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Issues: Whether a creditor's suit under Section 53 of the Transfer of Property Act seeking a declaration that an alienation is void against creditors is, in substance, a suit for cancellation of an instrument falling under Section 7(iv-A) of the Court-Fees Act or a declaratory suit falling under Article 17-A of Schedule II.
Analysis: The decisive test is whether the plaintiff must have the instrument cancelled in toto in order to establish his own title, or whether he only needs a declaration that the transaction is not binding on him. Where the instrument is executed between third parties and the plaintiff can only challenge it to the extent necessary to protect his rights, the suit is not one for cancellation but one for a declaration of non-binding effect. In a creditor's suit under Section 53 of the Transfer of Property Act, the transfer remains operative as between the parties to it, and the creditors only seek to avoid it to the extent required for satisfaction of their debts. The relief, therefore, is properly one for declaration and not for cancellation of the sale deed.
Conclusion: The suit falls under Article 17-A of Schedule II of the Court-Fees Act and not under Section 7(iv-A); the rejection of the plaint by the courts below was erroneous, and the appeal succeeded.
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