Judgment.-The point that arises in this revision petition is as to whether the fixed court-fee paid on the plaint under Schedule II, Article 17-A(1) is correct, the view taken by the lower Court being that the court-fee should be paid under section 7(iv-A).

The suit is on behalf of a person, who is described as of unsound mind, by a next friend for a declaration that a deed of gift executed by the plaintiff, dated 21st February, 1949, is void and not binding on him and for an injunction restraining the defendants from interfering with the plaintiff’s possession through the next friend. The plaintiff paid a fixed court-fee of Rs. 15 for the relief for declaration and valued relief for injunction at Rs. 100 and paid a court-fee of Rs. 11-1-0. The allegations in the plaint are in substance that the plaintiff was a person of unsound mind incapable of understanding and managing his own affairs, that the second defendant taking advantage of his (plaintiff’s) physical presence in his house obtained a deed of gift in favour of his wife with false recitals, that the mental condition of the plaintiff was particularly bad at the time of the execution of the deed of gift and he was not in a sound and disposing state of mind, that the deed of gift was the result of fraud, coercion and undue influence and therefore was void in the circumstances and not binding on the plaintiff.

The learned City Civil Judge rejected the plaint on the ground of insufficient court-fee and incorrect valuation, his view being that court-fee should be paid under section 7(iv-A) as the suit is in effect to set aside a deed to which the plaintiff is a party and that unless the plaintiff has the gift deed set aside or declared void ab initio, he would not be entitled to the further relief of declaration and injunction.

Prima facie the case as set out in the plaint is that the contract as disclosed in the deed is void, as it has been entered into by a person not competent to contract. Section 11 of the Indian Contract Act provides that:

“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.”

In so far as infant’s contract is concerned, under the Indian law it is void and the same is the position by virtue of section 11 in so far as a contract with a person who is not of sound mind is concerned. The plaint proceeds on the basis that just as a minor who is incompetent to contract, the plaintiff not being of sound mind was equally incapable of contracting. If so, such a contract is void and does not require to be set aside, the contract being ignored for the purpose of any relief which the person of unsound mind might ask for.

It is urged however that there is a prayer for a declaration that the deed of gift is void and that will necessarily involve the cancellation of a document to which the plaintiff was a party and therefore the plaintiff cannot escape payment of court-fee under section 7(iv-A). In Krishnaswami v. Kuppu Ammal1 in a suit for declaration of the plaintiff’s title and for an injunction alleging in the settlement deed under which the defendant claimed was a sham and fictitious document under which no property was intended to pass it was held that the plaintiff was not obliged to get the document set aside before becoming entitled to the other reliefs and so the court-fee paid by him under section 7(iv-A) was sufficient. This decision was cited with approval in Sahul Hameed Rowther v. Mohideen Pichai2, where the plaintiff alleged that the sale deed executed by him in favour of the defendant was sham and nominal and asked for a declaration to that effect and for an injunction restraining the defendant from interfering with the plaintiff’s possession and it was held that it was not necessary for the plaintiff to pray for cancellation of the deed and to value his suit for purposes of court-fee and jurisdict

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