# Surendra Kumar v. Shanti Devi

- **Citation:** (2025) 7 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-21
- **Case number:** Matters Under Article 227 No. 5685 of 2024
- **Bench:** Arun Bhansali, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-v-shanti-devi-53595
- **Pages:** 29

## Headnote

Anand Kumar Singh, C.S.C.

Issue for Consideration
Whether an agreement to sell can be construed
as an instrument securing money or other
property so as to attract the provisions of
Section 7(iv-A) of the Court Fees Act, 1870 as
amended and applicable in the State of U.P., is
in for consideration before this Court and if it is
held that an agreement to sell is not an
instrument securing money or other property
then as a corollary whether in a suit for seeking
cancellation of such an agreement to sell, the
court fee payable would be in terms of Article
17(iii) of the Second Schedule of the Court Fees
Act or as per or Section 7(iv-A) of the Court
Fees Act.

Head Notes
The Constitution of India, 1950-Article
227 - The Court Fees Act, 1870 - Section
7(iv-A) & Article 17(iii) of the Second
Schedule - It cannot be said that an
agreement to sell does not secure either
the money or property for the purposes of
the Court Fees Act - An agreement to sell
may not be an instrument by which a right
in the property is created nor extinguishes
it (as per T.P. Act), but at the same time, it
is an instrument which does bring security
and
certainty
and
it
does
create
obligations which are enforceable in law
based upon which a party can seek an
appropriate relief in a Court of law -
Reference answered.

Held- An 'agreement to sell' will fall within the
meaning of the word 'instrument' 'securing
money or other property' having such value for
the purposes of Section 7(iv-A) of the Court
Fees Act - If a suit falls within Section 7(iv-A) of
the Court Fees Act, consequently, the court fees
payable would be on ad valorem basis taking
note of the explanation appended to Section
7(iv-A) of the Court Fees Act. The moment a
suit involves cancellation of either an instrument
or a decree as the case may be and it is
referable to Section 7(iv-A) of the Court Fees
Act then the fee would necessarily be paid on
ad valorem basis and that would ipso facto
exclude the applicability of Article 17(iii) of the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Court Fees Act - Suit seeking cancellation of an
agreement to sell would be governed by Section
7(iv-A) of the Court Fees Act and the court fees
payable would be in terms of Section 7(v) as
provided in the explanation to Section 7(iv-A) of
the Court Fees Act and not under Article 17(iii)
of the Second Scheduled.(Para 79, 81 & 82)
(E-15)

Case Law Cited
Suman Lata Agrawal v. Uttar Pradesh State
Industrial Development Corporation and others,
2020 SCC OnLine All 2785;Altaf Husain v. VIth
Additional District Judge, Saharanpur and
others, 2013 SCC OnLine All 13493;Purshottam
H. Jaye v. V.B. Pottdar, AIR 1966 SC 856;Som
Prakash Rekhi v. Union of India, AIR 1981 SC
212;Gopi Krishna Trivedi v. Sudama Prasad
Ojha, (2008) 9 SCC 401;Udai Pratap Gir and
another v. Shanta Devi and others, 1956 SCC
OnLine All 318;Smt. Bishnu Shri v. Smt. Suraj
Mukhi and others, AIR 1966 All 563 (FB);Chief
Inspector of Stamps, Uttar Pradesh, Allahabad
v. Vishnu Pratap Sugar Works, AIR 1967 All
242;Smt. Bibbi and another v. Sugan Chand and
others, AIR 1968 All 216 [FB]
List of Acts
The Constitution of India, 1950 - The
Court Fees Act, 1870

List of Keywords
Agreement to sell 'instrument' 'securing money
or other property'; Section 7(iv-A) of the Court
Fees Act; Suit seeking cancellation of agreement
to sell; Court fees payable under Section 7(v) ;
Not under Article 17(iii) of the Second Schedule

Case Arising From
Article 227 of the Constitution of India bearing
No.5685 of 2024, the learned Single Judge
referred two questions to be answered by a
Larger Bench

Appearances for Parties
Counsel for Petitioner :- Diwakar Pratap Pandey,
Uday Kumar

Counsel for Respondent :- Anand Kumar Singh,
C.S.C.
Judgment/Order of the High Court

## Text

_Characters 0–39,930 of 98,434. This is a partial read: ask again with offset=39930 for what follows._

7 All. Surendra Kumar Vs. Shanti Devi
109
cognizable cases after appropriate and
proper application of mind;

(3)
Outright
the
passport
applications be not rejected under section
6(2)(f) of the Passports Act if orders of the
Court, where the criminal case is pending,
have been passed as per the Government
Order dated 25.8.1993. The Director
General of Police to issue notification in
this regard also.

With these observations, the writ
petition is, accordingly, allowed."

8. In light of the above judgments,
we have no hesitation in holding that in the
present case, the passport authority has
acted beyond the law laid down by the
Hon?ble Supreme Court.

9. Accordingly, the writ petition is
disposed of directing the respondent no. 2,
Regional Passport Officer, to act in
accordance with law and issue a fresh
passport to the petitioner, if all other
conditions are met, within a period of four
weeks from the date of receipt of certified
copy of this order.
----------
(2025) 7 ILRA 109
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2025

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE JASPREET SINGH, J.

Matters Under Article 227 No. 5685 of 2024

Surendra Kumar ...Petitioner
Versus
Shanti Devi ...Respondent

Counsel for the Petitioner:
Diwakar Pratap Pandey, Uday Kumar
Counsel for the Respondent:
Anand Kumar Singh, C.S.C.

Issue for Consideration
Whether an agreement to sell can be construed
as an instrument securing money or other
property so as to attract the provisions of
Section 7(iv-A) of the Court Fees Act, 1870 as
amended and applicable in the State of U.P., is
in for consideration before this Court and if it is
held that an agreement to sell is not an
instrument securing money or other property
then as a corollary whether in a suit for seeking
cancellation of such an agreement to sell, the
court fee payable would be in terms of Article
17(iii) of the Second Schedule of the Court Fees
Act or as per or Section 7(iv-A) of the Court
Fees Act.

Head Notes
The Constitution of India, 1950-Article
227 - The Court Fees Act, 1870 - Section
7(iv-A) & Article 17(iii) of the Second
Schedule - It cannot be said that an
agreement to sell does not secure either
the money or property for the purposes of
the Court Fees Act - An agreement to sell
may not be an instrument by which a right
in the property is created nor extinguishes
it (as per T.P. Act), but at the same time, it
is an instrument which does bring security
and
certainty
and
it
does
create
obligations which are enforceable in law
based upon which a party can seek an
appropriate relief in a Court of law -
Reference answered.

Held- An 'agreement to sell' will fall within the
meaning of the word 'instrument' 'securing
money or other property' having such value for
the purposes of Section 7(iv-A) of the Court
Fees Act - If a suit falls within Section 7(iv-A) of
the Court Fees Act, consequently, the court fees
payable would be on ad valorem basis taking
note of the explanation appended to Section
7(iv-A) of the Court Fees Act. The moment a
suit involves cancellation of either an instrument
or a decree as the case may be and it is
referable to Section 7(iv-A) of the Court Fees
Act then the fee would necessarily be paid on
ad valorem basis and that would ipso facto
exclude the applicability of Article 17(iii) of the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Court Fees Act - Suit seeking cancellation of an
agreement to sell would be governed by Section
7(iv-A) of the Court Fees Act and the court fees
payable would be in terms of Section 7(v) as
provided in the explanation to Section 7(iv-A) of
the Court Fees Act and not under Article 17(iii)
of the Second Scheduled.(Para 79, 81 & 82)
(E-15)

Case Law Cited
Suman Lata Agrawal v. Uttar Pradesh State
Industrial Development Corporation and others,
2020 SCC OnLine All 2785;Altaf Husain v. VIth
Additional District Judge, Saharanpur and
others, 2013 SCC OnLine All 13493;Purshottam
H. Jaye v. V.B. Pottdar, AIR 1966 SC 856;Som
Prakash Rekhi v. Union of India, AIR 1981 SC
212;Gopi Krishna Trivedi v. Sudama Prasad
Ojha, (2008) 9 SCC 401;Udai Pratap Gir and
another v. Shanta Devi and others, 1956 SCC
OnLine All 318;Smt. Bishnu Shri v. Smt. Suraj
Mukhi and others, AIR 1966 All 563 (FB);Chief
Inspector of Stamps, Uttar Pradesh, Allahabad
v. Vishnu Pratap Sugar Works, AIR 1967 All
242;Smt. Bibbi and another v. Sugan Chand and
others, AIR 1968 All 216 [FB]
List of Acts
The Constitution of India, 1950 - The
Court Fees Act, 1870

List of Keywords
Agreement to sell 'instrument' 'securing money
or other property'; Section 7(iv-A) of the Court
Fees Act; Suit seeking cancellation of agreement
to sell; Court fees payable under Section 7(v) ;
Not under Article 17(iii) of the Second Schedule

Case Arising From
Article 227 of the Constitution of India bearing
No.5685 of 2024, the learned Single Judge
referred two questions to be answered by a
Larger Bench

Appearances for Parties
Counsel for Petitioner :- Diwakar Pratap Pandey,
Uday Kumar

Counsel for Respondent :- Anand Kumar Singh,
C.S.C.
Judgment/Order of the High Court

(Delivered by Hon'ble Jaspreet Singh, J.)

This judgment has been divided
into segments to facilitate analysis. These
are:-

A.
Introduction and
Issues

1-3
B.
Submission
on
Behalf
of
the
Petitioner

4-5
C.
Submissions on
Behalf
of
the
Respondents and
State of U.P.

5-6
D.
Submissions on
Behalf
of
the
Members of the
Bar.

6-8
E.
Discussions and
Analysis

8-39
E-I
Answer
to
Question No.1

40
E-II
Answer
to
Question No.2

40-41
F.
Conclusion
41

A. Introduction and Issues:-

1. A question of seminal importance as
to whether an agreement to sell can be
construed as an instrument securing money
or other property so as to attract the
provisions of Section 7(iv-A) of the Court
Fees Act, 1870 (for short, 'the Court Fees
Act') as amended and applicable in the
7 All. Surendra Kumar Vs. Shanti Devi
111
State of U.P., is in for consideration before
this Court. If it is held that an agreement to
sell is not an instrument securing money or
other property then as a corollary whether
in a suit for seeking cancellation of such an
agreement to sell, the court fee payable
would be in terms of Article 17(iii) of the
Second Schedule of the Court Fees Act or
as per or Section 7(iv-A) of the Court Fees
Act.

2. This issue arose before a learned
Single Judge of this Court in Surendra
Kumar v. Shanti Devi, a petition under
Article 227 of the Constitution of India
bearing No.5685 of 2024, wherein, the
learned Single Judge doubted the view of
another Single Judge of this Court in Altaf
Husain v. VIth Additional District
Judge, Saharanpur and others, 2013
SCC OnLine All 13493 and also in
Suman Lata Agrawal v. Uttar Pradesh
State
Industrial
Development
Corporation and others, 2020 SCC
OnLine All 2785, wherein it was held that
an agreement to sell does not secure money
nor any other property and that the court
fee payable in a suit seeking cancellation of
such an instrument would be governed by
Article 17(iii) of the Court Fees Act and
not as per Section 7(iv-A) of the Court Fees
Act.

3. The learned Single Judge in
Surendra Kumar (supra) noticed that the
decision in Altaf Husain (supra) was based
on a Full Bench decision of this Court in
Smt. Bibbi and another v. Sugan Chand
and others, AIR 1968 All 216 [FB], but in
Smt. Bibbi (supra) the issue was as to
whether a sale-deed would be an instrument
securing property or not, however, the Full
Bench had no occasion to consider the effect
of the words 'instrument securing money or
other property' in context with an agreement
to sell. Thus, finding a dichotomy in the
aforesaid decisions, the learned Single Judge
referred two questions to be answered by a
Larger Bench.

4. It is in this backdrop that this Larger
Bench was constituted to consider and
answer the following questions which read as
under:-

"(I) Whether, an agreement to sale,
which is duly registered, would amount to an
instrument securing the money or other
property as used in Section 7 (iv-a) of the
Court Fees Act as applicable in the State of
Uttar Pradesh?

(II) Whether, the court fees paid on
the suit for cancellation of an agreement to
sale would be governed by Section 7 (v) of
the Court Fees Act or under Article 17 (iii) of
the Second Schedule of the Court Fees Act?"

5. Considering the gravity of the
questions so referred to this Larger Bench,
this Court apart from hearing the learned
counsel appearing for the parties in the
petition also invited Members of the Bar to
advance their submissions on the questions
referred to this Larger Bench.

6. Learned counsel for the petitioner
canvassed
the
proposition
that
an
agreement to sell does not secure any
property or money, hence, a suit seeking
cancellation of an agreement to sell
would not fall within the clutches of
Section 7(iv-A) of the Court Fees Act
rather it would be covered by Section
17(iii) of the Second Schedule appended
to the Court Fees Act as applicable to the
State of U.P.

7. The said proposition was also
supported by Shri Pritish Kumar, Shri
112 INDIAN LAW REPORTS ALLAHABAD SERIES
S.M.S. Royekwar, Shri Ayush Tandon and
Shri Reshu Sharma, Advocates and learned
counsel, who advanced their submissions
on behalf of the Bar.

8. On the other hand, Shri Anand
Singh, learned standing counsel for the
State and learned counsel appearing for the
private-respondent
submitted
that
an
agreement to sell is definitely an instrument
and it secures the property and/or money,
hence, it will squarely fall within the ambit
of Section 7(iv-A) of the Court Fees Act
and further the court fee payable on a suit
seeking cancellation of such an agreement
to sell would be on ad valorem basis.

B. Submissions on Behalf of the
Petitioner:-

9. Learned counsel for the petitioner
submits that the word 'instrument' has not
been defined in the Court Fees Act but if it
is seen in context with the definition
contained in certain other Acts then it will
reveal that an agreement to sell is definitely
an instrument as defined in terms of
Transfer of Property Act, 1882 (for short,
'T.P. Act'). It has also been urged that the
word 'instrument' has also been defined in
the Indian Stamp Act, 1899 (for short, 'the
Stamp Act'). Upon a bare perusal of the
definition of the word 'instrument', as
mentioned in the T.P. Act as well as in the
Stamp Act it would reveal that it is very
widely worded and so an agreement to sell
would fall within the same and it cannot be
said that an agreement to sell is not an
instrument.

10. It is further urged that the
transaction which is made through an
agreement to sell creates obligations in
between the contracting parties and it also
brings certainty to the said transaction. The
reciprocal obligations of contracting party
are squarely relatable to the subject matter
which could be the property and money,
hence, an agreement to sell secures both the
property and the money (as the case may
be). Once, it is found that an agreement to
sell is an instrument and it secures the
property/money then as per the Scheme of
the Court Fees Act, the suit filed seeking
cancellation of such an agreement to sell
would be squarely covered by Section 7(ivA) of the Court Fees Act. It is, thus,
submitted a suit seeking cancellation of
agreement to sell falls under Section 7(ivA) of the Court Fees Act and in terms of
the aforesaid, the court fee payable is ad
valorem
considering
the
explanation
appended to Section 7(iv-A) of the Court
Fees Act, at the market value, and not as
per Article 17(iii) of the Second Schedule
of the Court Fees Act.

C. Submissions on Behalf of the
Respondents and State of U.P.:-

11.
Shri
Anand
Singh,
learned
standing counsel has forcefully submitted
that in order to unravel the controversy, the
provisions of Section 7(iv-A) of the Court
Fees Act be noticed. It is urged that the said
Section applies whenever a suit is filed for
seeking a relief of cancellation. In terms of
the said Section, cancellation can either be
of (i) a decree for money or other property
having a market value or (ii) an instrument
securing money or other property.

12. It is urged that the agreement to
sell would fall within the meaning of word
'instrument' and whenever a suit is filed for
seeking cancellation of an instrument then
in terms of the Scheme of the Court Fees
Act, such a suit would fall in terms of
Section 7(iv-A) of the Court Fees Act,
hence, the plaintiff of a suit seeking of
7 All. Surendra Kumar Vs. Shanti Devi
113
cancellation would have to pay ad valorem
court fee as per the explanation appended
to the aforesaid section and not as per
Article 17 of the Second Schedule of the
Court Fees Act.

13. It is further urged that Article 17 of the
Second Schedule of the Court Fees Act is a
residuary article and only when a suit
containing a relief which may not fall in any of
the categories as provided under Section 7 of
the Court Fees Act, only then it comes into
play. However, in the present case, the
agreement to sell being an instrument and
falling squarely in terms of Section 7(iv-A) of
the Court Fees Act, hence, the residuary Article
cannot be invoked, accordingly, the court fees is
to be paid in terms of the aforesaid Section 7(ivA) of the Court Fees Act.

14. Learned counsel for the privaterespondent has also by and large adopted
the submissions of Shri Anand Singh,
learned standing counsel for the State.

D. Submissions on Behalf of the
Members of the Bar:-

15.
The
submissions
have
been
advanced by Shri Pritish Kumar, Shri
S.M.S. Royekwar, Shri Ayush Tandon and
Shri Reshu Sharma, learned counsel and
Members of the Bar.

16. Shri Pritish Kumar, learned counsel
leading the submissions has vehemently
urged that the Court Fees Act is a fiscal
statute and it is to be strictly construed. The
Scheme of the Court Fees Act is such that
Section 7 itself has various sub-sections and
they relate to different types of suits which
can be filed before the Civil Court.

17. It is further submitted that it is
only the plaint averments which are to be
seen while determining the issue of court
fees and in order to do so, the plaint
averments have to be read as it is and
nothing can be added or subtracted.

18.
It
is
also
urged
that
the
terminology used in Section 7(iv-A) of the
Court Fees Act reveals that it is attracted
when a person approaches a Court for
seeking cancellation or getting a decree or
instrument adjudged void or voidable
which secures money or property, having a
market value. As far as a decree is
concerned, there does not appear to be
much of a problem because the decree
being a formal adjudication of the rights of
the parties it can explicitly be seen from the
judgment from which the decree arises as
to whether the said decree secures a
property or money or not. In such
circumstances,
whenever,
a
suit
for
cancellation or getting such a decree
adjudged as void or voidable is brought
then Section 7(iv-A) of the Court Fees Act
would clearly be attracted.

19. It is further urged that insofar as
the latter part of said Section is concerned,
the same is only applicable when a suit is
filed seeking cancellation or getting an
instrument adjudged void or voidable,
however, the instrument itself should be
capable of securing either the property or
money, or both.

20. It is submitted that since an
agreement to sell may not secure the
property in light of Section 54 of the T.P.
Act which states that a contract for sale of
an immovable property does not by itself
create any interest in or charge on such
property, hence, an agreement to sell does
not secure the property nor money coupled
with the fact that an agreement to sell is not
even an instrument which secures money,
114 INDIAN LAW REPORTS ALLAHABAD SERIES
hence, the said Section 7(iv-A) of the Court
Fees Act is not attracted and as such a suit,
which seeks to get an agreement to sell
cancelled, would not fall under Section
7(iv-A) of the Court Fees Act rather it will
fall within the residuary provision of
Article 17(iii) of the Court Fees Act for the
purposes of payment of Court Fee.

21. Shri Royekwar, learned counsel
taking the submissions forward has urged
that an instrument capable of securing
money or property is one which by itself
secures the said money or property.
Instruments of such nature are interalia a
promissory note, mortgage deed, bill of
lading, cheques, negotiable instruments, a
deed of hypothecation, a deed of charge, a
deed of pledge. In contradistinction an
agreement to sell only reflects the intention
of the vendor to sell and acceptance of the
vendee to purchase the property, on the
terms and conditions as may be mentioned
in the said agreement to sell. However, in
no way, the property which may be the
subject matter of the said agreement to sell
is secured in any manner nor the money
which may have been paid as earnest
money or the remaining part consideration
which may be paid at a future date is
secured. Hence, neither the property nor the
money
is
secured.
Accordingly,
an
agreement to sell cannot be said to be an
instrument securing either property or
money. Hence, it would not attract Section
7(iv-A) of the Court Fees Act rather in a
suit seeking cancellation of an agreement to
sell it would be governed by Article 17(iii)
of the Court Fees Act and to that extent the
decision rendered by this Court in Altaf
Husain (supra) reflects the correct position
of law.

22. Shri Ayush Tandon and Shri
Reshu
Sharma,
learned
counsel
also
advanced their submissions and by and
large supported the view as expressed by
Shri Pritish Kumar and Shri Royekwar.

E.
 Discussions and Analysis:-

23. Having considered the wide
spectrum of the arguments advanced and
before proceeding further, it will be
appropriate to reproduce the first question
referred
to
this
Larger
Bench
for
consideration:-

"(I) Whether, an agreement to
sale, which is duly registered, would
amount to an instrument securing the
money or other property as used in Section
7 (iv-a) of the Court Fees Act as applicable
in the State of Uttar Pradesh?"

24. At the outset, it may be seen that
the Court Fees Act, 1870 is a PreIndependence Act. The said Act came to be
amended in the year 1938. Section 7 of the
Court Fees Act, which is under the scanner
of this Court, has a nomenclature and it is
further sub-divided in eleven sub-parts.

25. For the sake of convenience, the
entire Section 7 as applicable to the State of
U.P., along with its eleven sub-parts is
reproduced here in order to get a complete
overview of the said section, at one given
place:-

"7.
Computation
of
fees
payable in certain suits for money.-The
amount of fee payable under this Act in the
suits next hereinafter mentioned shall be
computed as follows:

For money.-(i) In suits for
money including suits for damages or
compensation, or arrears of maintenance, or
annuities, or of other sums payable
7 All. Surendra Kumar Vs. Shanti Devi
115
periodically-according
to
the
amount
claimed;

For
maintenance
and
annuities.-(ii)
(a)
In
suits
for
maintenance and annuities or other sums
payable periodically, according to the value
of the subject matter of the suit and such
value shall be deemed to be ten times the
amount claimed to be payable for one year:

Provided that in suits for personal
maintenance by females and minors, such
value shall be deemed to be the amount
claimed to be payable for one year.

For reduction or enhancement
of maintenance and annuities.-(b) In
suits for reduction or enhancement of
maintenance and annuities or other sums
payable periodically according to the value
of the subject-matter of the suit and such
value shall be deemed to be ten times the
amount sought to be reduced or enhanced
for one year;

For other movable property
having a market value.-(iii) In suits for
movable property other than money, where
the subject-matter has a market valueaccording to such value at the date of
presenting the plaint;

For a declaratory decree with
consequential relief.-(iv) In suits-

(a) to obtain a declaratory decree
or order, where consequential relief other
than reliefs specified in sub-section (iv-A)
is prayed; and

For accounts.-(b) For accountsaccording to the amount at which the relief
sought
is
valued
in
the
plaint
or
memorandum of appeal:

Provided that in suits falling
under clause (a), where the relief sought is
with reference to any immovable property,
such amount shall be the value of the
consequential relief and if such relief is
incapable of valuation, then the value of the
immovable
property
computed
in
accordance with sub-section (v), (v-A) or
(v-B) of this section as the case may be :

Provided further that in all suits
falling under clause (a), such amount shall
in on case be less than Rs. 300:

Provided also, that in suits falling
under clause (b), such amount shall be the
approximate sum due to the plaintiff and
the said sum shall form the basis for
calculating or determining the valuation of
an appeal from a preliminary decree passed
in the suit.

(iv-A)
For
cancellation
or
adjudging void instruments and decree.-
(iv-A) In suits for or involving cancellation
of or adjudging void or voidable a decree
for money or other property having a
market value, or an instrument securing
money or other property having such value:

(1) where the plaintiff or his
predecessor-in-title was a party to the
decree or the instrument, according to the
value of the subject-matter, and

(2) where he or his predecessorin-title was not a party to the decree or
instrument, according to one-fifth of the
value of the subject-matter, and such value
shall be deemed to be-

if the whole decree or instrument
is involved in the suit, the amount for
which or value of the property in respect of
which the decree was passed or the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument executed and if only a party of
the decree or instrument is involved in the
suit, the amount or value of the property to
which such part relates.

Explanation.-The value of the
property for the purposes of this subsection shall be the market-value, which in
the case of immovable property shall be
deemed to be the value as computed in
accordance with sub-sections (v), (v-A) or
(v-B), as the case may be.

(iv-B) For easement.-In suits-

(a) for a right to some benefit
(not herein otherwise provided for) to arise
out of land;

(b) For an injunction.-to obtain
an injunction;

(c) To establish an adoption.-to
establish an adoption or to obtain a declaration
that an valid; alleged adoption is valid;

(d) To set aside an adoption.-to
set aside an adoption or to obtain a
declaration that an alleged adoption is
invalid or never, in fact, took place;

(e) To set aside an award other
than awards mentioned in Section 8.-to set
aside an award not being an award mentioned
in Section 8; according to the amount at which
the relief sought is valued in the plaint:

Provided that such amount shall
not be less than one-fifth of the market
value of the property involved in or
effected by the relief sought or Rs.200
whichever is greater :

Provided further that in the case
of suits falling under clauses (a) and (b),
the amount of court-fee leviable shall in no
case exceed Rs.500.

Explanation 1.-When the relief
sought is with reference to any immovable
property the market-value of such property
shall be deemed to be the value computed
in accordance with sub-section (v) (v-A) or
(v-B) of this section, as the case may be.

Explanation 2.-In the case of
suits-(i) falling under clauses (a) and (b),
the property which is affected by the relief
sought, and where properties of both the
plaintiff and defendant are affected, the
property of the plaintiff so affected;

(ii) falling under clauses (c) and
(d), the property to which title by
succession or otherwise may be diverted or
affected by the alleged adoption; and

(iii) falling under clause (e), the
property which forms the subject matter of
the award;

shall be deemed to be the
property involved in or affected by the
relief sought within the meaning of the
proviso to this sub-section.

(iv-C)
For
restitution
of
conjugal rights.-In suits-

(a) For the restitution of conjugal
rights;

(b) For marital rights.-for
establishing dissolving a marriage; or
annulling, or dissolving a marriage;

(c)
For
guardianship.-for
establishing custody or guardianship of any
person
such
as
s
minor,
including
guardianship for the purpose of marriage;
7 All. Surendra Kumar Vs. Shanti Devi
117

according to the amount at which
the relief sought is valued in the marriage;
plaint but in no case shall such amount be
less than Rs.200.

(v) For possession of lands,
buildings or gardens.-In suits possession
of land, buildings or gardens-

according to the value of the
subject-matter; and such value shall be
deemed to be-

(I) Where the subject-matter is
land, and-

(a) where the land forms an entire
estate or a definite share of an estate paying
annual revenue to Government, or forms
part of such an estate, and is recorded in the
Collector's register as separately assessed
with such revenue and such revenue is
permanently settled-

thirty times the revenue so
payable;

(b) where the land forms an entire
estate or a definite share of an estate paying
annual revenue to Government, or forms
part of such estate and is recorded as
aforesaid and such revenue is settled but
not permanently-

ten times the revenue so payable;

(c) where the lands pays no such
revenue or has been partially exempted
from such payment, or is charged with any
fixed payment in lieu of such revenue, and
net profits have arisen from the land during
the three years immediately preceding the
date of presenting the plaint-

twenty times the annual average
of such net profits; but when no such net
profits have arisen therefrom, the market
value which shall be determined by
multiplying by twenty the annual average
net profits of similar land for the three
years immediately preceding the date of
presenting the plaint;

(d) where the land forms part of
an estate paying revenue to Government,
but is not a definite share of such estate and
does not come under clause (a), (b) or (c)
above-

the market value of the land
which shall be determined by multiplying
by fifteen the rental value of the land,
including assumed rent on proprietary
cultivation, if any,

(II) where the subject-matter is a
building or garden-

according to the market-value of
the building or garden, as the case may be.

Explanation.-The word 'estate'
as used in this sub-section, means any land
subject to the payment of revenue for
which the proprietor or farmer or raiyat
shall have executed a separate engagement
to Government or which, in the absence of
such
engagement,
shall
have
been
separately assessed with revenue.

(v-A) For possession of superior
proprietary and under-proprietary land.
In suits for possession-

(1) of superior proprietary rights
where under-proprietary or sub-proprietary
rights exist in the land-
118 INDIAN LAW REPORTS ALLAHABAD SERIES

according to the market-value of
the subject-matter, and such value shall be
determined by multiplying by fifteen the
annual
ne
profits
of
the
superior
proprietary;

(2) of under-proprietary or subproprietary land as such.-

according to the value of the
subject-matter, and such value shall be
determined by multiplying by ten the
annual
under-proprietary
on
subproprietary rent, as the case may be,
recorded in the Collector's register as
payable for the land for the year next
before the presentation of the of the plaint.

If no such rent is recorded in the
Collector's register the value shall be
determined in the manner laid down in
clause (c) of sub-section (v of this section
save that the multiple will be ten.

Explanation.-Land held by any
permanent lessees shall b treated for the
purposes of this sub-section, as underproprietary o sub-proprietary land.

(v-B) Possessory suits between
tenants.-In suits for possession land
between rival tenants and by tenants
against trespasser according to the value of
the subject-matter and such value shall b
determined if such land is the land of-

(a) a permanent tenure-holder or
a fixed rate tenant.-by multiplying by
twenty the annual rent recorded in the
Collector's register as payable for the land
for the year next before the presentation of
the plaint;

(b)
an
ex-proprietary
or
occupancy tenant.-by multiplying by two
such rent in case of suits for possession of
land between rival tenants, and by annual
rent in suits by tenants again trespassers;

(c) any other tenant.-by annual
rent.

If no such rent is recorded in the
Collector's register, the value shall be
determined in the manner laid down in
clause (c) of sub-section (v) of this section
save that the multiple shall be that entered
in clauses (a), (b) and (c) of this sub-section
according as the class tenancy affected is
governed by clause (a), (b) or (c) of this
sub-section.

(vi) To enforce a right of preemption.-In suits to enforce a right of preemption-according to the value computed
in accordance with paragraph (v) of this
section of land, [building) or garden in
respect of which the right is claimed.

(vi-A) for partition.-In suits for
partition.-

according to one-quarter of the value of the
plaintiff's share of the property;

and according to the full value of
such share if on the date of presenting the
plaint the plaintiff is out of possession of
the property of which he claims to be a coparcener or co-owner, and his claim to be a
co-parcener or co-owner on such date is
denied.

Explanation.-The value of the
property for the purposes of this subsection shall be the market-value which in
the case of immovable property shall be
deemed to be the value as computed in
accordance with sub-sections (v), (v-A) or
(v-B), as the case may be.
7 All. Surendra Kumar Vs. Shanti Devi
119

(vii) For interest of assignee of
land revenue.-In suit for the interest of an
assignee of land revenue-fifteen times his
net profits as such for the year next before
the date of presenting the plaint.

(viii) To set aside or to restore an
attachment.-In suits to set aside or to
restore an attachment including suits to set
aside an order passed under Order XXI,
Rules 60, 61 or 62 of the Code of Civil
Procedure according to half of the amount
for which attachment was made, or
according to half of the value of the
property or interest attached, whichever is
less.

Explanation.-The value of the
property or interest for the purposes of this
sub-section shall be the market-value which
in the case of immovable property or
interest in such property shall be deemed to
be the value as computed in accordance
with sub-sections (v), (v-A) or (v-B), as the
case may be.

(ix) To redeem.-In suits against
a mortgagee, for the recovery of the
property
mortgaged-according
to
the
principal money expressed to be secured by
the instrument of mortgage.

(ix-A) To foreclose.-In suits by
mortgagee to foreclose the mortgage, or
where the mortgage is made by conditional
sale, to have the sale declared soluteaccording to the total amount claimed by
way of principal and interest.

(x) To specific performance.-In
suits for specific performance-

(a) of a contract of saleaccording
to
the
amount
of
the
consideration;

(b) of contract of mortgageaccording to the amount agreed to be
secured;

(c) of a contract of leaseaccording to the aggregate amount of the
fine or premium (if any) and of the rent
agreed to be paid during the first year of the
term;

(d) of an award-according to the
amount or value of the property in dispute,
and such value shall be the market-value
which in the case of immovable property
shall be deemed to be the value as
computed in accordance with sub-sections
(v), (v-A) or (v-B), as the case may be.

(xi)
Between
landlord
and
tenant.-In the following suits between
landlord and tenant-

(a) for the delivery by a tenant of
the counterpart of a lease;

(b) to enhance the rent of a tenant
having a right of occupancy;

(c) for the delivery by a landlord
of a lease;

(cc)
for
the
recovery
of
immovable
property
from
a
tenant,
including a tenant holding over after the
determination of a tenancy;

(d) to contest a notice of
ejectment;

(e) to recover the occupancy of
immovable property from which a tenant
has
been
illegally
ejected
by
the
landlord;

(f) for abatement of rent;
120 INDIAN LAW REPORTS ALLAHABAD SERIES

(g) for determination of rent; and

(h) for determination of rent.

according to the amount of the
rent of immovable property to which the
suit refers, payable for the year next before
the date of presenting the plaint, except in
the case of suits falling under clause (h) in
which, according to twice the amount
claimed by the plaintiff to be the annual
rent."

26. From a perusal of the aforesaid
Section, it would reveal that sub-part (i)
relates to suits for money; (ii) relates to
maintenance of annuities; (iii) is relatable
to movable properties having market value;
(iv) relates to suits for declaratory decree
with consequential reliefs; (iv-A) relates to
suits seeking cancellation or adjudging void
instruments and decrees; (iv-B) relates to
suits for easement and it further has five
sub-divisions which inter alia refers even to
suits for injunction; (iv-C) relates to suits
for restitution of conjugal rights and inter
alia also brings within its fold suits relating
to marital rights and guardianship; (v)
relates to suits for possession of land,
buildings or gardens; (v-A) for possession
of
superior
proprietary
and
under
proprietary rights in the land; (v-B)
possessory suits between tenants; (vi) to
enforce a right of preemption; (vi-A) for
partition; (vii) for interest of assignee of
land revenue; (viii) to set aside or to restore
to an attachment; (ix) to redeem against a
mortgagee for recovery of mortgaged property;
(ix-A) to foreclose a mortgage; (x) for specific
performance and (xi) suits between landlord and
tenants. This would primarily indicate the broad
classification of Section 7 which encompasses
almost all types and nature of suits, which may
be filed. It also indicates the court fee which may
be payable depending upon the nature of relief
sought in a suit and which may fall in any of the
aforesaid classifications.

27. For a better appreciation of the
controversy, it will be appropriate to take a closer
look at Section 7(iv-A) of the Court Fees Act,
which reads as under:-

"For cancellation or adjudging void
instruments and decree.-(iv-A) In suits for or
involving cancellation of or adjudging void or
voidable a decree for money or other property
having a market value, or an instrument securing
money or other property having such value:

(1) where the plaintiff or his
predecessor-in-title was a party to the decree or
the instrument, according to the value of the
subject-matter, and

(2) where he or his predecessor-intitle was not a party to the decree or instrument,
according to one-fifth of the value of the subjectmatter, and such value shall be deemed to be-

if the whole decree or instrument is
involved in the suit, the amount for which or
value of the property in respect of which the
decree was passed or the instrument executed
and if only a party of the decree or instrument is
involved in the suit, the amount or value of the
property to which such part relates.

Explanation.-The value of the
property for the purposes of this subsection shall be the market-value, which in
the case of immovable property shall be
deemed to be the value as computed in
accordance with sub-sections (v), (v-A) or
(v-B), as the case may be."

28. On the perusal of the aforesaid
section, it would indicate that any suit filed
which involves cancellation or adjudging
void or voidable, a decree for money or
7 All. Surendra Kumar Vs. Shanti Devi
121
other property or an instrument securing
money or other property, would fall in the
aforesaid category. So far as a decree for
money or other property is concerned that
may not pose much of a problem since the
decree in itself is a formal adjudication of
rights of the litigating parties which
emerges from the judgment of a Court, it
can shed light as to whether it relates to
money or other property or both. Hence, in
respect of this part generally there may not
be much difficulty to ascertain the
correctness of the court fee payable.

29. However, the core question to be
answered is whether an agreement to sell is
an instrument or not. In case, if it is such
then whether it secures money or other
property. If the two conditions are met that
is to say that an agreement to sell is an
instrument and it secures either money or
other property or both, then it would fall
within the aforesaid provision of Section
7(iv-A) of the Court Fees Act.

30.
The
first
condition
to
be
ascertained is whether an agreement to sell
is an 'instrument' or not. In order to discern
the same, it will be relevant to find out the
appropriate
meaning
of
the
word
'instrument' for the purposes of the Court
Fees Act.

31. The word 'instrument' is a generic
word and unless it is read in context to a
particular subject matter or perspective, it
may give rise to different meanings which
may not be helpful to understand the
subject and context in which it is used.

32. Since, the word 'instrument' is not
defined in the Court Fees Act, accordingly,
it will be prudent to notice the meaning of
the word 'instrument' with the aid of legal
dictionary and contemporaneous Acts and
then put it a context with reference to the
subject.

33. In Stroud's Judicial Dictionary
'Words and Phrases', Eighth Edition, the
word 'instrument' as applicable in different
contexts has been mentioned as:-

"INSTRUMENT.
An
"instrument" is a writing, and generally
imports a document of a formal legal kind.
Semble, the word may include an Act of
Parliament
(see
DEED
OF
SETTLEMENT) and in s.68 of the Trustee
Act 1925 (c. 18), it was specifically defined
as including an Act of Parliament. But in
Canada a statute was held not to be an
"instrument" within r.607 (Ont.) (Re Mann
Const. 51 D.L.R. (2d) 580), and it is
doubtful
whether
a
by-law
is
an
"instrument" within r.611 (Ont.) (Re
Mosport Park and Clarke [1970] 3 O.R.94).

"The
words
'instrument
of
foundation or statutes', Endowed Schools
Act 1869 (c.56), s.19, and Endowed
Schools Act 1873 (c.87), s.7, point with
great distinctness to written instruments"
(per Selborne C., St. Leonards Trustees
Charity Commissioners, 10 App. Cas. 304);
and "entitled under any instrument",
Malins' Act (c.57) s.1, did not include an
intestacy (Allcard v Walker [1896] 2 Ch.
369; see Re Elcom [1894] 1 Ch. 303).

A power by "deed, instrument, or
will" is well executed by a mere writing
which is neither a deed nor a will, provided
the document refers to the power, or can
only have effect by operating on a fund
which is subject to the power, e.g. an order,
a letter, or a cheque on the fund; and this is
not altered by the power providing that the
"deed, instrument, or will" shall not be
"executed" until after a stated event
122 INDIAN LAW REPORTS ALLAHABAD SERIES
(Brodrick v Brown, 1 K. & J. 328). See
WRITING; INSTRUMENT IN WRITING;
TESTAMENTARY INSTRUMENT.

Orders
of
Court
were
not
"instruments" within Apportionment Act
1834 (c.22) 5.2 (Jodrell v Jodrell, L.R. 7
Eq. 461).

A post office telegram accepting
a wager was an "instrument" within
Forgery Act 1861 (c.98) s.38 (R. v Riley
[1896] 1 Q.B.