Full Judgment Text
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PETITIONER:
SHAMSHER SINGH
Vs.
RESPONDENT:
RAJINDER PRASHAD & ORS.
DATE OF JUDGMENT03/08/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION:
1973 AIR 2384 1974 SCR (1) 322
1973 SCC (2) 524
ACT:
Hindu Law-Joint Hindu family-Whether sons are liable for the
debts of the father incurred without consideration and
family necessity-Court Fees Act S. 7(iv)(7)-Its scope.
HEADNOTE:
There was a mortgage of a property in favour of the
appellant for a sum of Rs. 15,000/-. The mortgagee filed a
suit and obtained a decree. When he tried to take out
execution proceedings for the sale of the mortgaged
property, respondents 1 and 2 filed a suit for a
declaration that the mortgage executed by their father was
null and void as against them. as the property was a joint
Hindu family property and the mortgage had been effected
without consideration and family necessity. The plaintiffs
(Respondent 1 and 2) paid a Court Fee of Rs. 19.50 and the
value of the suit for purposes of jurisdiction was given as
Rs. 16,000/-.
A preliminary objection was raised by the Appellant that the
suit was not properly valued for purposes of Court Fee and
jurisdiction. The Subordinate Judge held that although the
case is ’covered by S.7(iv)(c) of the Court Fee Act, the
proviso to that Section applied and directed the plaintiffs
to pay Court.Fee on the value of Rs. 16,000/-. Thereafter,
the Court Fee not having been paid, the plaint was rejected.
The plaintiff appealed before the High Court against that
decision. The High Court held against the defendants taking
the view that the plaintiffs were not at all bound by the
mortgage in dispute since it was a joint family property.
The first defendant appealed before this Court.
In this Court, preliminary objection were raised that the
present appeal is not competent and secondly, the plaintiffs
were not bound by the mortgage ,of the joint Hindu family
property where there was no legal necessity to execute the
mortgage. Allowing the appeal,
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 a
decree under S.2(ii) and there is a right to appeal open to
the plaintiff. Furthermore, in a case in which. this Court
has granted special leave, the question whether an appeal
lies or not, does not arise. Even otherwise, a second
appeal would lie under S.100 of the C.P.C. on the ground
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that the decision of the 1st appellate Court on the
interpretation of S.7(iv)(c) is a question of law. There is
thus no merit in the preliminary objection. [324E-G]
Vasu v. Chakki Mani (A.I.R. 1962 Kerala 84 referred to).
Rathnavarmaraja v. Smt. Vimla, A.I.R. 1961 S.C. 1299
referred to and distinguished.
(ii) 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 plaintiff’s. suit
will have to fail for failure to ask for consequential
relief is of no concern to the Court question of Court Fee,
should look into at that stage, the Court in deciding the
allegations in the plaint to see 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 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 sons, the
father may, incur a debt, so long as it is not for immoral
purposes and the joint family estate is open to be taken in
execution ,of proceedings upon a decree for the payment of
the debt. [324G-3250]
Fakir Chand v. Harnam Kaur 1967 1 S.C.R. 68, referred to.
323
(iii) In the present case, 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 for setting aside the decree or for the
consequential relief of injunction restraining the decree
holder from executing the decree against the mortgaged
property. [325B-C]
In deciding whether a suit is purely declaratory, the
substance and not merely the language or the form or relief
claimed should be considered. [325G]
Zeb-ul-Nisa v. Din Mohammad, A.I.R. 1941 Lahore 97 referred
to.
(iv) In a suit by the son for a declaration that the
mortgage decree obtained against his father is not binding
upon him. it is essential for the son to ask for setting
aside the decree as a consequence of the declaration claimed
and to pay ad velorem Court fee under s. 7(iv)(c). A decree
against the father is a good decree against the son and
unless the decree is set aside, it will remain executable
against the son and it is essential for the son to ask to
set aside the decree.
Further, in a suit by the son for a declaration that a
decree against the father, does not affect his interest in
the family property, consequential relief is involved and ad
velorem Court fee is necessary. [326F-G]
Prithvi Rai v. D. C. Ralli, A.I.R. 1945 Lahore 13, and
Vinayakrao v. Mankunwar Bai, A.I.R. 1943 Nagpur 70, referred
to
The Judgment of the Court was delivered by
ALAGIRISWAMI, 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 alienee from him the
appellant.
On 13-7-1962 the father executed a mortgage deed in favour
of the appellant of a property of which he claimed to be the
sole owner for a sum of Rs. 15,000/-. The mortgagee, the
appellant filed a suit on the foot of this mortgage and
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obtained a decree. When he tried to take out execution
proceedings for the sale of the mortgaged property,
respondents 1 and 2 filed a suit for a declaration that the
mortgage executed by their father in favour of the appellant
is nun and void and ineffectual as against them as the
property was a joint Hindu family property, and the mortgage
had been effected without consideration and family
necessity. On this plaint the plaintiffs _paid a fixed
court fee of Rs. 19.50 and the value of the suit for
purposes of jurisdiction was given as Rs. 16,000. A
preliminary objection having been raised by the appellant
that the suit was not properly valued for purposes of court
fees and jurisdiction, the Subordinate Judge tried it as a
preliminary issue. He held that although the case is
covered by section 7(iv) (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 was the
amount at which the plaintiff-, valued the suit for the
purposes of jurisdiction. The court fee not having been
paid the plaint was rejected. The plaintiffs thereupon
carried the matter up on appeal before the High Court of
Punjab & Haryana. Before that Court the plaintiffs did not
seriously 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
324
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:
Court held that there was no consequential relief involved
since neither the decree nor the alienation binds the
plaintiffs in any manner. The 1st defendant in the suit
has, therefore, filed this appeal.
Before us a preliminary objection was raised based on the
observations of this Court in Raihnavaramaraja v. Smi.
Vimla (1) that the present appeal is not competent. In that
case this Court observed that whether proper court-fee is
paid on a plaint is primarily a question between the
plaintiff and the State and that the defendants who may
believe and even honestly that proper court-fee has not been
paid by the plaintiff has still no right to move the
superior courts by appeal or in revision against the order
adjudging payment of court-fee payable on the plaint. But
the observations must be understood in the background of the
facts of that case. This Court was there dealing with an
application for revision 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 which the court does not possess or on the
ground that the Court has acted illegally 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 arm the defendant with a weapon of technicality to
obstruct the progress of. the suit by approaching the High
Court in revision against an order determining the court fee
payable. The ratio of that decision was that no revision on
a question of court fee lay where no question of
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jurisdiction was involved. This decision was correctly
interpreted by the Kerala High Court in Vasu v. Chakki
Mani(2)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 1 1 of the C.P.C. Such an
order amounts to a decree under section 2(2) and there is a
right of appeal open to the plaintiff. Furthermore, in a
case in which this Court has granted special leave the
question whether an appeal lies or not does not arise. Even
otherwise a 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 a question of
law. There is thus no merit in the preliminary objection.
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
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 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
(1) A. I. R. 1961 S. C. 1299.
(2) A. I. R. 1962 Kerala 84.
325
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 (Faqir Chand v. Harnam Kaur(1). 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 Zeb-ul-Nisa v. Din
Mohammad(2)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 Art.
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
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mutwalli and his brother were null and void and were
ineffectual against the waqf property. It was held that the
second part of the declaration was tantamount to the setting
aside or cancellation of the alienations and therefore the
relief claimed could not be treated as a 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
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 alienations
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 s. 7 (iv) (c) of the plaintiffs in
view of ss. 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. 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 ques-
tion whether the declaration sought does or
does not fall within the purview of s. 42,
Specific Relief Act, furnishes a satisfactory
or conclusive test for determining the court
fee payable
(1) [1967] (1) S.C.R. 68.
(2) A. I. R. [1941] Lahore 97.
326
in the suit of this description. When the
plaintiff is a party to the decree or deed,
the declaratory relief, if granted, neces-
sarily 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 where the
plaintiff is not a party to the decree or the
deed. tile declaratory relief does not
ordinarily include any such consequential
relief. But there are exceptional cases in
which the plaintiff though 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
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, a decree passed against the manager
will be binding on the other members of the
If therefore a copartner sues for a declaration that such an
alienation or decree is null and void, the declaration must
I think be held to include consequential relief in the same
may as in those cases in which the plaintiff is himself a
party to the alienator, 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 a mutwalli of waif property would also ap-
pear to stand on a similar footing. In the case of waif
property, it is only the trustee or the mutwalli who can
alienate the property. If he makes an alienation it is
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binding on all concerned, until and unless it is set aside.
If therefore a person sues to get such an alienation
declared null and void, lie 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 (1) 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 s. 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 Finayakrao v.
Mankunwarbai(2) 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.
We should now refer to certain decisions relied upon by the
respondents. We do not consider that the decision of the
learned Single Judge of the Madras High Court in Venkata
Ramani v. Mravanaswami(3) lays down the correct law. It
proceeds on the basis that
(1) A.I.R. 1945 Lahore 13.
(2) A.I.R. 1943 Nagpur 70.713.
(3) A.I.R. 1925
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 ignores the effect of Hindu Law in respect of a
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 a cancellation of the decree. This aspect
does not seem to have been taken into consideration by the
learned Single Judge. The decision of a learned Single
Judge of the Nagpur High Court in Pandurang Mangal 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(2) it does not seek to distinguish them
for holding otherwise. The learned-Judge gives 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 a difference between a
simple money decree and a mortgage decree. obtained against
a Hindu father when it is questioned by the son and its view
that in execution of a simple money decree the entire joint
family property, inclusive of the interest of the sons, is
liable to be sold in execution of the decree, but that in
the case of a mortgage decree it is not necessary for a 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 decision of
the Allahabad High Court in Ishwar Dayal v. Amba Prasad (3)
is not a good law. As regards the decision of the Full
Bench of the Allahabad High Court in Bishan Sarup v. Musa
Mal(4) there is nothing to show whether the alienation was
made by the manager of a joint Hindu family and therefore
the decision is not in point.
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We, therefore, hold that the decision of the High Court was
not correct and allow this appeal with costs. The
plaintiffs would be given a month’s time for paying the
necessary court fee.
Appeal allowed.
(1) A.I.R. 1949 Nagpur 37.
(2) A.T.R. 1945 Lahore 13.
(3) A.T. R. 1935 Allahabad 667.
(4) A.I.R. 1935 Allahabad. 817.
328