Gangeshwar Prasad, J. - (1.) The matters which have been referred to this Full Bench relate to court -fee.
(2.) Sagun Chandra and Smt. Rajeshwari Devi Plaintiffs -Respondents in F.A. No. 301 of 1959, filed suit No. 3 of 1957 in the court of the civil Judge Farm -khabad, for a declaration that a sale deed dated 16 -10 -1952 was unauthorised, void, illegal and ineffective against the Plaintiffs and it did not bind them or affect their one -third share in the property purporting to have been sold under it. Smt. Ram Piari, Plaintiff -Respondent in F.A. No. 302 of 1959, filed in the same court suit No. 48 of 1956 for a similar declaration in her own favour in respect of the same sale deed. A court fee of Rs. 18 -12 -0, as a fixed court -fee for a suit to obtain a declaratory decree, was paid on the plaint in both the suits. The Inspector of Stamps raised an objection that additional court -fee was payable on the plaint in the two suits as the reliefs claimed therein were covered by Sec. 7(iv -A) (UP) of the Court Fees Act. Kunj Behari Lal, who is the vendee under the sale deed and who was the main contesting Defendant in the suits, also took an objection that the court -fee paid on the plaints was insufficient. The learned Civil Judge framed an issue on the question of court -fee and gave a finding thereon on 6 -9 -1957. He held that Sec. 7(iv -A) (UP) of the Court Fees Act has no application as a sale deed is not an instrument securing property and that the suits fall Under Article 17(iii) of Schedule II of the Court Fees Act. His finding, accordingly, was that the court -fee paid on the plaint in the two suits was sufficient. On the same date the learned Judge passed an order that, for the reasons given in the finding recorded by him, the report of the Inspector of Stamps was not correct and directed that information of the order be given to him. No application for revision of this order was filed Under Sec. 6 -B of the Court Fees Act. Both the suits were decreed. Kunj Behari Lal thereupon filed these appeals, paying the same court -fee on the memorandum of appeal as had been paid on the plaint. After examining the record, the Stamp Reporter of this Court reported that the suits giving rise to these appeals really fall within the purview of Clause (2) of Sec. 7(iv -A) (UP) of the Court Fees Act and there was, accordingly, a deficiency of Rs. 161 -12 -0 in the court -fee on the plaint and a similar deficiency on the memorandum of appeal in each of the two cases. There was an objection to the report and the matters eventually came up before a learned Judge of this Court. The learned Judge found that there was a conflict of authorities on the questions involved and ordered that the papers be laid before Hon'ble the Chief Justice for constituting a larger Bench for deciding them. The matter went before a Division Bench, but the Bench thought that the questions should be decided by a Full Bench. That is how they have been referred to this Bench.
(3.) The questions that arise for consideration may be formulated thus: (1) Whether the suits giving rise to these appeals fall Under Sec. 7(iv -A) (UP) or Under Article 17(iii) of Schedule II of the Court Fees Act? (2) Whether the decision or order of the Civil Judge dated 6 -9 -1957 relating to the court -fee payable in the suits has become final? (3) Whether an order directing the Plaintiffs -Respondents to make good the deficiency in court -fee on the plaint in the two suits can be made by this Court in the appeals arising out of them and what would be the result if the deficiency is not made good? Question 1. - -Section 7(iv -A) applies to suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value. A sale deed cannot appropriately be described as an instrument securing money. Money is certainly paid or promised in exchange for transfer of ownership effected by a sale deed, but securing money is not the object of a sale deed and it does not constitute its essence. What has to be seen, therefore, is whether a sale deed is an instrument securing 'other property having such value.' The Civil Judge, relying on Chief Inspector of Stamps v/s. Jashpal Singh : AIR 1956 All 168, held that a sale deed is not an instrument securing property. In that case a learned single Judge of this Court has observed: The expression 'an instrument securing money' obviously means a document creating a charge or hypothecation bond or a mortgage deed or any other document intended to assure payment of money. The expression 'an instrument securing other property' should have, unless the context does not permit it, a similar meaning deed of sale hardly secures property. It conveys the property and transfers the title of the property to the transferee.;