A suit for declaring a transaction void on grounds such as fraud, misrepresentation, etc., requires payment of court-fee on ad valorem basis.

G.N.Prasad, J.

1. The petitioner is the plaintiff of Title suit No. 211 of 1963 . That was instituted in the Court of the Munsif, First Court, Bhagalpur. He is aggrieved by the order of the Court below dated 13-7-1965 (sic) upon him to pay court-fee upon the (sic) ad valorem basis.

2. In substance, the suit is for a declaration that two sale deeds executed by the petitioner in favour of defendants 1 to 4 are void The relief portion of the plaint summarises the grounds upon which such a declaration has been sought, by the petitioner. One of the grounds put forward is that the written consent of the Collector was not obtained as contemplated by Sec. 49C read with Section 49B of the Bihar Tenancy Act. Another ground upon which such a declaration is sought is that the sale deeds were brought into existence under fraud, misrepresentation and collusion and no consideration had passed thereunder.

3. It is well settled that where a transaction is void ab initio, a suit for declaration to that effect can be instituted on payment of the fixed court-fee provided in Schedule II, Article 17 of the Court Fees Act. But where a transaction is not void ab initio, but is alleged to be vitiated on certain grounds, such as fraud, misrepresentation, undue influence, etc., a suit for declaring the transaction to be void is not covered by the provision as to fixed court-fee provided in the Court Fees Act. In such a suit, the court is called upon to make a declaration properly so called as distinguished from recording a mere finding, that the transaction is void and in respect of a suit for a declaration properly so called, the plaintiff must pay court-fee on ad valorem basis.

4. In the present case, one of the grounds upon which the two sale deeds are sought to be challenged might well fall within the purview of a suit governed by Article 17 of the Second Schedule of the Court Fees Act. But so far as the second ground of challenge out forward to the sale deeds is concerned there cannot be the slightest room for doubt that it attracts the provisions of the Court Fees Act relating to payment of ad valorem court-fee under Section 7(iv) (c). In this view of the matter, I am of the opinion that the decision of the Court below is correct and must be upheld.

5. On behalf of the opposite party my attention has been drawn to the fact that by 3 subsequent order passed by the court below on 14-8-1965, the plaint stood reject-ed for non-payment of the court-fee. That order has, undoubtedly, the character of a decree and it was open to the petitioner to have preferred an appeal against the order of rejection of the plaint. That has not been done. Therefore, the present application also appears to me to have become infructuous.

6. Learned counsel for the petitioner, however, relied upon Basuki Prasad Singh v. Satya Kinkar Sahana, AIR 1950 Pat 470 where a Bench of this Court observed that where the order of the lower court demanding deficit court-fee is set aside in revision, the High Court ought of necessity as a consequence, to set aside the order of the lower court rejecting the plaint for non-payment of deficit court-fee. That case, however, came to this Court in Civil Revision against the order of the lower court rejecting a plaint for non-payment of deficit court-fee. The present application in revision is not directed against the order of rejection of the plaint passed by the Court below on 14-8-1965. Therefore, no question of the order dated 14-8-3965 being set aside arises before this Court. Further, that order cannot be set aside in the present case since I feel satisfied that the order of the court below dated 13-7-1965 demanding ad valorem court-fee from the petitioner is right.

7. For the aforesaid reasons, this application fails and is dismissed. But in the circumstances, there will be no order as to costs.