Raj Singh vs Deepak Kumari

The petitioner filed a suit for declaration that the agreement of mortgage. which was being relied upon by the defendant, was not executed by him and it should be declared that the same was illegal. null and void'', With further relief to restrain the defendant, from interfering with his peaceful possession of the land covered by the alleged agreement of mortgage. On the plaint, the court-fee of Rs. 20/- as against Rs. 19.50 required for declaration was affixed. The defendant contravened the pleas of the plaintiff. The defendant did not raise any objection that the court-fee was not sufficiently paid on the plaint. Yet the trial Court of its own, made out a point that the court-fee affixed on the plaint was not correct and it required ad valorem court-fee under Art. 1. Sch. 1 of the Court-fees Act on the amount of mortgage shown in the agreement and directed the plaintiff to make good the court-fee. In doing so. the trial Court relied upon a Full Bench judgment of this Court in Niranjan Kaur Vs. Nirbigan Kaur, This is plaintiffs revision against the aforesaid order.

After hearing the learned counsel for the parties 1 am of the view that Niranjan Kaur Vs. Nirbigan Kaur, is clearly distinguishable on facts. Before the Full Bench the plaintiff wanted the cancellation of a registered sale deed and unless the sale deed was cancelled the title of the land covered by the sale deed could not revert to the plaintiff. Howsoever cleverly the plaint may be drafted. the Court is to see whether a registered document affecting title is sought to be avoided. If that is so, the plaintiff has to pay court-fee on the value of the property covered by the document of title.

In the present case, there is no document of title. Agreements to sell or mortgage property of the value of more than Rs. 100/- do not create title in the property and they only remain agreements till they are enforced. The moment the registered document is executed, title in the property, either by sale or by mortgage, is created. Therefore, I am of the considered view that a suit for getting a declaration that an agreement of sale, mortgage etc. was never entered into between the parties or was otherwise null and void, would be maintainable and such a matter would not come within the ambit of Art. l, Sch. 1 of the Court-fees Act.

The learned counsel for the defendant was not able to show any judgment that to avoid an agreement, ad valorem court-fee under Art. 1, Sch. 1 of the Court-fees Act would be payable. Unless the defendant is able to succeed in this behalf, it cannot be said that the plaint was not properly stamped.

For the reasons Recorded above this revision is allowed, the order of the Court below dated 22-9-1986 is hereby set aside and the trial Court is directed to proceed with the suit on the basis that proper court-fee has been paid on the plaint and decide the same in accordance with law. The parties, though their counsel, are directed to appear before the trial Court on 25-3-1987.

Revision allowed.