R.D. Somasundaram Pillai, a person of unsound mind by his second son and next friend R. Bhuvaneswar vs S. Janaki Ammal and others

Krishnaswami Nayudu, J.—The point that arises in this revision petition is as to whether the fixed court-fee paid on the plaint under Sch. II

Art. 17-A (1) is correct, the view taken by the lower Court being that the court-fee should be paid under S. 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 2lst 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. 11.10. 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 there fore, 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 S. 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, S. 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 infants'' contract is concerned, under the Indian Law it is void and the same is the position by virtue of S. 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 was a party and therefore the plaintiff cannot escape payment of court-fee

under S. 7 (iv) (A). In Krishnasami Aiyangar Vs. Kuppu Ammal and Another, 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 relief''s and so the court-fee

paid by him under S. 7 (iv) (A) was sufficient. This decision was cited with approval in Sahul Hameed Rowther v. Mohideen Pichai (1843) 1 M L

J. 270=61 L.W. 270. 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 jurisdiction under S. 7 (iv)

(A) of the Court Fees Act. So the mere circumstance that the plaintiff in this case asked for a declaration that the deed of gift was void, having

been executed by a person who was not of sound mind, does not amount to asking for a relief in the nature of a cancellation of the document, but

only asking the Court to give a declaration of the void nature of the document by reason of the contractual incompetency of the parties, who

entered into the contract covered by the deed. In so far as a suit on behalf of a person of unsound mind to set aside a transaction to which he was

a party is concerned, it is not in any way substantially different from the one seeking to set aside a contract by a minor during his minority and the

contract by a person of unsound mind is equally void as that of a minor''s contract. Both are in the position of persons not competent to contract

and transactions entered into by them are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to

have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to

establish their right to other relief''s consequent on the transaction being void. The view taken therefore by the learned City Civil Judge cannot be

supported. The proper court fee has therefore been paid on the plaintiff. The petition is allowed. The plaint will be admitted end the suit proceeded

with. There will be no order as to costs.