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2008 DIGILAW 1485 (PNJ)

Bijender Singh v. Chand Singh

2008-08-28

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - Present revision petition is directed against the order passed by the learned Civil Judge (Junior Division), Rohtak allowing an application moved by the defendant-respondents under Order 7 Rule 11 of the Code of Civil Procedure (for short the Code). 2. Plaintiffs filed a suit seeking a decree for possession by way of partition and permanent injunction on the allegations that Manohar Lal son of Hazari was the absolute owner of the property in question which was earlier part of Rect. No. 36 Killa No. 17/1. He died on 1.7.1998 and his estate was inherited and succeeded by his sons and daughters. The petitioner claims that he inherited the said property to the extent of 1/28th share. Thus, all the co-sharers are in joint possession. 3. A suit was also filed claiming that Chand Singh defendant No. 1 illegally suffered a judgment and decree dated 21.8.1982 in a suit titled Chand Singh v. Manohar Lal on which basis he further transferred the suit property to defendant No. 4 vide registered sale deed No. 3245 dated 28.8.2003. It was further transferred to defendants No. 5 to 7 vide sale deed Nos. 2471 and 2472 both dated 3.6.2005. The plaintiffs have challenged the judgment and decree and alleged sale deeds dated 23.3.2003 and 3.6.2005, as illegal, null and void on the plea that no family settlement took place in the year 1982. It was also pleaded that the decree dated 21.8.1982 is void, illegal and non-est for want of registration. It was claimed that Chand Singh had no pre-existing right in the suit property, nor the summons were issued to Manohar Lal in respect of the suit. The defendant-respondents moved an application for rejection of the plaint for want of proper court fee. It was pleaded that the consideration of sale deed was Rs. 80,00/- and therefore they were liable to pay ad valorem court fee. 4. It was the contention of the defendant-respondents that by way of present plaint there is challenge to the sale deeds dated 28.8.2003 and 3.6.2005 and therefore the plaintiffs were required to pay ad valorem court fee. It was pleaded that the consideration of sale deed was Rs. 80,00/- and therefore they were liable to pay ad valorem court fee. 4. It was the contention of the defendant-respondents that by way of present plaint there is challenge to the sale deeds dated 28.8.2003 and 3.6.2005 and therefore the plaintiffs were required to pay ad valorem court fee. The petitioner, on the other hand claims that no ad valorem court fee was required as the basic relief claimed by the petitioner is for a declaration and cancellation of the sale deed and setting aside of decree is a consequential relief arising therefrom. 5. Learned trial court came to the conclusion that the petitioner has claimed share in the suit property and has also claimed consequential relief of permanent injunction in the said suit and also challenged the decree and sale deed executed in favour of the defendants No. 1 to 7 as null and void and not binding upon his rights. The court came to the conclusion that the main relief of possession by partition could not be granted until and unless decree and the sale deeds are cancelled. Thus, the court came to the conclusion that the plaintiffs will have to first ask for declaration that the decree is not binding upon them and only then they can seek relief of possession by way of partition. 6. Thus, it was held that the suit of the plaintiff is governed under section 7(iv)(c) of the Court Fee Act. Reliance was placed on the judgment in the case of Vishwa Nath alias Bholu v. Shrimati Sita Bai and others, 1952 (Vol. (LIV) PLR 331). Reliance was also placed on the judgment of this court in the case of Dr. Ashok Kumar Goyal v. Arya Mittar and Others, 2007(2) CCC 411. Thus, the application moved by the defendants was allowed and the plaintiffs were given time to make good the deficiency in court fee within 7 days from the date of passing of the order. 7. Learned counsel for the petitioner has challenged the order on the plea that the relief claimed in the suit is for possession by way of partition in view of the fact that the plaintiffs had 1/28th share each in the suit property. 7. Learned counsel for the petitioner has challenged the order on the plea that the relief claimed in the suit is for possession by way of partition in view of the fact that the plaintiffs had 1/28th share each in the suit property. He further submitted that consequential relief of injunction has been prayed and thus, the contention of the learned counsel for the petitioner is that as no relief of possession or cancellation of sale deeds and decree has been claimed as a main relief, the court fee as fixed was sufficient court fee and no ad valorem court fee was required to be fixed. 8. In support of this contention learned counsel for the petitioner has placed reliance on the Full Bench judgment of this court in the case of Niranjan Kaur v. Nirbigan Kaur, 1981 PLJ 423, wherein Honble Division Bench of this court has been pleased to lay down that the court has to look into the allegations made in the plaint to find out substantive relief asked for. If the main relief is cancellation of deed and declaration, if any, which is only a surplusage, the case would not be covered under section 7(iv)(c) of the Act and the only provision applicable is Article 1 Schedule 1 of the Act but if the main and substantive relief is that of declaration and consequential relief should be ancillary thereto and if no consequential relief is claimed or could be claimed in the suit, the provisions of Section 7(iv)(c) would not be applicable. 9. However, this judgment does not support the case of the petitioner. As already discussed, in the present case the main relief claimed by the petitioner is of cancellation of decree and sale deed executed in favour of the defendants. 10. The answer to this contention of the learned counsel for the petitioner stands answered by the Honble Supreme Court in the case of Shamsher Singh v. Rajinder Prashad and others, AIR 1973 SC 2384, wherein Honble Supreme Court has been pleased to lay down as under : "4. 10. The answer to this contention of the learned counsel for the petitioner stands answered by the Honble Supreme Court in the case of Shamsher Singh v. Rajinder Prashad and others, AIR 1973 SC 2384, wherein Honble Supreme Court has been pleased to lay down as under : "4. As regards the main question that arises for decision it appears to us that while the court fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiffs 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 see what is the substantive relief that is asked for. Mere astuteness 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 basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faquir Chand v. Harnam Kaur, (1967)1 SCR 68 : (AIR 1966 SC 727). Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do. Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do. This aspect is brought out in a decision of the Full Bench of the Lahore High Court, in Mt. Zeb-ul-Nisa v. Din Mohammad, AIR 1941 Lah 97 (FB) where it was held that : "The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17(iii)". In that case the plaintiff had sued for a twofold declaration : (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwali and his brother were null and void and were ineffectual against the wagf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienation and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not he said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a "consequential relief". It was substantive one in the shape of setting aside of alienation requiring ad valorem court fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of Section 7(iv)(c) the plaintiffs in view of Sections 8 and 9, Suits Valuation Act, having already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court fee. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The court also observed : "It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of Section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable in the suit of this description. When the plaintiff is a party to the decree ordered, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases here the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff through not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienations binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. If therefore a 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 a consequential relief." The decision of the Lahore High Court in Prithvi Raj v. D.C. Ralli, AIR 1945 Lah 13 is exactly in point. It was held that in a suit by the son for a declaration 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 a consequence of the declaration claimed and to pay ad valorem court fee under Section 7(iv)(c). It was held that in a suit by the son for a declaration 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 a consequence of the declaration claimed and to pay ad valorem court fee under Section 7(iv)(c). It was pointed out that a decree against the father is a good decree against the son and unless the decree is set aside it would remain executable against the son and it was essential for the son to ask for setting aside the decree. In Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70 it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court fee would be necessary." 11. It is a case where the plaint has been drafted to look as if the relief is of declaration whereas in fact the relief claimed is for the cancellation of decree and sale deeds. The learned trial court has rightly observed that in the absence of cancellation of decree and the sale deed the relief claimed by the petitioner for possession by way of partition cannot be granted. No ground is made out which may call for interference in the impugned order by this court. Dismissed. However, the petitioner is granted one months time from today to make good the deficiency in court fee. .