JUDGMENT Collister, J.
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 1931 All. 369, 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 1932 All. 316, 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 1932 All. 560. 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.
4. The Court approved the decision in Radha Krishna v. Ram Narain 1931 All. 369. It will be observed that in that case the documents had not been executed by the plaintiff him self, but by certain unspecified deceased members of the family. The case of Kalu Ram v. Babu Lal 1932 All. 485, was decided by a Full Bench of five Judges and this is the case which the Stamp Reporter has relied upon as authority for the view which he takes. In that case it was held that:
Where a suit is for the cancellation of an instrument under Section 89, Specific Relief Act, the relief is not a declaratory one; it falls neither under Section 7(iv)(c) nor under Schedule 2, Article 17(iii), but under the residuary article, Schedule 1, Article 1.
5. That case differs from the present one in that there was a prayer not only that a certain mortgage be adjudged void and ineffectual as against the plaintiffs, but also that it be cancelled; but at p. 689 (of 1932 A.L.J.), the Court observed:
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.
6. In Lakshmi Narain Rai v. Dip Narain Rai 1933 All. 350, the plaint as amended was for a declaration that the plaintiff was the owner in possession of the property in suit and that a certain decree be declared null and void. The Court below had held that the plaintiff was in fact asking for a cancellation of the decree and that this being a consequential relief an ad valorem court-fee ought to be paid in accordance with the view expressed in Kalu Ram v. Babu Lal 1932 All. 485. The case was heard by a Bench of which my learned brother was a member and they held that a court-fee of Rs. 10 only wais payable. They followed the cases of Radha Krishna v. Ram Narain 1931 All. 369 and Brji Gopal v. Suraj Karan 1932 All. 560 and they distinguished the Full Bench case of Kalu Ram v. Babu Lal 1932 All. 485, on the ground that in the latter case there was a distinct prayer for cancellation of the mortgage deed in suit. A Full Bench of this Court in Sri Krishna Chandra v. Mahabir Prasad 1933 All. 488, held that:
Where the plaintiff merely asked for a declaration that the previous decree was not in any way binding upon him and was altogether void and ineffectual, his suit was one for obtaining a declaratory decree only and fell under Article 17(iii) Schedule 2, Court-fees Act, and the court-fee of Rs. 10 paid by him was sufficient.
7. Thus it will be seen that that case also was concerned with a decree and not with an instrument. At p. 677 (of 1933 A.L.J.) the Court observed:
Obviously the Full Bench, i.e. in the case of Kalu Ram v. Babu Lal 1932 All. 485 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. What was held was that if the plaintiff does not ask for a mere declaratory decree but also asks for a relief which he calls 'consequential' relief, the mere fact that he calls it so would not prevent the Court from demanding full court-fee, if in reality the additional relief claimed was a substantive relief and not a mere consequential relief. We do not think that the observation was intended to go further than this.
8. The learned Judges go on however to say:
On the other hand, there is no doubt that so far as the suits relating to the cancellation of instruments are concerned, the F.B. on p 689 (of 1932 A.L.J.) clearly held 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. It was clearly pointed out that it was not incumbent on a plaintiff to ask in express terms a relief for the instrument to be delivered up and cancelled and that he might merely ask for its being adjudged void or voidable. Nevertheless a suit which falls under Section 39, Specific Relief Act, was held to be not a suit for obtaining a mere declaratory decree but one for obtaining a substantive relief not otherwise provided for.
9. They distinguish the case of a decree on the ground that a suit to avoid a decree does not strictly fall under Section 39, Specific Relief Act. The case of Abdul Samad Khan v. Anjuman Islamia Gorakhpur 1934 All. 56, came before a Bench of which my learned brother was a member. The suit was for a declaration that a deed of gift executed by a third person in favour of the defendant was illegal and ineffectual as against the plaintiff and that the defendant had no right to interfere with the possession of the plaintiff. The Court, after referring to the cases of Lakshmi Narain Rai v. Dip Narain Rai 1933 All. 350 and Sri Krishna Chandra v. Mahabir Prasad 1933 All. 488, observed:
In the case before us, the plaintiff claimed no more than a declaration. If he might and ought to have claimed any further or consequential relief and has omitted to do so, he may have offended against the provisions of Section 42, Specific Relief Act; but for all purposes of the Court-fees Act, we have to consider merely the relief actually claimed by the plaintiff and not the relief which he ought to have claimed.
10. In Baburao v. Balajirao 1929 Nag. 71, it was held by the Court of the Judicial Commissioner of Nagpur that a suit which merely asks for a declaration of plaintiff's title to certain property and that a sale-deed executed by him does not affect his title, is really one for declaration of a title and cancellation of the sale-deed and the court-fee is on the value of relief under Section 7(4), (c) and (d), Court-fees Act. In Malikka Meladathil v. Knnji Achammal (1910) 5 I.C. 927, there were 25 plaintiffs in the suit, of whom Nos. 2-25 were minors. Plaintiff 1 sued for himself and as the next friend of plaintiffs 2-25. The suit was for a declaration that a sale-deed be declared invalid and the said deed had been executed by all the members of the tarwad except plaintiff 1, the remaining plaintiffs being represented at the execution by their mothers. A Bench of the Madras High Court expressed the view that the prayer, so far as plaintiffs 2-25 were concerned, must he held to be a prayer for the cancellation of the deed and therefore an ad valorem court-fee was payable. There are however other rulings of various High Courts in which a contrary view is taken. As pointed out by this Court in Radha Krishna v. Ram Narain 1931 All. 369, there is a conflict of opinion on the subject. For instance, in Umaranissa Bibi v. Zamirannissa Bibi 1923 Cal. 862, the Calcutta High Court held that where the plaintiff alleged that she was in possession (as is the case here) and all she required was a declaration that the deed executed by her was not her deed and was inoperative, the proper court-fee payable was Rs. 10. In other cases it has been held that an ad valorem court-fee is payable.
11. It appears to me that the observations by the Full Bench in Radha Krishna v. Ram Narain 1931 All. 369, though more or less obiter, since there was a prayer for cancellation are authority for the proposition that a suit under Section 39, Specific Relief Act, far avoiding an instrument, even if there be no prayer for cancellation carries with it by implication a prayer that the Court may further use the discretion given to it by Section 39, so as to order the said instrument to be delivered up and cancelled. This view was taken by a Bench of this Court of which I was a member in Suraj Ket Prasad v. Chandra 1934 All. 1071. Chap. 5 itself is headed "of the cancellation of instruments," and it seems to me that the words "and the Court may in its discretion so adjudge it and order it to be delivered up and cancelled" contemplate that if a Court sees fit to use its discretion so as to adjudge the document void, it will at the same time order it to be cancelled. In the circumstances, the words "may sue to have it adjudged void or voidable" appear to me to imply a prayer for cancellation. The present suit clearly falls under Section 39, Specific Relief Act, and it is significant that in para. 12 of the plaint the plaintiff states that, defendant 3 was asked many times to get the said document cancelled by the defendants, but he paid no heed to it, and in para. 13 it is stated that, owing to the subsistence of the said document it is apprehended that the plaintiff's proprietary right to the property will be extinct. The contents of these two paragraphs indicate that the plaintiff wanted something more than a declaration; she wanted the instrument to be cancelled and got rid of. In my opinion Schedule 2, Article 17(3), Court-fees Act, is not applicable to this case; an ad valorem court-fee is payable under Schedule 1, Article 1 as though there had been a definite prayer for cancellation.
Niamaiullah, J.
12. I agree with my learned brother that, on a proper construction of the plaint in this case, the plaintiff must be taken to have sued for cancellation of the sale-deed, dated 17th October 1926, executed by herself. Taking the plaint as a whole, it is clear that the suit is one falling within the purview of Section 39, Specific Relief Act. It is alleged that one of the defendants, taking advantage of the plaintiff's position as a helpless "pardanashin" woman, obtained from her the sale-deed which she did not understand and which she did not intend to execute, that the defendant was repeatedly asked to have "the said document cancelled" and that the plaintiff apprehends that if the document is left outstanding "it will extinguish her proprietary rights." These allegations are followed by a prayer that the instrument be "declared" to be void and ineffectual against her. The word used in the original plaint is "istiqrar," which may also be translated in English as "adjudged," a word which is used in Section 39, Specific Relief Act. It is quite correct to construe the last paragraph of the plaint, taking it in conjunction with the other allegations above referred to, as containing a prayer that the sale-deed may be adjudged void.
13. In each case the question is one of construction of the plaint and of ascertaining the relief which the plaintiff is claiming. Whether he is rightly claiming the relief of declaration need not be considered where the question is one of court-fee only. To my mind it is open to a plaintiff to sue for a declaration that a document is void or voidable without making it a suit falling within the purview of Section 39, Specific Relief Act. It may be that such a suit is, in certain circumstances, liable to be dismissed under the proviso to Section 42 of that Act, on the ground that the plaintiff being able to seek a further relief (e.g., cancellation) than a mere declaration, omits to do so. There is a class of cases in which it is imperative that a plaintiff should have an instrument set aside or cancelled. Even where it is not so imperative, but the plaintiff is "able to seek further relief," a mere declaration will not be granted. If a plaintiff deliberately prays for a mere declaration, that an instrument is void and if the circumstances of the case are such that the document can be completely annulled, he is, at least, "able" to have the instrument adjudged void, which implies that a copy of the decree annulling it shall be sent to the Registration Office for a note to be made on the copy therein retained, so that anyone searching and inspecting the Registration Office may at once find out that the document, though subsisting at one time, was subsequently annulled. In such a case his suit may be dismissed, being barred by the proviso to Section 42, Specific Relief Act. But, for all purposes of court-fee, it is not open to a Court to say that the plaintiff must be taken to have done what he should have done, though he persists in saying that he does not sue for cancellation.
14. Another class of cases in which a plaintiff can sue virtually for a declaration that an instrument is void or voidable against him without suing for cancellation is where the instrument has been executed by several persons or affects the interest of several persons against some of whom it is not void or voidable and the plaintiff sues for a declaration of his right to property and of the invalidity of the instrument so far as it affects his interest in such property. In such cases declaratory relief does not necessarily imply the relief that the instrument may be "adjudged" void or voidable with the consequence of a note of annulment being made in the Registration Office and of the Court ordering that the same be "delivered up and cancelled." In the present case however the plaint is clearly one for cancellation, and 1 agree with my learned brother in holding that the suit is one under Section 39" Specific Relief Act, and the plaintiff is liable to pay ad valorem court-fee.