Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
RAM KRISHAN BURMAN (DEAD) BY L. RS. & ORS.
DATE OF JUDGMENT:
26/09/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.
CITATION:
1971 AIR 87 1970 SCR (2) 588
1970 SCC (1) 80
ACT:
Court Fees Act, 1870 (7 of 1870), s. 7 (iv-A) inserted
by U.P. Legislature--A decree for a mere declaration of
title to property whether a decree ’for money or other
property’ or an instrument securing money or other property’
within meaning of section--Undesirability of prolonging
litigation by raising pleas without merit.
HEADNOTE:
As the reversioner of a Hindu widow’s estate one ’R’
instituted suit No. 4 of 1950 in the court of the Civil
Judge Jaunpur, for a declaration that he was the ’owner in
possession’ of the said estate. ’B’ who claimed to be an
heir of the widow was impleaded as a party defendant.
The suit was decreed ex-parte. ’B’ then filed suit No. 14 of
1956 in the same court against the heirs of ’R’ who died
after the, passing of the decree in his suit. In suit No.,
14 of 1956 ’B’ claimed that as heir of the said widow he was
entitled to her stridhuna properties. He averred that in
suit No. 4 of 1950 ’R’ had arrived at an oral compromise
with him promising him 5/16th share in the, whole estate.;
that the oral compromise was later reduced into a
memorandum; that ’R’ had represented to him that a
compromise decree would be obtained in the suit; and that
taking advantage 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 suit No. 4 of 1950
having no adverse effect on his rights. On the footing that
he had claimed a mere declaration ’B’ paid Rs. 18/12/- as
court-fees as in a claim under Sch. II cl. 17(iii) of the
Court Fees Act. The Inspector of Stamps, however,
reported to the Civil Judge that in his view the case fell
within s. 7(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 Judge
ordered the plaintiff to amend the plaint and pay the court
fee remaining due. In appeal the High Court decided in
favour of the respondent. The State of U.P. appealed. It
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was contended on behalf of the appellant: (i) that the
plaintiff sought a declaration adjudging void the decree in
suit No. 4 of 1950 which was a decree "for money or other
property" within the meaning of s. 7(iv-A) since that
expression must include a decree concerning or relating to
money or other property, (ii) that in any case the decree in
suit No. 4 was an ’instrument’ securing money or other
property having market value and s. 7(iv-A) was therefore
attracted; (iii) that the relief for declaration was a mere
device intended to conceal the true purport of the claim.
HELD: The appeal must be dismissed.
(X) A decree for declaration of title to money or other
property is not a decree for money or property. The
expression "decree for money or other property" means only a
decree for recovery of money or other property. It does not
include a decree concerning title to money or other
property. [592 E-F]
(ii) A decree ad invitum is not an instrument securing
money or other property: such a decree is a record of the
formal adjudication of the
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court relating to a right claimed by a party to the suit.
It does not by its own force secure money or property. [592
G]
(iii) The relief for declaration was not a mere device
or subterfuge intended to conceal the true purport of the
claim for the property in dispute was in the possession of
the District Magistrate, and if the Civil Court declared the
plaintiff’s title he would be entitled to secure recognition
of his rights by the District Magistrate. [593 A-B]
JUDGMENT:
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 of 1957.
N.D. Karkhanis and O.P. Rana, for the appellant.
R. Gcpalakrishnan, for respondents Nos. 1 (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 a declaration
that he was the "owner in possession" of the estate left by
Dhan Devi. To that suit Ram Krishan Burman was impleaded as
a party-defendant. 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 Suit No. 4 of
1950), claiming that he was "appointed an heir by Dhan Devi"
of properties described in lists B, J & D in the plaint,
that the dispute concerning the inheritance 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 & D and it was agreed that in the properties in
Lists A, B, J & D Radhey Lal had 11/16th share and that he
had 5/16th share, that a memorandum was drawn up in that
behalf, and that Radhey Lal represented to him that a
compromise decree will be obtained in that suit, but
thereafter taking advantage of his ignorance Radhey Lal
obtained a decree ex parte. The following substantive
reliefs were claimed by the plaintiff:
"(a) that a declaratory decree in
favour of the plaintiff and against the
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defendants declaring the plaintiff as the
owner of the properties in Lists, A, B, J & D
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 D being the stridhana of Rani Dhan Dai
Kaur be
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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 a mere
declaration paid Rs. 18/12/0 as. court-fees as in a claim
under Sch. II el. 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 ordered the plaintiff to amend
the plaint and to pay the court-fee remaining due.
The plaintiff appealed against the order of the Civil
Judge to the High Court of Allahabad. The High Court held
that the court-fee paid by the plaintiff 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 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
There is no dispute that the plaintiff claimed a declaration
adjudging void the decree in Suit No. 4 of 1950 declaring
Radhey Lal box be the "owner in possession of the estate of
Dhan Devi". The plaintiff by his plaint had claimed two
declarations in the alternative, and prima facie, the plaint
was of the description in Sch. II CL 17(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 for money or
other property" does not mean a decree awarding money or
other property, but a decree concerning or relating to money
or other property, and he says that where the Court declares
the plaintiff’s title to money or property simpliciter,
the decree is one for money or for other property. We are
unable to
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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 a decree ordering (payment or recovery of)".
The expression "for" also occurs in several other clauses of
the Court-Fees Act. In s. 7 of the Court-Fees Act as
amended by the U.P. Legislature which deals with computation
of court-fee payable in certain classes of suits, following
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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 maintenance
and annuities or other sums payable periodically-
(iii) In suits for movable property other than money,
where the subject-matter has a market value--
(iv) In suits
(b) for accounts
(iv) B. In suits--
(a)for a right to some .... to arise out of land.
(iv) C. In suits--
(a) for the restriction of conjugal fights,
(b)for establishing or annulling or dissolving a marriage,
(c) for establishing a fight to the custody or guardianship
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 the interest of an assignee of land:’
revenue.
(ix) In suits against a mortgage for the recovery of the
property mortgaged.
(x) In suits for specific performance--
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(xi) In the following suits between landlord and
tenant--
(a)for the delivery by a tenant of the counter-part lease,
(c) for the delivery by a landlord of a lease,
(cc) for the recovery of immovable property from a
tenant.
(f) for abatement of rent,
(g) for commutation of rent,
In all these clauses the expression "for" is used as meaning
"for obtaining a 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 a
decree for cancellation of or adjudging void or voidable a
decree, it would be difficult to hold that the expression
"decree for money or other property" has a wider connotation
and means a decree which concerns or relates to money or
other property.
A decree for declaration of title to money or other
property is not a decree for money or other property. In
our judgment the expression "decree for money or other
property" means only a decree for recovery of money or other
property. It does not include a decree concerning title to
money or other property.
It was urged that in any event the plaintiff had sued
for adjudging void or voidable an "instrument" securing
money or other property having market value. But a decree
in invited is not an instrument securing money or other
property: such a decree is a record of the formal
adjudication of the Court relating to a right claimed by a
party to a suit. It does not by its own force secure money
or property. A consent decree in certain cases may be
regarded as an instrument securing money or other property,
where the decree proceeds upon a contract which had that
effect, but that is only because a consent decree is a
record of the contract 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 a declaration with regard to
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certain properties.
593
We are also unable to accept the contention of counsel
for the State that the relief for declaration was a mere
device or subterfuge intended to conceal the true purport
of the claim. It iS evident 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 a
comparatively 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.
G.C. Appeal dismissed.
594