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TMI Blog1940 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... reof mentioned in para, 4 of the petition of plaint which defendants 1 and 2 have effected in favour of defendants 3 to 10 are null and void' and ineffectual as against the wakf property may be passed with costs in their (plaintiffs') favour against the defendants or any other relief deemed equitable may be granted. 2. The relief was valued by the plaintiffs at rupees ten lacs for the purposes of jurisdiction, but a court-fee of ₹ 10 only was paid treating the suit as one for a declaration without any consequential relief falling, under Clause (iii), Article 17, Schedule II, Court-fees-Act. A preliminary objection was raised on. behalf of the defendants that the suit was not properly valued for the purpose of court-fee. It was contended that the suit was not really for a mere declaration, but involved, also a consequential relief in the shape of cancellation of certain alienations and therefore court-fee should have been paid ad valorem on the value of the properties involved, i.e., on rupees ten lacs as stated by the plaintiffs themselves for the purpose of jurisdiction. The learned Judge of the triali Court upheld this contention and the plaintiffs having failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaratory form cannot alter its real nature. It was also urged that a further relief in the shape of restitution of possession to the mutwali was open to the plaintiffs and hence a suit for a mere declaration was incompetent. In my opinion the first contention of the learned Counsel for the respondents should prevail. As stated above, it was not disputed before us that in order to ascertain the real nature of the relief claimed by the plaintiffs, the substance of the plaint must be considered and the mere fact that the relief as stated in the prayer clause is expressed in a declaratory form would not necessarily show that the suit is for a mere declaration and no more.] This proposition is well established and is supported by ample authority: Shankaran Nair v. Gopala Menon (07) 30 Mad. 18, Arunachaflam Chetty v. Rangasamy Pillai A.I.R. 1915 Mad. 948, Kamla Prasad v. Jagarnath Prasad A.I.R. 1931 Pat. 78, Parvatibai v. Vishvanath Ganesh (05) 29 Bom. 207, Maung Shein v. Ma Lon Ton, Kalu Ram v. Babu Lal AIR1932All485 , Mt. Rooop Rani v. Bithal Das A.I.R. 1938 Oudh. 1, Hakim Rai v. Ishar Das-Gorakh Rai A.I.R. 1927 Lah. 499 and Sri Kishan Das v. Sat Narain A.I.R. 1932 Lah. 132. The qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bhagwan Singh A.I.R. 1938 Oudh 201. 8. Before proceeding further, it is necessary to examine the cases relied on in Sultan Khan v. Ziauddin A.I.R. 1935 Lah. 611 because that ruling does not discuss the law on the point, but merely takes it, as well settled, that when a person who is not a party to a decree or a deed 3ues to have it declared void, Article 17, Court-fees Act, applies, and the court-fee payable is ₹ 10. The first case relied on in Sultan Khan v. Ziauddin A.I.R. 1935 Lah. 611, viz., Ganeshi Lal v. Beni Prasad 1 P.R. 1911, does not appear to be of much assistance. There was no question of setting aside any deed or decree in that case. The plaintiff sued for a declaration that he was the real holder of a certain decree which had been obtained by defendants against a third party and also prayed that the decree be transferred to him. The learned Judge treated the latter prayer to be redundant and held the suit to be merely declaratory and as such properly stamped with a ten rupee stamp. The question whether any other further relief was open to the plaintiffs and the plaintiffs should have asked for it was however left open. 9. The next ruling relied on was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty to a decree sues to have it declared void he need not sue for any consequential relief and the court-fee payable is that for a declaratory suit. In this ruling also, the distinction referred to above between a suit where a reversioner seeks a declaration with respect to an alienation made by a widow and that in which an alienation of waqf property is challenged was not noticed. The ruling purports to follow Bua Ditta v. Ladha Mal A.I.R. 1919 Lah. 63 in which the principles laid down in Arunachalam Chetty v. Rangasamy Pillai A.I.R. 1915 Mad. 948 were approved and followed. The next ruling referred to in Sultan Khan v. Ziauddin A.I.R. 1935 Lah. 611 was Karam Chand v. Uma Datt-Hans Raj A.I.R. 1930 Lah. 755. The question of court-fees was not discussed at any length in this ruling. It merely purports to follow Ganeshi Lal v. Beni Prasad 1 P.R. 1911 and Mt. Nihal Devi v. Rai Chuni Lal A.I.R. 1923 Lah. 373 in holding that when a person who is not a party to a decree challenges it, the suit should be treated as one for a declaration only. The last case relied on in Sultan Khan v. Ziauddin A.I.R. 1935 Lah. 611 was Beli Ram v. Ishar Dass A.I.R. 1928 Lah 113. This case seems to be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The first of these, which is the only one relevant to the point now under discussion, was as follows: Whether a suit for a declaration that an instrument of mortgage or sale executed by the plaintiff or a decree that has been passed against the plaintiff for a debt is not binding is a declaratory suit only. 14. The Full Bench held that as the plaintiffs had in terms claimed not only a declaration but also an injunction which was a consequential relief, the case clearly fell under Section 7(iv)(c). In this aspect, the above question did not really arise. They, however, went on to answer the above question which had been referred to the Full Bench, viz., whether (even apart from the injunction) the suit for a declaration that a certain decree or instrument to which the plaintiff was a party was not binding on him could be considered to be a purely declaratory suit. They referred to Tacoordeen Tewarry v. Ali Hossain Khan (74) 1 I.A. 192, a decision of their Lordships of the Privy Council, in which the plaintiffs asked for confirmation of their possession of certain villages after setting aside a sale as fraudulent. It was held by their Lordships in that case that the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngasamy Pillai A.I.R. 1915 Mad. 948 was apparently Arunachalam Chetty v. Rangasamy Pillai A.I.R. 1915 Mad. 948 considered to be as an authority in support of the proposition that in cases where the plaintiff, who is not a party to a decree or instrument, seeks to set it aside, the suit may be regarded as one for a declaration only. But as pointed out above, there is nothing in the report of this case beyond the remarks in the referring order quoted above to support the view. The remarks on this point in Bua Ditta v. Ladha Mal A.I.R. 1919 Lah. 63 were moreover really obiter, as the plaintiff in that case was a party to the decree sought to be set aside. The decision in Mt. Nihal Devi v. Rai Chuni Lal A.I.R. 1923 Lah. 373 was apparently based chiefly on Amin Chand v. Sant Murli Dhar 18 P.R. 1913 and Bua Ditta v. Ladha Mal A.I.R. 1919 Lah. 63 and most of the subsequent rulings of this Court seem to have merely followed that case without further examination of the point. 17. In three recent rulings, however, a different view has been expressed viz., Mahomed Hayat Khan v. Jagpat Rai-Babu Ram A.I.R. 1936 Lah. 703, Sohindar Singh v. Shankar Das A.I.R. 1936 Lah 166 and Narain Das v. Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Das v. Har Sukh Das-Chhog Mal (34) 152 I.C. 847, another Division Bench of this Court held that a plaint in a suit for a declaration that a decree could not be executed against the plaintiffs on the ground that they were not parties to it must pay ad valorem court-fee under Section 7(iv)(c), Court-fees Act. The facts of this case are not however very clear. The ruling purports to follow Bindraban v. Punjab National Bank Ltd. A.I.R. 1929 Lah. 463, but in that case, the plaintiff was seeking to set aside a decree which was passed against him. So far as the other High Courts or Chief Courts in India are concerned, it will be sufficient to refer to two recent Full Bench decisions of the Chief Court of Lucknow in which the case law on the subject has been reviewed, viz., Mt. Roop Rani v. Bithal Das A.I.R. 1938 Oudh. 1 and Bepin Singh v. Bhagwan Singh A.I.R. 1938 Oudh. 201. In the former case the questions referred to the Full Bench were: 1. Whether the question of proper court-fee payable in a suit is to be determined mainly on the language of the relief claimed in the plaint or on the substance of the claim to be gathered from the whole plaint? and 2. Whether a consequential reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Madras High Court in Arunachalam chetty v. Rangasamy Pillai A.I.R. 1915 Mad. 948 also did not support any such proposition. The Bench eventually held that the true criterion for deciding whether a suit was a purely declaratory one or not was not whether the plaintiff was or was not a party to the decree which is impugned but whether the suit is or' is not a declaratory one of the type as covered by Section 42, Specific Relief Act. Reliance was placed in support of this conclusion chiefly on the remarks of Sir Lawrence Jenkins, Chief Justice of the Calcutta High Court, in Deokali Koer v. Kedar Nath (12) 39 CaL. 704. 23. The main relief asked for in Deokali Koer v. Kedar Nath (12) 39 CaL. 704 was as follows: That it maybe declared that the registered deed, dated 1st June 1896, for ₹ 14,000, executed by defendant 9 in favour of the father and ancestors of defendants 1 to 8, is collusive, nominal, invalid, fraudulent and without consideration; that the decree passed on the basis thereof which is pending execution in No. 83 of 1909 in the first Court of subordinate Judge at Arrah has been collusively and fraudulently obtained and it is ineffectual, inoperative and inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it is difficult to see, how it follows that when a plaintiff prays for a declaration, which does not fall under Section 42, Specific Belief Act, the suit ceases to be a declaratory one. If a plaintiff asks for a declaration that does not fall under Section 42, the result may be that his suit may be liable to be dismissed if according to law he is not entitled to ask for such a declaration. 26. But I do not see how that can affect the question of court-fees. The question of court-fees has to be decided on the suit as framed. If the plaintiff is asking for a mere declaration without any consequential relief, prima facie, he is entitled to sue on a court-fee of ₹ 10 only. The case may be different if it is found that although the plaintiff has asked for what is, in form, a declaratory relief, that relief includes in reality some other relief of a consequential character. In such a case, the suit may rightly be held to be in substance a suit for a declaration with consequential relief as held by the Bull Bench of the Lucknow Chief Court in Mt. Roop Rani v. Bithal Das A.I.R. 1938 Oudh. 1, But if no such consequential relief is necessarily included in the declaration asked fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a declaration which does; not fall under Section 42 it will probably be disclosed in most cases on examination of the | substance of the relief claimed that he is really suing for some other relief and has merely expressed it in the form of a declaration to evade payment of higher court-fees. But it may also happen that the plaintiff being ill-advised sues for a declaration which does not fall under Section 42, Specific Belief Act, but which at the same time does not, in; fact, involve any other relief excepting a declaration. In such a case, I see no reason why he should pay a court-fee of more than ₹ 10. If it is held that the declaration asked for cannot be granted because it does not fall under Section 42, the result, I think, should be dismissal of the suit on that ground, and not assessment of a higher court-fee. It may be observed here that the; Court-fees Act was passed in 1870, while the Specific Belief Act, was passed in 1877. Section 42, Specific Belief Act, was therefore not in force when the Court-fees Act was enacted. The declaratory suits referred to in the Court-fees Act cannot therefore be taken to be necessarily those covered by section 42 only. 29. It se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt-fee in cases of this description is the substance of the relief claimed as disclosed by the plaint, taken as a whole. If the relief so disclosed is a declaration pure and simple, and involves no other relief, the suit would fall under Clause (iii) of Article 17 of Schedule II, Court-fees Act, and the court-fee payable would be ₹ 10 only. At the initial stage of determining the court-fee on a plaint, the question whether the declaratory suit is liable to be dismissed, either because it does not fall within the purview of Section 42, Specific Relief Act, or because the plaintiff has failed to sue for a further relief which was open to him or for some other reason does not seem to me to arise. That question will arise only after the necessary court-fee on the true relief as disclosed by the plaint is paid and the plaint is properly before the Court. In such a case therefore if after the payment of the court-fee, it is found that the declaration prayed for cannot be granted according to law for any such reasons as are mentioned above, the suit may be liable to be dismissed on that ground. If, on the other hand, it is found that the declaratory relief claimed involves a conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n seems to have been left to the plaintiff. 34. The meaning of the expression consequential relief as used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal: AIR1932All485 , and it was held that the expression 'consequential relief means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a 'substantial relief.' It follows therefore that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere 'consequential relief in the above sense the plaintiff must pay court-fee on the substantial relief. The above appears to me the appropriate answer to the main question of law which requires decision in this case. Applying the above test, we have now to see what would be the proper court-fee payable in the present case. As stated above, the plaintiff sued in this case for a twofold declaration viz. (4) that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with the question of court-fees and they are therefore, strictly speaking, hardly relevant for deciding as to what suits may be considered to be 'declaratory' for the purposes of Section 7(iv)(c) and Schedule 2, Article 17, Court-fees Act. However, even otherwise they do not seem to me to support the position taken up by the learned Counsel. 37. In the Madras case, the plaintiff prayed that a certain order passed by the Government was 'ultra vires and illegal and of no binding effect on the plaintiff.' It asked for no further relief. It was therefore contended before their Lordships that the plaint sinned against the Specific Belief Act, which forbids the Court to entertain a suit for a declaratory decree, which may be followed by a consequential relief unless that relief was specifically asked for. With reference to this contention their Lordships observed as follows: Now in the first place it is at least open to doubt whether the present suit is within the purview of Section 42, Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of Section 50, Chancery Procedure Act of 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict., cap. 86) and that a declaratory decree ought not to be made unless there is a right to some consequential relief, which, if asked for, might have been given by the Court or where, in certain circumstances a declaration of right was required as a step to relief in some other Court: Strimathoo Moothoo Vijia Ragoonadah Ranee v. Dorasinga tever (5) 2 I.A. 169; also Sheo singh Rai v. Mt. Dakho (75) 11 All. 688; Sadut Ali Khan v. Khajeh Abdool Gunnee (73) I.A. Sup Vol 165. Section 15, Civil P.C., 1859, was repealed by the Specific Belief Act in 1877 and Section 42 of that Act seems to have widened the scope of the declaratory relief. Under Section 42 a person may sue for a declaration as to his legal character or his right to any property even when no further specific relief is open to him; while before the enactment of that section it was not the practice to grant declaratory decrees unless such further relief was open to the plaintiff. This provision in Section 42 seems to have been introduced to enable a person to remove a cloud on his status or title in certain circumstances even when no further relief is open to him at the time. 40. It will thus appear that it is only under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be treated as a declaratory suit with consequential relief within the scope of Section 7(iv)(c), Court-fees Act, and under that section the plaintiffs would have the option to place any value on the relief they like for the purposes of court-fee. I would hold that the relief as to the setting aside of the alienations, cannot be properly treated as a consequential relief in the circumstances of this case. The expression consequential relief is not defined in the Court-fees Act, but the meaning of this expression has been considered and explained by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal (32) 19 A.I.R. 1932 All. 485 as stated above. According to the definition of the expression as given in that ruling, the relief claimed in this case cannot, in my opinion, be called consequential relief. In the present case the only part of the relief claimed that can be said to be purely declaratory is that in which the plaintiffs ask for a declaration that the property in dispute is wakf. But the other part of the relief which as shown above amounts to the setting aside or cancellation of the alienations-cannot be said to follow di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion is based on the view that the relief claimed in this case does not fall under Section 7(iv)(e), Court-fees Act. I may add, however, that even if the suit were held to fall under Section 7(iv)(e), it seems to me doubtful whether that would help the plaintiffs in this case. Section 7(iv)(c), no doubt, lays down that the plaintiffs shall state the value of the relief in the plaint in such cases. In the present case however the plaintiffs have themselves valued the relief in the plaint at rupees ten lacs. They did so, no doubt, for purposes of jurisdiction. All that Section 7(iv)(c) requires; however is that the plaintiff should state the value of the relief in the plaint. It could scarcely have been intended that the plaintiff should value the relief at one figure for jurisdiction and at another for court-fee. Sections 8 and 9, Suits Valuation Act, show that except when specific rules to the contrary have been framed under Section 9, the value for purposes of court-fee and jurisdiction must be the same. The present case, even if it falls under Section 7(iv)(c), would not fall under the existing rules under Section 9. In the present case, therefore, the plaintiffs were bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no doubt that the construction placed on the language of Section 7(iv)(c), Court-fees Act, in Barru v. Lachman (13) 111 P.R. 1913 leads to anomalous results. If it is open to plaintiff to place any arbitrary valuation on the relief in a case falling under Section 7(iv)(c) and the Court has no power to revise it, it would be apparently open to the plaintiffs to value a suit of the present type which involves rights to property worth ten lacs at one rupee if they choose to do so. Another anomalous result is that while a plaintiff has to pay a court-fee of ₹ 10 in a purely declaratory suit in which no consequential relief is prayed, he could value a suit which includes a consequential relief so low that he may not have to pay a court-fee of more than a few annas. This could scarcely have been the intention of the Legislature. At the same time there seems to be a considerable body of authority in support of the view taken in Barru v. Lachman (3)111 P.R. 1913: Jhanda singh v. Gulab Mal-Bhatwan Das A.I.R. 1933 Lah. 246. Probably the remedy lies in an amendment of the language of Section 7(iv)(c) or in framing suitable rules under Section 9, Suits Valuation Act, for certain clas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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