SHAMSHER SINGH versus RAJINDER PRASHAD & ORS.

SHAMSHER SINGH RAJINDER PRASHAD '· & ORS.

August 3, 1973

[D: G. PALEKAR AND A. ALAGIRISWAMI, JJ.]

llindu Law-Joitu Hindu fa111ily-Wliethcr sons are liable for the dtbts of 1he father incurred l¥ithout consideraJlon and family necessity-Court Fees A.ct .I'. 7(fr)(7)-/ls &eopr. ·

'rherc was mortgage of prope-rty in favour of the appellant for sun1 .of Rs. 15,000/-. The mortgagee filed suit and obtained decree. When he 1ricd to take out execution proceedings for the sale of the mortgaged property, J·cspondents 1 and 2 filed suit for declaration that tho mortgage executed by their father was null and void as against them. a& the property was joint ·Hindu family property and the mortgage had been c.ffcctcd without considera· tion and family necessity. The ·plaintiffs (Respondent 1 and 2) paid Court Fee of Rs. 19.50 and th! v~ue of the suit for purposes of jurisdiction was -given "Ii R,. 16,000 /·.

preliminary objection was raised by the Appellant that the suit W'!S not properly valued for purposes of Court Fee and jurisdiction. The Subordinate Juclge held that although the case is covered by S.7(iv)(c) of the Court Fee ,\ct; the proviso to that Section applied and directed the plaintiffs to pay Court· Fee on the value of ·RB. 16,000/-. Thereafter, the Court Fee not having been paid, the plaint was rejected. The plaintiff appealed before the High Court against that dedsion. ·The High Court held against the defendants taking the view that the plaintiffs were not at all bound by the mortgage in dispute since ~t 'vas joint family property. The finit defendant appealed before this Court.

In this Court, preliminary objection were raised that the present appeal is 11ot competent and secondly, the plaintiffs were not bound by the mortgage of the joint Hindu family property where there was no legal necessity to ex~ ecutc the mortgage. Allowing the appea),

HELD (i) In the present case, the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to decree under S.2(ii) and there is right to appeal op~n to the plaintiff. ' Furthermore, in case in which ibis C-ourt has granted special leave, the question whether an appeal lies or not, .Joes not arise. Even otherwise, second appeal would lie under S.100 of the C.P.C. on the ground that the decision of the !st appellate Court on the interpretation of S.7(iv)(c) is question of law. There is thus no merit in the preliminary objection. [324E-G]

Vasu v. Chakki Mani (A.l.R. 1962 Kera/a 84 refe"ed to). Ratl11111varma· rct/a v. Smt. Vim/a, A.l.R. 1961 S.C. 1299 referred ·to and distinguished. ·

hi) While the Court Fee payable on plaint is ccrtaloly to be dcddcd on 1he basis of the allegations and the prayer in the plaint and the question whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the Court at that stage, the Court in deciding the question of Court Fee, should look into the allegations in the plaint to 1ec what the substantive relief that is asked for. Mere cleverness in drafting the plaint will not be allowed to stand in the way of the Court looking at the 'Substance of the relief asked for. In the present case. the relief asked for i~ on the basis that the property in dispute is joint Hindu family property and there was no legal necessity to a:ecute the mortgage. It is now well s~ttled that under Hindu Law, if the manager of joint family is the father and the other members are sons, the father may, incur debt, so long as it is not for imm')ral purposes and the joint family estate is open to be taken in execution <>f proceedings upon decree for the payment of the debt. (324G-325B]

Fakir Chand v. Harnam Kaur 1967 1 S.C.R. 68, referred to.

SJi.\,\!SllER SINGH v. RAJINDER PRASHAD (Alagiriswami, J.)

(iii 1 In the present case, when the plaintiffs sued for declaration th;,it the decree obtained by the appellant against their father was not binding on them, they were really asking for setting aside the dci;ree or for the consequent<il relief of injunction restraining the decree holder from executing the decree against the mortgaged property. [3258-Cj

In deciding whether suit is purely declaratory, the substance and nl1t merely the language or the form or relief claimed should be considered. [325GJ

Ztb-uf·iYisa v. Din kfolianunad, -\.LR. l94t Lahore 97 referred to

(i,-) ln 4 suit by the son for declarJ.tion that the mortgage decree obtain-ed against his father is not binding upon him. it is essential for the son to ask for setting aside the decree as consequence of the declaration clai1ned and to pay ad i:t./orem Court fee under s. 7(iv)(c). decree against the father is good <lecree against the son and unless the decree is set aside. it will reroai11 executable against the son and it is essential for the son to ask to set aside the decree.

Further, in suit by the son for declaration that decree against th~ father, does not affect his interest in the family property, conscquental relief is involved and ad vcloren1 Court fee is necessary, [326F-GJ

Prit/11·i Raj v. D. C. &Iii, A.l.R. 1945 Lahore 13, and Vinayakrao ».

Mankw1war Bai, A.J.R. 1943 Nagpur 70, referred to

The Judgment of the Court was delivered by

ALAG!RlSWAMI, J.-This appeal raises the question of the court fee payable in the suit filed by the 1st respondent and his minor brother the 2nd respondent against their father the 3rd respondent and the aliencc from him the appellant.

On 13-7-1962 the father executed mortgage deed in favour of the appellant of property of which he claimed to be the sole owner for sum of Rs. 15,000/-. The mortgagee, the appellant filed suit 011 the foot of this mortgage and obtained decree. When be tried to take out execution proceedings for the sale of the mortgaged pro-perty, respondents 1 'lllld 2 filed suit for declaration that the mortg-·age executed by their father in favour of the appellant is null ~nd void and ineffectual as against them as the property was joint Hindu family proper1iy, and the mortgage had been effected without considera-tion &nd family necessity. On this plaint the plaintiffs paid fixed court fee of Rs. 19.50 and the value of the suit for purposes of jurisdic-tion was given as Rs. 16.000. preliminary objection having been raised by the appellant that the suit was not properly valued for purposes '!f ~ourt fees and jurisdiction, the Subordinate Judge tried it as pre-li~mary issue. He held that although the case is covered by section 7(1v)(c) of the Court Fees Act, the proviso to that section applied and directed the plaintiffs to pay court fee on the value of Rs. 16 000 which · wa~ tl~e ~~ount at which the plaintiffs valued the suit for the purposes ?f 1unsd1~1ton. .1'.te court fee not h~ving been paid the plalnt was re-JCCtcd. 1 he plamttffs thereupon earned the matter up on appeal before the High Court of Punjab _& Haryana. Before that Court the plain· tills did not seriomly contest the position that the consequential relief of setting aside the decree within the meaning of Section 7(iv)(c) of the Court Fees Act was inherent in the declaration which was claimed with regard to the decree.· But taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree, the High

Court held that there wu no consequential relief involved since neither the decree nor the alirnation binds the plaintiffs in any l:illlllDCC· The l st defendant in the suit has, therefore, filed this appeal.

Before us preliminary objection was raised based on the observa-liOWJ of this Court in Rathnavaramaraja v. Smt. Vim/a ( [1]) that the present appeal is not competent. In that cue this Court observed that whether proper court-fee is paid on plaint is primarily question bet-ween the plaintiff and the State and that the defendants who maiy believe and even honestly that proper court-fee has not been paid by the plain-tiff has still no right to move the superior courts by appeal or in revision apinst. the order adjudging payment of court·fee payable on the plaint. But the observations must be ·understood in the background of tlte facts of that case. This Court was there dealing with an application for re-vision filed before the High Court under s. 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction whch the court does not possess or on the ground that the Court has acted ille-gally or with material irregularity in the exercise of its jurisdiction, and the provisions of ss. 12 and 19 of the Madras Court Fees Act do not ann the defendant with weapon of technicality to obstruct the pro· gress of the suit by approaching the High Court in revision against an order determining the court fee payable. The ratio of that decision w33 that no revision on question of court fee lay where no question of .i'lrisdiction was involved. This decision was corroctly interpreted by the Kerala High Court in Vasu v. Chakki Mani(') where it was pointed out that no revision will lie against the decision on the question of adequacy of court-fee at the instance of the defendant ...... unless the question of court fee involves also the question of jurisdiction of the court. In the present case the plaint was rejected under Order 7, Rule 11 of the CP.C. Such an order amounts to decree under section 2(2) and there is right of appeal open to the plaintiff. Furthermore, in case in which this Court has granted special leave the question whe-ther an appeal lies or not does not arise. Even otherwise second appeal would lie under section 100 of the C.P. C. on the ground that the decision of the 1st Appellate Court on the interpretation of s. 7(iv) ( c) is question of law. There is thus no merit in the preliminary objection.

As regards the main question that wises for decision it appears to us that while tho court·fee payable on plaint is certainly to he decided on tho basis of the allegations and the prayer in the plaint and the ques-tion whether the plaintiff's suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage. the cowt in deciding the question of court-fee should look into the allegations in the plaint to sec wlylt is the substantive relief that is asked for. Mero astuteneliS in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In this case the relief asked for is on the biiis that the property in dli· puto is joint Hindu family property and there was no Ieaal neCCSlity

(I) A. I. R. 1961 S. C. 1299.

(2) A. I. It. 1962 Kerala 84.

to execute the mortgage. It is now well settled that under Hindu Law if the manager of joint family is the tatker and the other members are the sons the father may by incurring debt so long as it is not for an immoral purpose Jay the joint family estate open to be taken in execv-tion proceedings upon decree for the p~ment of the debt not only where it is an unsecured debt and simple money decree for the del>t JI but also to mortgage debt which the tather is personally liablo to pay ·and to decree for the recovery of the mongage debt by the sale of the property even where the mortga&e is not for legal necessity or for payment of antecedent debt (Faqir Chand v. Hamam Kaur('). Cons;:quently when the plaintiffs sued for declaration that the Jecrec obtained by the appellant against their father was not bindin& on them they were really asking either for settin& aside the decree or for the (' consequential relief of injunction restraming the decree holder from executing the decree against the mortga~ed property as he was entitled to do. This aspect is brought out in decision of the Full Bench of tho Lahore High Court in Zeb·ul-Nisa v. Din Mohammad(') where it was held that :

''The mere fact that the relief as stated in the prayer clause is expressed in declaratory form does not necessaricy show that th~ suit is for mere declaration and no more. If the relief so disclosed is declaration pure and simple and involves no othj:r relief, the suit would fall under Art.17(iii)."

In tliat care the plaintiff had sued for twofold declaration: (i) that the property d~scribed in the plaint was waqf, and (ii) that certain alienations thereof by the mutwalli and his brother were null and void and were ineffectual against the waqf property. It was held that the second :>art of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the reiief, the relief claimed in the case could be treated as declaration with "consequential relief." .... It was substantive one in the shape of setting aside of alienations requiring ad valorem court· fee on the value of the subject matter of the sale, and even if the relief sought forfell w!thin the purview of s. 7(iv)(c) of the plaintiffs in view of ss. 8 and 9, Suits Valuation Act, having already fixed the value of the ref1ef in the plaint for purposes of jurisdiction were hound to Ji~ ihe same value for purposes of court-fee. It was also pointed out that in deciding whether suit is purely declaratory, the substance and not merely the language or the form of the relief claimed should be con· sidered. The court also observed :

"It seelllll to me that neither the answer to the question whether the plaintiff is or is not party to the decr~ilr the deed sought to be declared as null and void, nor to the ques-tion whether the declaration sought does or docs not fall within the purview of s. 42, Specific Reli~f. Act. furnishes satisfac· tory or conclusive test for detenmnmg the court fee payable

--Cl) [1967) (I) S.C.R. 68.

{2) A. I. R. [1941] Labcre 97.

in the suit of this description. When the plaintiff is party to the decree or deed, the dcclaratony relief, ifgranted, neces-sarily relieves the plaintiff of his obligations under the de-LTCe or the deed and, h~nce it seems to have tieen held in such cases, that the declaration involves consequential relief. In cases where the plaintiff is not party to the decree· or the deed, the declaratory relief docs not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not party to the deed or the de-cree is nevertheless bound thereby. For instance, when sale or mortgage of joint family property is effected by manager of joint Hindu family. the alienation is binding on the other members of the family,.{ even if they are not parties to it) until and unless it is set aside. Similarly, decree passed against the manager will be binding on the other members of the family. If therefore coparcener sues for declaration that such an alienation or decree is null and void, the dec!ara· tion must I think be held to include consequential relief in the same maiy as in those cases in which the plantiff is himself party to the alienation or the decree, which is sought to be declared null and void. The case dealt with in AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by mutwalli of waqf property would also ap-pear to stand on similar footing. In the case of waqf pro-perty, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore person sues to get such an alienation declared null and void, he can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include consequential relief."

The decision of the Lahore High C.Ourt in Prithvi Raj v. D. c. Ra/Ii(') is exactly in point. It was held that in suit by the son for de-claration that the mortgage decree obtained against his father was not binding upon him it is essential for the son to ask for setting aside of the decree as consequence of the declaration claimed and to pay ad mlorem court fee under s. 7(iv)(c). It was pointed out that decree against the father is good decree against the son and unless the decree is set aside it would remain executabfe against the son, and it was essential for the son to ask for setting aside the decree. In Vinayakrao v. Mankunwarbai([2 ]) it was held that in suit by tl1e son for declaration that ~decree against the father docs not affect his in-terests in the family property, consequential relief is involved and ad valorem court fee would he necessary.

We should now refer to certain decisions relied upon by the res-pondents. We do not consider that the decision of the learned Single Judge of the Madras High Court in Venkata Ramani v. Maravana-swami( [3 ]) lays down the correct law. It proceeds on the basis that

(I I A.1.R. 1945 .Lnhorc 13. (21 A.J.R. 1943 Nngrur 70.' (.1) A.LR. 1925 rvt<1dras 713.

SHAMSHER SINGH v. RAJINDER PRASHAD (Alagiriswami, !.) 327

the plaintiffs not being parties to the document they were not bound to get rid of it by having it actually cancelled, but it ig1iores me effect of Hindu Law in respect of mortgage decree obtained against the father. As pointed out by the Lahore High Court in such cases in suing for declaration that the decree is not binding on him the son is really asking for cancellation of the decree. This aspect does not seem to have been taken into consideration by the learned Single Judge. The de-B cision of learned Single Judge of the Nagpur Hign Court in Pandu-rang Mangat v. Bhojalu Usanna([1]) suffers from the same error. Though it refers to the decision of the Full Bench of the Lahore High Court as well as the same High Court's decision in Prithvi Raj v. D. C. Ralli(') it does not seek to distinguish them for holding otherwise. The learned Judge gi".es no reason whether and if so why he dissents from the view taken in the latter case. ,This decision also suffers from the learned Judge's misapprehension that there is difference between simple moneiy decree and mortgage decree obtained against Hindu father when it is questioned by the son and its view that in execution of simple money decree the entire joint family property, in-clusive of the interest of the sons, is liable to be sold in execution of the decree, but that in the case of mortgage decree it is not necessary for son to allege or prove that the debt was incurred for an illegal or an immoral purpose and he can succeed if it is proved that the mortgage was not for legal necessity or for the payment of antecedent debt. We have already referred to the decision of the Court on this point. We must also hold in view of the reasons already set forth that the de-cision of the Allahabad High Court in Jshwar Dayal v. Amba Prasad(') is not good law. As regards the. decision of the Full Bench of the Allahabad High Court in Bishan Sarup v. Musa Mal(') there is noth· ing to show whether the alienation was made by the manager of joint Hindu family and therefore the decision is rtot in point. .

We, therefore, hold that the decision of the High Court was not correct and allow this appeal with costs. The plaintiffs would be given month's time for paying the necessar;y court fee.

Appeal allowed.

(1) A.l.R. 1949 Nagpur 37.

(2) A.I.R. 1945 Lahore 13.

(3) A.I. R. 1935 Allahabad 667.

(4) A.l.R. 1935 Allahabad. 817.