STATE OF U.P. versus RAM KRISHAN BURMAN (DEAD) BY L. RS. & ORS.

STATE OF U.P,

RAM KRISHAN BURMAN (DEAD) BY L. RS. & ORS.

September 26, 1969

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]

Court Fees Act, 1870 (7 of 1870), s. 7 (iv·.'1) inserted by U.P. Legislature-A decree for mere declaration of title to properi,y whether der;ree 'for money or other property' or an 'instrument securing rhoney or ot~er property' within meaning of section-Undesirability of prolonging litigation by_ roising pleas without merit.

As the reversioner of Hindu widow's estate one 'R' instituted suit No. 4 of 1950 in the court of the Civil Judge Jaunpur, for declaration that he was the 'owner in possession' of the said estate. 'B' who claimed to be an heir of the widvw was impleaded as party defendant. The suit was decreed ex-parte. 'B' then filed suit No. 14 of 1956 in the same court against the heits of 'R' who died after the passing of the dettee in his suit. In suit No. 14 of 1956 'B' claimed that as heir of the said widow he was entitled to her stridhana properties. He averred that in suit No. 4 of 1950 'R' had arrived at an oral compromise with him promising him 5/!6th share in the, .whole estate; that the oral compromise was later reduced into memorandum; that 'R' had represented to him that compromise decree would be obtained_ in the suit; and that takiiig advan~ tage of his ignorance 'R' had obtained an ex-parte decree against him. On these allegations 'B' prayed that he be declared the owner of all the properties left by the widow, and in the alternative he be declared owner of her stridhan properties, the decree in sujt No. 4 of 1950 having no adverse effect on his rights. On the footing that he had claimed mere decl~ration 'B' paid Rs. 18/12/- as court-fees as in claim under Sch. II cl. !?(iii) of the Court Fees Act. The Inspector of Stamps, however, reported to the Qvil Judge that in "is view the case le'.. withins. ?(iv-A) of the Act as incorporated therein by the U.P. State Legislature and court fee was payable on the value of the subject-matter of the suit. The Civil Judgo ordered the plaintiff to amend the plaint and pay the court fee remaining due. In appeal the High Court decided in favour of the res-pondent, Tb State of U.P. appealed. It was contended on behalf of the appellant: (i) that the plaintiff sought declaration adjudging void the decree in suit No. 4 of 1950 which was decree '1for money or other property" within the meaning of s. ?(iv-A) since that expression must include decree concerning or relating to money or other property; (ii) that in any case the decree in suit No. 4 was an 'in'Strument' securinJ! money or other property having market value and s. 7(iv-A) was. therefore attracted; (iii) ttat the relief for declaration was mere device intended to conceal the true purpdrt of the claim. ·

HELD : The appeal must be dismissed.

(.i) decree for declaration of title to money or other property is not decree for money or property. The expression "decree fol' money or other property'' means only decree for recovery of money or other property. It does not include Jecree concerning title to money or other propel:ty. [592 E-FJ

(ii) decree ad invitum is not an instrument securing money or other property : such decree is record of the formal adjudication of the

court relating to right claimed by party to the suit. It does ~ot by its own force secure money or property. [592 G]

(iii) The relief for declaration was not mere device or subterfuge intended to conceal the true purport of the claim for the prope1ty in dispute was in the possession of the District Magistrate, and if the Civil Court declared the plaintiff1s- title he would be entitled to secure recogni· tion of his rights by the District Magistrate. [593 A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 444 of 1966.

Appeal by special leave from the judgment and order dated October 9, 1963 of the Allahabad High Court in F.A.F.O. No. 268 o.f 1957.

N. D. Karkhanis and 0. P. Rana, for the appellant.

R. Gopalakrishnan, for respondents Nos. l(i), to (iv), (vii) and (xi).

The Judgment of the Court was delivered by··

Shah, J. One Radhey Lal instituted Suit No. 4 of 1950 in the Court of the Civil Judge, Jaunpur, ·for declaration that he was the "owner in possession" of the estate left by Dhan Devi. To that suit Ram Krishan Burman was impleaded as party-defen-dant. This suit was decreed ex parte. Ram Krishan then filed Suit No. 14 of 1956 in the Court of the Civil Judge, Jaunpur, against the heirs of Radhey Lal (who had died since the passing of the decree in Slrit No. 4 of 1950), claiming tha: he was "appointed an heir by Dhan Devi" of properties described in lists B, J & in the plaint, that the dispute concerning the inherit-ance to the estate left by Dhan Devi was settled between him and Radhey Lal, that Radhey Lal admitted his title to the properties in Lists B, J & and it was agreed that in the properties in Lists A, .B, J & Radhey Lal had 11/16th share and that he had 5/16th share, that memorandum was drawn up in that behalf, and that Radhey Lal represented to him that cor. :pro-mise decree will be obtained in that suit, but thereafter taking advantage of his ignorance Radhey Lal obtained decree ex partP. The following substantive reliefs were claimed by the plaintifi :

"(a) that declaratory decree in favour of the plaintiff and against the defendants declaring the plain-tiff as the owner of the properties in Lists, A, B, J & be passed;

(b) in case in the opinion of the Court prayer (a)

cannot be granted, then, alternatively, declaration declaring the plaintiff as the owner of properties in B, J and being the stridhana of Rani Dhan Dai Kaur be

issued, decree in Suit No. 4 of 1950 has no adverse effect · on the rights of the plaintiff;"

The plaintiff valued the properties in dispute at Rs. 5,99,503/6/3, but on the footing that he had claimed mere declaration paid Rs. 18/12/0 as court-fees as in claim under Sch. II cl. 17(iii) of the Court-Fees Act.

The Inspector of Stamps reported to the Civil Judge that in his view the case fell within s. 7(vi-A) as incorporated by the U.P. State Legislature, and court-fee was chargeable according to the value of the subject-matter, and the plaintiff was liable to pay Rs. 3,528/8/- as court-fee on the plaint. The Civil Judge order-ed the plaintiff to amend the plaint and to pay the court-fee re-maining due.

The plaintiff appealed against tht order of the Civ;J Judge to the High Court of Allahabarl. The High Court held that the court-fee paid by the praintiff was proper, and set aside the order holding that the case did not fall within s. (iv-A) of the Court-Fees Act. The State of U.P. has appealed to this Court with special leave.

Section 7 (iv-A) of the Court-Fees Act as enacted by the U.P. State Legislature, insofar as it is relevant, reads :

"In suits for or involving cancellation of or adjudging void or voidable decree for money or other property having market value, or an instrument securing money or other property having such value.

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

There is no dispute that the plaintiff claimed declaration adjudg-ing void the decree in Suit No. 4 of 1950 declaring Radhey Lal to be the "owner in possession of the estate of Dhan Devi". The plaintiff by his plaint had claimed two declarations in the alter-native, and prima facie, the plaint was of the description in Sch. II Cl. l 7(iii) of the Court-Fees Act. But counsel for the State of U.P. contends that the reliefs claimed fell within s. 7(iv-A) of the Court-Fees Act. Counsel says that the expression "decree f6c money or other property" does not mean decree awarding money or other property, but decree concerning or relating to mc,-,ey or other ;ircperty, and he says that where the Court dec-lares the plaintiff's title to money or property simpliciter, the decree is one for money or for other pro~rty. We are unable to

.A agree with that contention. The expression "for" occurs. twice in the opening part of the clause. Evidently the expression "for''. when it occurs for the first time means "for obtaining decree ordering (payment or revovery of)". The expression "for" also occurs in several other chiuses of the Court-Fees Act. In s. 7 of the Court-Fees Act as amended by the U.P. Legislature which drals with computation of court-fee payable in certain classes of suits, following clauses occur :

"(i) In suits for money

(ii) (a) In suits for maintenance and annuities or other sums payable periodically :-

(b) In suits for reduction or enhancement of main-tenance and annuities or other sums payable periodic.al-ly-

(iii) In suits for movable property other than money, where the subject-matter has marke_t value-

(iv) In suits :-

(b) for accounts

(iv) B. In suits~

(a) for right to some . . to arise out of land.

(iv) C. Tn suits-

(a) for the restriction of conjugal rights, (b) for establishing or annulling or dissolving marriage, ·

( c) for establishing right to the custody or guar-dianship of any person.

( v) A. In suits for possession .

(v) B. In suits for possession between rival tenants.

(vi) A. In suits for partition. (vii) In suits for th~ interest of an assignee of land-revenue.

(ix) In suits against mortgage for the recovery of the property mortgaged.

(x) In suits for specific performance-

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

( a) for the delivery by tenant of the counter-part of lease,

( c) for the delivery by landlord of lease, (cc) for the recovery of immovable property from tenant,

(f) for abatement of rent,

(,g) fnr commutation of rent,

In all these clauses the expression "for" is used as meaning "for obtaining decree ordering (payment or recovery of)". If the expression "for" occurring for the first time in s. 7 (iv-A) means in the context in which it occurs obtaining decree for cancella-tion of or adjudging void or voidable decree, it would be diffi-cult to hold that the expression "decree for money or other pro-perty" has wider connotation and means decree which ccn-cerns or relates to money or other property.

decree for declaration of title to money or other property is not decree for money or other property. In our judgment the expression "decree for money or other property" means only decree for reco\ery of money or other property. It does not include decree concerning title to money or other property. It was urged that in any event the plaintiff had sued for ad-judging void or voidable an "instrument" securing money or other property having market value. But decree in invitum is not an instrument securing money or other property : such decree is record of the formal adjudication of the Court relating to right claimed by party to suit. It does not by its own force secure money or property. consent decree in certain cases may be regarded as an instrument securing money or other property, wHere the decree proceeds upon contract which had that effect, but that is only because consent decree is record of the con-tract between the parties to which is superadded the seal of the Court. In our view the High Court was right in holding that the court-fee paid on the plaint was proper. It may be pointed out that the plaintiff had claimed nothing more than declaration with regard to certain properties.

We are also unable to accept the contention of counsel for the State that the relief for declaration was mere device or subter-fuge intended to conceal the true purport of the claiffi. It is· evf.' dent that the District Magistrate, Jaunpur was in possession of the property in dispute and if the civil court declared the title of the plaintiff, he would be entitled to secure recognition of his rights.

Before parting with the case we must observe that we have felt greatly perturbed by the course which this litigation has taken. The suit was filed in 1956. And after 13 years only the question of court-fee payable on the plaint is decided. In the meanwhile the original plaintiff died. The delay .is largely attributable to the rigid attitude of the State which has by insisting upon com-paratively small claim, held up the proceedings for all these long years by raising contentions which had no merit. We trust the Court of First Instance will take up this suit for hearing with the least practicable delay and dispose of the suit according to law. The State to pay in this appeal the costs of the heirs of the original plaintiff.

Appeal dismissed.