- (1.) This matter arises out of a report of the Stamp Reporter. The plaintiff sued for a declaration that a sale-deed which had been executed by her on 17th October 1926, in favour of defendants 1 and 2 was void and ineffectual as against her. The plaint was stamped with a court-fee of Rs. 10 only. The defendants appealed, but their appeal was dismissed, and they have filed a second appeal in this Court, and on both appeals, they have paid a court-fee of Rs. 10 only. The Stamp Reporter is of opinion that Rs. 115 is now due from the plaintiff-respondent and Rs. 230 from the defendants-appellants.
(2.) The learned Government Advocate supports the view taken by the Stamp Reporter while counsel for the plaintiff pleads that his suit was under Section 42 Specific Relief Act, and that since he was asking for no consequential relief and was prepared to accept the consequences of not having claimed any such relief the plaint was property stamped. In Radha Krishna v. Ram Narain , it was held by a Bench of this Court that when a plaint - as amended - was to the effect that it be declared that a compromise and decree were ineffectual as against the plaintiff, the suit as framed was to obtain a declaratory decree where no consequential relief was prayed, and therefore it was sufficiently stamped with a court-fee of Rs. 10 and the learned Judges expressed the opinion that the question of court-fee must be decided on the plaint itself. In the course of its judgment the Court reviewed the decisions of other High Courts in which there was a conflict of opinion. The case of Mahammad Ismail v. Liyaqat Husain , was also a case relating to a decree and my learned brother there observed: The Court has no right to say that the plaintiff should have claimed consequential relief and that not having done so, ha should be deemed to have claimed the consequential relief and is therefore liable to pay the court-fees. If, having regard to the nature of his claim, the plaintiff ought to have claimed consequential relief and has not done so, his suit might fail under the proviso to Section 42, specific Relief Act. The question of court-fee must be determined with refer-once to the plaint as it is and not as it ought to-have been.
(3.) This case was referred to by a Bench of this Court in Brij Gopal v. Suraj Karan . In that case the plaint as amended was for a declaration that an agreement and a will executed by certain deceased members of the family were null and, void and did not bind the plaintiff and that certain property belonged jointly to the parties; and the learned Judges held that: For the purpose of determination of the court-fee, the actual relief asked for should be looked into and it is entirely beside the consideration of the Court whether the suit is likely or not to fail, because the plaint did not ask for a consequential relief.;