R.S.NARULA, C.J. - (1.) THIS is a petition for revision of the order of the Court of the Subordinate Judge Second Class, Mansa, dated March 25, 1971, whereby he decided the preliminary issue relating to proper valuation of the plaint for purposes of court-fee and jurisdiction of the suit filed by the plaintiff-petitioner for a declaration to the effect that the gift-deed made by him was null and void as having been procured by fraud and for cancellation of the same. The plaintiff valued the suit for purposes of court-fee as well as for jurisdiction (vide paragraph 14 of the plaint) at Rs. 350-10 P. calculated on the basis of 30 times the land revenue of Rs. 11. 67 P. Relyine on the judgment of P. C. Pandit, J. (as he then was) in Jagat Singh v. Avtar Singh, 1970 Cur LJ 80, the trial Court held that ad valorem court-fee was payable on the plaint under Article 1 of Schedule I to the Court-fees Act 1870, on the value of the property involved that is on Rs. 37,000.00which was the value of the property mentioned in the impugned gift-deed. Having given a finding to that effect, the learned Subordinate Judge did not fix any time for making up the deficiency in court-fee as on the basis of the valuation determined by him, the suit was beyond his pecuniary jurisdiction. He therefore, directed that the same should be transferred to a Court having jurisdiction to try the same.
(2.) WHEN this petition came up for hearing before P. C. Pandit. J. on March 21, 1972, he directed the same to be referred to a Full Bench in view of the divergence of judicial opinion noticed by the learned Judge on the point whether Article 1 of Schedule I or Section 7 (iv) (c) applies to a suit of this type. Reference was made in this connection to the Full Bench judgment of the Patna High Court in Mt. Rupia v. Bhatu Mahton. AIR 1944 Pat 17, and a Division Bench judgment of the Rajasthan High Court in Sukh Lal v. Devi Lal. AIR 1954 Raj 170. On a subsequent date when the case was put up before the learned Judge again on December 11, 1973, it was contended before him that the controversy had in fact been settled by the Supreme Court in Shamsher Singh v. Rajinder Parshad, AIR 1973 SC 2384. The learned Judge, therefore, recalled his previous order and directed the office to set down the case for rehearing as the counsel for the parties wanted to argue the matter in the light of the above mentioned Supreme Court judgment. This is how the case has now been placed before me. Mr. Harbans Lal, learned counsel for the plaintiff-petitioner, has contended that the suit filed by his client is in fact for a pure declaration and the prayer made for cancellation of the gift-deed is at best a mere surplusage, which according to the law laid down in Sheel Kumar v. Aditya Narain, (1964) 66 Pun LR 916, be ignored for purposes of determining the value of the suit for purposes of court-fee. In the Division Bench judgment of this Court in Sheel Kumar's case it was held that the suit for mere declaration that the partition between the son, the father and step-mother was merely a sham transaction and was entered into for ulterior purposes, and, therefore, in fact there was no partition which affected the plaintiff's status as a member of the joint Hindu family was competent, and that a prayer for the cancellation of the deed of partition was purely a surplusage and could be ignored for purposes of court-fee and jurisdiction, as on recording the finding that there was no partition, eventually nothing would remain to be cancelled. That is not the situation here. The case of the plaintiff in the present case is not that the gift-deed was in fact never executed or that it was a sham transaction. On the contrary his case is that the document was executed by him but the execution thereof had been brought about by fraud etc. If the case of the plaintiff is proved, it would not be held that no gift-deed was in fact ever executed, and none was in existence or that the same was a sham transaction, but it would in that eventuality be held that the gift-deed was not binding on the plaintiff as it was void on account of fraud, etc. Jagat Singh's case 1970 Cur LJ 80 has been correctly distinguished by counsel on the ground that whereas possession had been claimed in that suit, the plaintiff petitioner is admittedly in possession of the property in dispute, and therefore, there is no question of paying court-fee on the value of the property by treating this as a suit for possession.
(3.) MR . Harbans Lal next referred to the Division Bench judgment of this Court in Inder Singh v. Mst. Nihal Kaur, 1968 Cur LJ (Punj and Har) 95 - (AIR 1968 Punj 495 ). It was held in that case that where a plaintiff claims a declaration for adjudging the disputed document to be void, it is not necessary for him to claim for the document to be delivered up and cancelled, and that it is in the discretion of the Court to do so if it finds necessary to adopt that course. No prayer had at all been made in that case for the cancellation of the document. In the instant case, however, specific prayer has been made for that relief. The observations of the Division Bench in Inder Singh's case (supra) have, therefore, no application to the facts of the present case.;