee. The plaintiff's assertion is nothing but this that he is in possession of the suit properties. If this assertion ultimately at the trial turns out to be baseless then the suit is likely to come under the mischief of the proviso to section 42 of the Specific Relief Act; but that is not a valid consideration at this stage when we are concerned only as to the sufficiency of the court‑fee paid on the plaint as framed. My conclusions, therefore, are that the present suit as framed is a purely declaratory one in which the documents in question need not be cancelled. As however the plaintiff has prayed for declaration in respect of four documents as well as the properties in suit, he is to pay separately for each of these declarations, that is to say, court‑fees amounting to Rs. 100‑Rs. 20 x

5. A. M. SAYEM, J.‑--The suit has been valued for the purpose of jurisdiction at Rs. 30,

000. The plaintiff has paid a fixed court‑fee of Rs. 20 claiming that the suit is for a simple declaratory decree to which the provision of Article 17(iii) of the Second Schedule of the Court‑Fees Act applies. The plaintiff's case is that he is in possession, through tenant, of certain premises in the city of Dacca, in relation to which certain registered documents mentioned in Schedule `A' to the plaint have come into existence, falsely purporting to have been executed by him in favour of the defendants, and that thereby a cloud has been thrown on plaintiff's right, title, interest and possession in the said premises. The said premises have been mentioned in Schedule `B' to the plaint. Upon the above allegations, apart from a prayer for costs, the plaintiff has made the following prayers: (a) a declaration that the documents as described in the Schedule `A' below are void ab initio and that the defendants have acquired no interest in the suit premises by virtue of the aforesaid documents; and (b) a further declaration that the documents mentioned in the Schedule `A' below have been brought into existence by forgeries and false personations and that no consideration did pass by the said documents: The documents mentioned in Schedule `A' are four in number. The first document which is dated 8‑7‑59 is a deed of agreement for sale (bainapatra) in favour of defendant No. 2, alleging that a sum of Rs. 14,100 was paid as earnest money to the plaintiff. The second document which is dated 9‑8‑59 is a deed of perpetual lease in favour of defendant No. 1, alleging that a sum of Rs. 30,000 was paid as premium. The third document which is dated 10‑8‑59 is a deed of sale of the right to realise arrear rents due to the plaintiff from different tenants is in favour of defendant No. 1 and alleges that a consideration of Rs. 10,000 was paid, and the fourth document, which is dated 15‑8‑59, is a deed of sale of the residuary interest in the premises in question, including the right to realise the quit‑rent of Rs. 2 reserved by the second document in favour of defendant No. 1, alleging that a consideration of Rs. 99 was paid. Learned Subordinate Judge took the view that had the relief asked for ended with the first part of prayer (a), namely, for a declaration that the documents in question were void ab initio, the plaintiff would be entitled to pay a fixed court‑fee of Rs. 20 under the third clause of Article 17 of the Second Schedule attached to the Court‑Fees Act. According to the learned Subordinate Judge, the 2nd part of prayer (a), namely, for a declaration that the defendants had acquired no interest in the premises in question by virtue of the aforesaid documents, coupled with prayer (b), took the suit out of the category of simple declaratory suits and placed it in the category in which court‑fee is payable under section 7(iv)(c) of the Court‑Fees Act, i.e., a suit for a declaratory decree where consequential relief is prayed. He, therefore, directed the plaintiff to pay ad valorem court‑fee under that section. The plaintiff thereupon moved this Court and obtained the present Rule, which was placed before a Division Bench. The Division Bench referred the case to the Full Bench upon formulating the following questions:‑ (1) In a suit for a declaration that certain document was void ab initio as it was not executed by the plaintiff but executed by somebody else by falsely personifying him to be the executant, as in the present case, and as such the document has not affected the right, title and interest of the plaintiff whether he is bound to pay court‑fee under section 7(iv)(c) of the Court‑Fees Act as a suit for declaratory decree with conse quential relief or under Article 17, Schedule 11 of the Court -Fees Act as a suit for bare declaration. (2) Whether it is necessary for the plaintiff in such a suit to ask for consequential relief as contemplated under section 39 of the Specific Relief Act and if he has not specifically asked for such a relief, whether he should be held, by necessary implication, that there is a prayer for such a relief, because it comes under section 39 of the Specific Relief Act; and (3) If a suit is framed as one for declaration that certain document is void, as in the present case, should it be treated as one coming under section 42 of the Specific Relief Act or as one coming under section 39 of the Act. Mr. Bose appearing for the plaintiff‑petitioner insisted that the suit was one for a simple declaratory decree without any express or implied prayer for a substantive or a consequential relief, fully covered by the terms of section 42 of the Specific Relief Act, both the parts of prayer (a) being prayers for simple declarations and the prayer (b) being superfluous, the same having simply cited reasons in support of the prayer (a). He, therefore, contended that the court‑fee realisable in the suit was under Article 17(iii) of the Second Schedule of the Court‑Fees Act. He next contended that in case it was held that the suit fell under section 39 of the Specific Relief Act, there could be no reason for reading a prayer for cancellation therein, inasmuch as no such prayer has been made by the plaintiff nor is he required to make such a prayer, since, according to him, in the event of the suit being treated as one under section 39 it will, in terms of the section, be the duty of the Court to direct cancellation. Thirdly, he contended that the plaintiff having alleged that he is not a party to the impugned deeds, the signatures wherein, according to the plaintiff, were forged, there could be no need for cancellation of the same. Learned Senior Government Pleader, who appeared at the hearing at our instance, and the learned Advocate appearing for the defendants claimed that the snit fell under section 39 of the Specific Relief Act. They contended that the court‑fee payable in the suit was ad valorem on the subject‑matter of the suit, namely, the suit premises under Article 1 of the First Schedule of the Court‑Fees Act, since according to them, a relief for adjudging an instrument void could not be said to be of declaratory nature for the purpose of the Court‑Fees Act. They further referred us to the 2nd part of prayer (a), namely, the prayer for a declaration that the defendants had acquired no interest in the suit premises by virtue of the said documents and the last clause in prayer (b) asking for the declaration that no consideration did pass by the said documents. It was strenuously argued that these constituted a prayer for cancellation of the documents which, according to them, was a substantive relief, as distinguished from a consequential relief. Reliance was placed on a Full Bench decision of 5 Judges of Allahabad High Court in the case of Kalu Ram v. Babu Lai, in which Sulaiman, C. J., who delivered the judgment of the Full Bench, held: "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." The facts of that case were as follows. A suit on a mortgage was compromised and a decree for sale was passed followed by a final decree. A son and nephew of the mortgagor, who were apparently members of a joint family with him, were also im pleaded defendants under the guardianship o: their grandmother. The son and the nephew thereafter brought a suit, out of which the Full Bench case arose, for avoiding the mortgage deed and the compromise and also the decrees on the ground that the mortgage deed was fictitious and without consideration and legal necessity, the compromise on the ground of fraud, and the decrees on the ground of negligence and collusion of the guardian. Two main reliefs that were claimed were: (I) the mortgage deed be adjudged void and ineffectual as against the plaintiff and 1t may be cancelled, and (2) the compromise, the preliminary decree and the final decree may be cancelled. After pointing out that section 39 of the Specific Relief Act is in Chapter V which is headed "of the cancellation of Instruments", whereas there is a separate Chapter VI headed "of declaratory decrees", Sulaiman, C. J. observed that it was obvious that the Legislature 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. His Lordship proceeded to say further:‑ "Though the Specific Relief Act was passed some years after the Court‑Fees Act, the distinction existed before the Specific Relief Act was passed, and it cannot be said that for the purpose of Court‑Fees Act a relief for adjudging an instrument void is of a declaratory nature." It was then said that "Where a suit is for the cancellation of an instrument under the provisions of section 39 of the Specific Relief Act the relief is not a declaratory one", and that such a suit falls neither under section 7(iv)(c) nor under Article 17(iii) of Schedule II of the Court‑Fees Act. In that view of the matter the Full Bench held that the court‑fee payable on the first relief was governed by Schedule I, Article

1. As to the second relief, namely, cancellation of the compromise and the decrees, it was said that it was not a declaratory relief only, since the effect of grant of such a relief is "not merely a declaration as to a person's character or status, as contemplated by section 42 of the Specific Relief Act, but the effect would be to render the decree void and incapable of execution and will free the plaintiff from all further liability under it." Tile Full Bench, therefore, held that the court‑fee payable on the second relief also was under Schedule I, Article 1, and neither under section 7(iv)(c) nor under Article 17(iii) of Schedule II of the Court‑Fees Act, I have quoted above, somewhat in extenso, the relevant observations of the Full Bench in Kalu Ram's case. It will be evident from these observations that the Full Bench assumed that declaratory suits, that is, suits for simple declarations or for declarations accompanied with further or consequential relief could only be brought under section 42 of the Specific Relief Act. This view, however, is not tenable, as pointed out by the Judicial Committee of the Privy Council in the cases of Robert Fisher v. Secretary of State for India ((1898) I L R 22 Mad. 270), and Partab Singh v. Bhabuti Singh ((1913) I L R 35 All. 487). In Robert Fisher's case the grantee of a perpetual lease of a village sued for a declaration that an order of the Provincial Government directing cancellation of an order of the Collector, though approved by the Board of Revenue, was ultra vires and illegal, and of no binding effect on the plaintiff. No further specific relief was asked for in the plaint. On behalf of the defendants it was urged that the plaintiff sinned against section 42 of the Specific Relief Act, which forbids the Court to entertain a suit for a declaratory decree which may be followed by consequential relief, unless the relief be asked for specifically. The High Court gave effect to this contention. As the case came up before the Privy Council, the Judicial Committee said of this section:‑ "There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of section 50 of the Chancery Procedure Act of 1852, 15 & 16 Vict., Cap. 86, as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852. It is, in substance, a suit to have the true construction of a statute declared and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind." In Partab Singh's case the plaintiffs sued for a declaration that a compromise of certain pre‑emption suits and decrees passed thereunder made on their behalf when they were minors not binding on them, having been obtained by fraud and in pro ceedings in which they were practically unrepresented. The Subordinate Judge decreed the suit. The case having ultimately gone to the Privy Council it was contended before the Judicial Committee that the suit, having been filed for the purpose of obtaining a declaratory decree only, was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory decree, the Court had a discretion as to the granting or refusing such a declaration, and the Court of the Judicial Commissioner, on appeal, was right in refusing to exercise that discretion in favour of the plaintiff. Their Lordships of the Privy Council observed that section 42 of the Specific Relief Act did not apply to the case and that it was not a question of exercising a discretion under that section. Their Lordships gave the plaintiffs a decree setting aside the decree of the Court of the Judicial Commissioner and declaring that the agreement of compromise and the decree complained of were not binding upon the plaintiffs. The history of declaratory decrees can also be found in the case of Deo Kali Koer v. Kedar Nath ((1912) I L R 39 Cal. 704), decided by a Division Bench of the Calcutta High Court, presided over by Jenkins, C. J. It is worthy of note that Sulaiman, C. J. himself had occasion to refer to the above two decisions of the Privy Council in the later Full Bench case of Sri Krishna Chandra v. Mahabir Prasad, in which Sulaiman, C. J. noted the effect of the aforesaid two Privy Council cases and said that there could be no doubt that section 42 of the Specific Relief Act was not exhaustive. I will have occasion to refer again to this case at a later stage. Suffice it here to say that Kalu Ram's case having been cited before a Full Bench of the Lahore High Court, in the case of Ghulam Quadir v. Bulaqi Mall (P L D 1949 Lah. 461), Abdul Rashid, C. J., who delivered the judgment of the Full Bench, expressed the opinion that the Allahabad Full Bench had given too restricted a meaning to the words "consequential relief" as used in section 7(iv)(c) of the Court‑Fees Act. In the case of Wazir Begum v. Ashiq Hussain, the plaintiff, Wazir Begum, prayed that a deed of relinquishment executed by her and others in favour of Ashiq Hussain be declared to be fictitious, ineffective and void, and that it did not affect the rights of the plaintiff in the estate left by her deceased father. The plaintiff also prayed that the deed in question be cancelled. Kaikaus, J. who could not agree with the decision in Kalu Ram's case, held, in agreement with a large number of decisions of various High Courts, collected at page 135 of the Report, some of which were also cited before us, that a suit for adjudging a document void, with the further prayer for its cancellation, is a suit for a declaratory decree coupled with a consequential relief, and that the court‑fee payable in such a suit was under section 7(iv)(c) of the Court‑Fees Act. His Lordship also pointed out that in determining the question of court‑fees account cannot be taken of the provisions of the Specific Relief Act, since the said Act came into existence some years after the Court‑Fees Act was passed. In view of they foregoing discussion, I am clearly of the opinion that the relief of cancellation of a written instrument in a suit for adjudging or declaring the instrument void or voidable is not a substantive relief, as distinguished from a consequential relief, but is a consequential relief within the meaning of section 7(iv)(c) of the Court‑Fees Act. Now the Senior Government Pleader's contention that the present suit for declaring certain documents void ab initio, although the plaintiff has not prayed for cancelling them, is not a suit of a declaratory nature is solely based on the observation in Kalu Ram's case, appearing at page 821 of the Report to the effect that for the purpose of the Court‑Fees Act a relief for adjudging an instrument void cannot be said to be of a declaratory nature. This is the observation that was followed in the Dacca cases also. In the first place, this observation is an of obiter, since in that case there was actually a prayer for cancellation of a mortgage deed and a compromise, and also of the preliminary and final decrees passed on the said mortgage deed and the compromise, and no question was referred to the Full Bench in relation to a case where the relief of cancellation was not prayed for. In the second place, it may be mentioned that this view seems to have been modified in the later Full Bench case of Sri Krishna Chandra v. Mahabir Prasad. In Sri Krishna's case the plaintiff prayed for a declaration that a certain decree was not binding upon him and was altogether void and ineffectual. The plaintiff, who was a minor, alleged that he was ineffectively represented in the previous suit, and that it was due to the negligence and carelessness of the guardian‑ad‑litem that the said decree was passed against the plaintiff. It was urged on behalf of the defendants on the basis of Kalu Ram's case, that the suit was not of a declaratory nature and that it was, in effect, a suit for cancellation of the decree. Sulaiman, C. J., who in this case also delivered the judgment of the Full Bench, negatived the contention and held that "inasmuch as the plaintiff in this case merely asked for a declaration that the previous decree was not, in any way, binding upon him acid was altogether void and effectual, his suit was one for obtaining a declaratory decree only and falls under Article 17(iii) of the Second Schedule". It was observed in justification of this conclusion that decrees stood on a different footing from other documents. I do not, however, find any distinction, in this respect, between a decree and a document of any other type. I am of the opinion that both are written instruments in the sense the expression has been used in section 39 of the Specific Relief Act. I am fortified in my opinion by the view taken by Kaikaus, J., to the same effect in Wazir Begum's case. If this view be correct, there is no reason to think that in the case before us the plaintiff's suit is not one for obtaining a declaratory decree only. Both Niamatullah, J. and Rachhpal Singh, J., who delivered separate judgment in the Full Bench case of Bishan Sarup v. Musa Mal, could not agree with the said observation of Sulaiman, C. J., in Kalu Ram's case, relied upon by the learned Senior Government Pleader, though the third Judge on the Full Bench, which consisted of three Judges, gave a dissenting judgment. Learned Senior Government Pleader attempted also to argue, as has already been noticed, that in view of the 2nd part of prayer (a), that is, for the declaration that the defendants have acquired no interest in the suit premises by virtue of the said documents and the statements in prayer (b) that no consideration did pass by the said documents, the suit was virtually a suit for cancellation of the said documents. I find no substance in this contention as well. In this connection, Mr. Bose contended that prayer (b) in the plaint has not included a separate relief but it has simply indicated grounds in support of prayer (a). The referring Bench seems to have accepted this contention and I see no reason to take a different view. The first part of prayer (a) has simply asked for a declaration that the said documents are void ab initio. Prayer (b) asks for a further declaration that the' said documents have been brought into existence by forgeries and false personations, and that no con sideration did pass by the said documents. If the documents have been brought into existence by forgeries and false persona tions, there could be no passing of consideration to the plaintiff. Again, if the documents were brought into existence by forgeries and false personations, they are no doubt void ab initio. The statements appearing in prayer (b) cannot, therefore, but be construed as reasons in support of the prayer for declaring the said documents void. Prayer (b) is, therefore, superfluous. It is prayer (a) alone, therefore, with which the Court is concerned. This prayer appears to have two parts: (1) for a. declaration that the four documents mentioned in Schedule `A' to the plaint are void ab initio and (2) for a declaration that the defendants have acquired no interest in the suit premises by virtue of the aforesaid documents. Unequivocally, therefore, the plaintiff has omitted to claim any relief by way of a consequential relief in terms of section 7(iv)(c) of the Court‑Fees Act or a substantive relief, as distinguished from a consequential relief. Obviously, the first part of the prayer (a) asking for a declaration that the documents are void falls under section 39 of the Specific Relief Act and is its second part, which is in a negative form, asks, in effect, for a declaration in terms of section 42 that the alleged transactions evidenced by the said documents in favour of the defendants have not affected the right, title and interest of the plaintiff. Illustration (a) to that section makes it clear that such a prayer can be made in a suit under section 42 of the Specific Relief Act, being in relation to a legal status or a right as to any property. Relying, however, on the case of Bishan Sarup v. Musa Mal, decided by a Full Bench of three Judges, who were naturally bound by the decision in Kalu Ram's case, Mr. Bose contended that both the types of declaratory relief asked for in prayer (a) were such as are contemplated by section 42 of the Specific Relief Act. The contention, however, loses sight of the peculiar mould in which the prayer in that case was cast. There the prayer was:‑ "It may be declared that by virtue of the purchase made under the sale‑deed, dated 24th October 1931, in favour of defendant 1, and under‑the sale‑deed, dated 21st October 1931, in favour of defendant 2, which are null and void and ineffectual as against the plaintiff and the joint family property -defendants 1 and 2 did not acquire any right to any part of the houses mentioned at the foot hereof." It was said in that case that the plaintiff might legitimately contend that the object of the relief prayed for by him was to obtain a recognition of his right to property, and that the void or voidable character of the instrument would come under consideration incidentally for determining the plaintiff's right. Taking into consideration the insistence of the plaintiff that the suit was under section 42 of the Specific Relief Act and that the same could also be treated as of the character insisted upon, the suit was held to be under section 42, Niamatullah, J. observed:‑ "It seems to be an unheard of procedure that the Court should force upon a plaintiff a frame of the suit which he is not willing to adopt." There is, however, no ambiguity in regard to the relief asked for in the first part of prayer (a) in the present case, namely, "a declaration that the documents as described in Schedule `A' below are void ab initio." It is unambiguously in terms of section 39. , But as to the second part of the said prayer, as I have already said, there is no difficulty in giving effect to Mr. Bose's contention. Both the types of relief prayed for thus being for simple declarations, section 7(iv)(c) can have no applica tion, and the suit must be held to be governed by the provisions of Article 17(iii) of the Second Schedule of the Court‑Fees Act. It is now well‑settled that at the stage of determination of the question of court‑fee the Court is not concerned with the merits of the suit or its maintainability. This rule has been elaborately, stated in Bishan Sarup's case by Niamatullah, J. in the following words:‑ "Consideration of the frame of the suit for the purposes of court‑fee and that for the purposes of decision of the suit must be kept severely apart. If the plaintiff says that he deliberately limits his relief to declaration, no impediment should be thrown in his way for that purpose. When the Court comes to consider the merits of the case, it must pin down the plaintiff to his choice; and if he has made an error in that respect, he must take the consequences. But in determining the court‑fee payable the Court should not allow its mind to be influenced by the consequences which might, in its opinion, follow from the plaintiff's action. Nor should the Court be influenced by the consideration that the plaintiff is actuated by motives of economy and is evading payment of court‑fee by not suing for cancellation and suing only for a declaration. It is perfectly legitimate for the plaintiff to avoid the payment of higher court‑fee by so framing his suit as to diminish his liability in that respect." As to the second question referred to us, Mr. Bose's contention was that in a suit under section 39 of the Specific Relief Act, the plaintiff need not specifically pray for cancellation, and that the section casts a duty on the Court to grant the relief by way of cancellation. In support of this contention Mr. Bose referred us to a Division Bench decision of the Madras High Court in the case of Kattiya Pillai v. Ramaswamia Pillai. In that case, the plaintiff alleged that a will put forward by the defendant was a forgery and prayed in his plaint (1) that the will be declared to be forgery; (2) that it be cancelled; and (3) that the order of the Sub‑Registrar registering the will also be cancelled. The Bench took the view that in such a suit it is the Court's function to order the instrument to be cancelled and that it would be the duty of the Court to send a copy of its decree to the Registration Officer, who is to note in his book that the instrument has been so cancelled. The Bench concluded that the prayer for the cancellation of the will and the registration was unnecessary and superfluous. The Bench thereupon held that the suit was on for a declaration without consequential relief. This conclusion, in my opinion, is in excess of the extent warranted by the section. No exception can be taken to the conclusion in so far as it relates to the third prayer in the plaint before the learned Judges. But I cannot pursuade myself to agree with their view that the second relief, which was for cancellation of the will, was unnecessary and superfluous. The learned Judges used two different terms, namely, `function and duty' function in relation to the second relief and duty in relation to the third‑and yet they reached the same conclusion in respect of both the reliefs. Leaving aside the illustrations, section 39 of the Specific Relief Act is in the following terms:‑ "

39. 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, 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." It appears to me on a plain reading of section 39 that it is only the relief specified in the second paragraph of the section that need not be prayed for and is to be granted as a matter of course, in the event of the Court passing an order of cancellation of the written instrument, upon adjudging or declaring it void. This relief, in my opinion, has been set out in a separate paragraph, with a view to keeping it in a category different from that of reliefs specified in the first paragraph in which the words "the Court, in its discretion" occur. They are not peculiar to section

39. I am not aware of any authority maintaining that a discretion conferred on the Court is to be exercised in favour of a party, even though the party chooses not to ask for its exercise. Nor do I find anything in the latter part of the first paragraph of the section, which defines the powers of the Court, that might induce me to take such a view. The discretion mentioned in the section, as I read it, can not relate to adjudg ment alone, but also to the relief of cancellation. It does not appear to me that once an instrument is adjudged void in the discretion of the Court cancellation is to follow, just as the relief set out in the second paragraph is to follow an order of cancellation. Section 39, in my view, primarily provides a relief by way of a declaration. It does not expressly provide, as is done by the proviso to section 42, that an omission to pray for a further relief that might be asked for in the suit would entail its dismissal. If cancellation is not prayed in such a suit, or having been prayed for has been refused, in a subsequent suit for cancellation the plaintiff may be confronted with the bar under Order II, rule 2 of the Code of Civil Procedure, or by a bar of limitation, or by some other bars. But that cannot be a reason for the Court to assume that every suit brought tinder section 39 of the Specific Relief Act is to contain a prayer for cancellation, and so to insist on payment of an encashed court fee. It is only after the trial, as has already been noticed, that the Court is called upon to consider the question as to if, in exercise of its discretionary power under the section, a bare declaration should be granted. If the plaintiff is a party to the instrument the court refuses, as a rule, to grant such a declaratory relief, on, the ground that the instrument, in such a case, need be avoided by cancellation. The plaintiff in such a case is required to pray for cancellation, by way of a consequential relief, where, however, the plaintiff is not a party to the instrument no such difficulty arises. Numerous decisions were cited by Mr. Bose in support of the proposition that where the plaintiff is not a party, he is entitled to a simple declaratory relief and need not pray for cancellation or any other consequential relief. The position is not different in respect of suits under section 42 of the Specific Relief Act, I shall content myself by referring to only a few of them. In the Full Bench case of Ramaswami v. Rangachariar, Leach, C. J., who delivered the judgment of the Full Bench (three other Judges having concurred), said:‑ "If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside for it cannot be used against them. They may treat it as non‑existent. In the case of Harwant Singh v. Jagan Nath A I R 1943 Lah. 348, a Division Bench of the Lahore High Court held that in a suit by a stranger for a declaration that an auction sale in execution of a decree passed in a suit in which he was not actually or constructively represented it was not for the plaintiff to ask for cancellation. I propose to refer to two more decisions that are still more relevant." Those are Ponnammal v. Kanthammal and Rambharosa v. Bina Devi (A I R 1956 Pat. 203) in which the plaintiff alleged forgery. In each of the cases it was held that the plaintiff hearing claimed that he was not a party to the instrument he was‑ not required to ask for its cancellation. I am in respectful agreement with this view. For the aforesaid reasons, I would answer the questions referred to us as follows:‑ Answer to question No. 1.‑A suit for a declaration that a certain document was void ab initio on the ground that it was not executed by the plaintiff but by somebody else and that the document has not affected the right, title and interest of the plaintiff is a suit to obtain a simple declaratory relief and, as such, the court‑fee payable in the suit is under Article 17(iii) of the Second Schedule, and not under section 7(iv)(c) of the Court- Fees Act. Answer to question No. 2.‑It is not necessary for the plaintiff in such a suit to ask for consequential relief as contemplated under section 39 of the Specific Relief Act, and that if the plaintiff has not asked for such a consequential relief he cannot be held, by necessary implication, to have made a prayer for such a relief. Answer to question No. 3.‑If a suit is framed as one for a declaration that a certain document is void, it is to 'be treated as one under section 39 of the Specific Relief Act, and not under section

42. But since in the present suit in addition to the said relief, the plaintiff has asked for another declaratory relief, namely a declaration that the defendants have acquired no interest in the premises mentioned in Schedule `B' of the plaint by virtue of the aforesaid documents, the suit falls also under section 42 of the Specific Relief Act, because of the last mentioned relief. The Court.‑Our answers to the questions framed by the Division Bench are as follows:‑ (1) First part‑No. Second part‑Yes. (2) No. (3) It falls under both the sections. The first part of prayer `A' falls under section 39 and second part of the said prayer under section 42 of the Specific Relief Act. The Rule is made absolute and the order of the learned Subordinate Judge directing the plaintiff-petitioner to pay ad valorem court‑fee is set aside. The petitioner, however, is directed to pay additional court‑fee of Rs. 80 within one month from the date of arrival of the records in that Court, an intimation of which must be given to the plaintiff's lawyer within three days from the receipt of the records. In default, the plaint will stand rejected. The parties are to bear their own costs. K. B. A. Rule made absolute.