Chaudhuri Bishwanath Singh and Another vs Chaudhuri Kishore Singh and Another

Meredith, J.—This is a reference u/s 5, Court-fees Act. The facts of the case are that the plaintiffs, claiming to be reversioners sued for a declaration that a sale made by defendant 3, a Hindu widow, in favour of defendants 1 and 2, was not binding upon the reversionary interest. The reliefs asked for in the plaint were

(1) On adjudication of the above points the Court may be pleased to decide defendant 3 had and has only life interest in respect of the lands in suit and that these plaintiffs are the next reversioners of Bandhu Singh aforesaid; (2) the Court may, on adjudication of relief No. 1 be pleased to declare that the loan taken under the sale deed dated 23-3-36 executed by defendant 3 in favour of defendants 1 and 2 in respect of the lands specified herein below was unnecessary and illegal and as such the sale deed is void, illegal and inoperative as against the plaintiffs, who neither are nor can be bound thereby.

There is also the usual prayer for any other reliefs, but that is not material. The plaint was stamped with a court-fee of Rs. 15 for a declaration merely, under Article 17(3) of Schedule 2, Court-fees Act. The suit was dismissed by the trial Court on the finding that the plaintiffs were not reversioners, and had no status entitling them to sue. The plaintiffs appealed, paying again a court-fee of Rs. 15 and the appellate Court decreed the suit, and gave the plaintiffs a declaration in these terms:

It will be declared that the sale deed (Ex. 1), dated 23rd March 1986, executed by Mt. Piaree Kuer in favour of Chowdhury Viswanath Singh and Chowdhury Sarjoo Singh, defendants 1 and 2, will not be binding on the plaintiffs reversioners.

Defendants 1 and 2 then preferred the present second appeal. The Stamp Reporter took the view that the suit was one for declaration and consequential relief, inasmuch as a declaration was first sought for that the plaintiffs were reversioners, and the second relief flowing therefrom was the consequential relief that the alienation by the widow was not valid and binding on the reversioners after her death, and ad valorem court-fees u/s 7(iv)(c) were, therefore, payable upon the plaint, memorandum of first appeal and memorandum of second appeal, and there was a deficit for each. The learned Taxing Officer, considering the question of general importance has referred the case to me as Taxing Judge.

Before I proceed to deal with the questions arising, I wish to clarify the position, of the Taxing Judge. Section 5 is in chap. 2, Court-fees Act, which relates to fees in the High Court and in the Courts of Small Causes at the Presidency towns. Section 5, moreover, provides for reference to the Taxing Judge regarding any difference arising between the officer whose duty it is to see that a fee is paid under this chapter (that is, the Stamp Reporter) and any suitor or attorney as to the necessity of paying a fee or the amount thereof. It is thus clear that the Taxing Judge has jurisdiction only with regard to the fee payable in the High Court, that is to say, the fee payable upon the memorandum of second appeal. Upon this point his decision is final but he can give no decision with regard to the court-fee payable in the Courts below. The question of the deficit, if any, payable upon the plaint and memorandum of first appeal is one to be dealt with by the Bench hearing the appeal, and should accordingly be referred to that Bench. The fact that the Taxing Judge''s decision is final will not fetter in any way the decision of the Bench, because the finality relates only to the question of the amount actually payable in the particular case upon the memorandum of appeal to the High Court. Regarded as a decision laying down principles of general application the Taxing Judge''s decision is merely that of a Judge sitting in Single Bench and is not binding upon a Division Bench.

Upon the reference it appears to me that two questions arise; first, whether in a suit of this nature two declarations are involved, or only one. Are separate declarations necessary (1) that the plaintiffs are reversioners, and (2) that the alienation is not binding on the reversionary interest? If two declarations ar& necessary, then at the lowest Rs. 30 would have to be paid, Rs. 15 for each declaration.

Second, if two declarations are necessary,, is the second to be regarded as consequential relief upon the first so as to make Section 7(iv)(c) applicable ?

The first question needs no lengthy discussion. The answer is that no declaration regarding the plaintiff''s character as reversioners is necessary. It need not be asked for, and indeed if asked for as a separate declaration,, it could not be given since the plaintiffs have no vested interest until the succession opens and are not entitled to any declaration of their hypothetical future interest.

Suits of this nature are expressly provided! for u/s 42, Specific Relief Act. Illustration (e) to the section says:

The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the-property if he survive her may in a suit against the alienee obtain a declaration that the alienation was. made without legal necessity and was therefore void beyond the widow''s lifetime.

Illustration (d) is also in point. It is:

A alienates to B property in which A has merely a life interest. The alienation is invalid as against. 0, who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so-entitled.

It is clear from these illustrations that a suit of this type is contemplated as a suit fori a single declaration, and not for two declara-l tions. If any doubt remained it has been set at rest by the Privy Council in Saudagar Singh v. Pardip Narayan Singh, A. I. R. 1917 P. C. 196. ,In that case Lord Parker of Waddington said,, referring to Section 42, Specific Relief Act:

It appears to their Lordships to be clear on this, section that where any deed is executed, the result of which may be to prejudice the interests of the: reversionary heirs, those heirs, though still reversionary and though they may never get any title, because events may preclude them from doing so may have a declaration as to the effect of the deed. The declaration here is simply confined to that.... This is an exact illustration of that which. Section 42, Specific Belief Act, was meant to provide for. It is quite true that it involves a finding that the plaintiffs in this case are reversionary heirs, but that must always be the case where a declaration is made following the Illust, (e) of the section, because it is. only in virtue of the persons claiming the declaration being reversionary heirs, and therefore presumptively; entitled, that the declaration is made.

In Ramautar Sav v. Ram Govind Sav A. I. R. 1942 Pat. 60 pointed out that a declaration cannot be said to be asked for by necessary implication where no declaration in the true sense is necessary before the plaintiff can be given relief, this distinction being very clearly laid down in Ramkhelawan Sahu v. Surendra Sahi A. I. R. 1938 Pat. 22. A declaration as contemplated in Section 42 and in Section 7(iv)(c), Court-fees Act, does not include what is really only the finding of fact necessary before the real relief sought can be granted. The distinction between a declaration in the true sense and what is merely a necessary finding, that is where the plaintiff''s right does not depend upon a declaration being made but on a finding of fact being arrived at, is also clearly drawn in Maung Skein v. Ma Lon Ton A. I. R. 1931 Rang. 319.

Looked at in another way, it can never be necessary for a plaintiff to ask for a declaration which as a declaration he cannot legally get. A suit merely for a declaration that the plaintiff is a reversioner will not come u/s 42, Specific Relief Act, and will not lie. u/s 42 the person seeking the declaration must be entitled to some legal character or to some right as to property. As I have said, a reversioner as such has no vested interest. He has no present legal character or right in regard to any property which can be declared. Such suits are never entertained: see Janki Ammal v. Narayansami Aiyar 431. A. 207,5 where the Privy Council laid down that the next reversioner to the estate of a deceased Hindu, expectant upon the widow''s death, is not entitled to a declaration under the Specific Belief Act, Section 42, that he is next reversioner, although in that capacity he has the right to sue on behalf of the reversioners for the protection of the estate. Where therefore he sues the widow alleging waste, but fails to prove any wrongful act on her part, a declaration that he is the next reversionary heir cannot be made, oven if the fact that he is so has been put in issue.

He sues in fact not on his own behalf but in a representative capacity, so that the corpus of the estate may be preserved for the reversionary body. Their Lordships say that such a declaratioa in respect of the plaintiff personally would be unavailing as well as premature. Such declaration should not be permitted to enter the decree. Their Lordships add: "Had waste of, or danger to, the estate been established, the title of the plaintiff to bring those matters before the Court in his representative capacity as a possible reversionary heir would have been allowed, and a decree following upon the finding of fact of such waste or danger would have followed." In this connexion I may refer also to a Madras case, Rama Rao v. The Raja of Pittapur A. I. R. 1919 Mad. 871. There it was pointed out that it is settled that a reversioner has no personal right of action. If he happens to be the next reversioner, or if he is able to prove that the next reversioner has neglected his rights, he is given a right of action as representing the entire body of the reversioners. He has no individual rights. It is a settled rule of practice not to grant relief by way of declaration where the only question for decision is which of two persons is the nearer reversioner, or whether, the plaintiff is the reversioner at all.

Moreover, it has never been the practice in the case of suits of the type contemplated by illustration (e) to Section 42 to charge any separate fee for a declaration of plaintiff''s reversionary interest, though separate declaratory fees are charged in respect of each alienation sought to be avoided : see Daivachilaya Pillai v. Ponnathal (95) 18 Mad. 459 and Harekrishna Das v. Sunamahi Dei A. I. R. 1940 Pat. 158.

The position then is that it is not necessary for the plaintiff to ask for a declaration of his reversionary interest and such declaration cannot be read into the plaint by implication, because it is not a necessary or possible preliminary relief. Nevertheless, the plaintiff may for reasons of his own, because for example, he knows his position as reversioner is challenged, elect to ask specifically for a separate declaration in that regard. If he asks for it expressly he must pay for the privilege, even if he cannot get what he asks for, because the question of court-fees must be settled purely upon the nature of the plaint. If then, the plaintiff does expressly ask for two declarations (1) that he is the reversioner and (2) that an alienation is not binding upon the reversionary body, what is the position ? How are court-fees to be assessed ?

This is the second question. It is not so easy as the first and there is some conflict of opinion. Nevertheless, I myself feel no hesitation in holding that such a suit is to be treated merely as one for two declarations, and the second declaration cannot be regarded as relief consequential upon the first. That a suit for two declarations is not necessarily a suit for declaration and consequential relief is not open to doubt. There are numerous such cases, for example, Moti Singh v. Kaunsilla (94) 16 All. 308 where it was held that a suit by a claimant asking for a declaration of his title to the property under attachment as against the debtor and also asking for a declaration in denial of the judgment creditor''s right to bring the property to sale in execution is simply a suit for two declarations, not declaration and consequential relief. Another example is Lakshmi Narain Rai Vs. Dip Narain Rai , a case where the plaintiff sued for a declaration that a decree was null and void and that he was the manager of the property in suit, and it was held that the suit was merely for two declarations without consequential relief.

What exactly is consequential relief. There are several cases in which attempts have been made to define it. For example, in Hyder Alii Sahib v. Hussain Raza Sahib A. I. R. 1915 Mad. 444 we find this definition:

For the purposes of the Court-fees and Suits Valuation Acts, the expression ''consequential relief means a substantial and immediate remedy in accordance with the title which the Court has been asked to declare.

I wish to emphasise the words "immediate remedy in accordance with the title." In Kalu Ram Vs. Babu Lal and Others, a Full Bench of the Allahabad High Court said:

The expression ''consequential relief in Section 7(iv)(c) 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 substantive relief.

In Ishwar Dayal Vs. Amba Prasad and Others, ''consequential relief is defined as "some relief which is a necessary corollary to the principal declaratory relief prayed for by the plaintiff."

Let us apply these principles to the case we are considering. First, is the relief a necessary corollary to the principal declaratory relief prayed for? Does it follow directly from the declaration given ? Most certainly it does not. It needs an entirely independent adjudication. It does not necessarily follow from a declaration that the plaintiff is the reversioner, that the alienation is not binding on him. He has also to show that the alienation was not for necessity, and that point needs a separate adjudication before a second declaration can be given. If the plaintiff could be given the first declaration, it would not follow as a matter of course that he was entitled to the second one. Therefore, the second declaration is not purely consequential upon the first relief. It needs an independent adjudication. To quote Murza Hyder Ali Sahib v. Hussain Raza Sahib A. I. R. 1915 Mad. 444 it is not merely in accordance with the title which the first declaration gives the plaintiff. Quoting Ishwar Dayal Vs. Amba Prasad and Others, "it is not a necessary corollary to the. principal declaratory relief," or to use the words of Kalu Ram Vs. Babu Lal and Others, it would not follow directly from the declaration given." In Ishwar Dayal Vs. Amba Prasad and Others, after pointing out that a consequential relief means some relief which follows directly from the declaration given, as a necessary corollary, their Lordships point out that such cases must be distinguished from cases in which two or more declaratory reliefs are prayed for by the plaintiff. It may be, they say,"

that one of such declaratory reliefs given in one sense may be said to follow from the other declaratory relief, but this fact alone cannot make a declaratory relief a consequential relief within the meaning of Section 7(iv)(c).

They prescribe a useful test. Can the relief put forward as consequential be claimed independently of the declaration as a substantive relief ? If it can it is not consequential. In the present case the second declaration, as I have shown, can and in fact should be claimed independently of any declaration of plaintiffs'' reversionary interest. There must, of course, be a finding but, as I have, shown that finding is quite a different matter from the declaration contemplated in Section 7(iv)(c). Ishwar Dayal Vs. Amba Prasad and Others, was a suit for a declaration that a mortgage bond was not in force and that the property mortgaged under the bond was not liable to be sold in execution of the mortgage decree. The second relief was not regarded as consequential upon the first. A somewhat similar test is prescribed in Karap-pana Thevar v. Angammal A. I. R. 1926 Mad. 678. Supposing the first relief is not granted, says the learned Judge, does it follow that the plaintiff cannot obtain the second relief ? In the present case the first relief can never be granted. That does not debar the plaintiff from obtaining the second relief.

Let us look at the matter in another -way. Is the second declaration a "substantial and immediate remedy" to quote once more Murza Hyder Alli Sahib v. Hussain Raza Sahib A. I. R. 1915 Mad. 444 In my judgment, it is not. It is a declaration in future. The plaintiff in such a suit is entitled to no immediate remedy. He is given the privilege of obtaining a declaratory remedy, which he can use to obtain relief only upon the death of the widow. There is no question of cancelling the sale deed, Or declaring it void. There is no analogy with the cases where a prayer for cancellation of the document is held to be implicit in the plaint so as to involve consequential relief : see Shamdas v. Charan Das A. I. R. 1925 Lah. 90. The document is to remain entirely valid as against the widow who has executed it,and to the full term of her interest. I have shown that the reversioner has no vested interest in respect of which he personally can be given any relief or immediate remedy.

There is yet another way in which the position may be analysed. Can any relief be regarded as consequential upon a declaration which cannot be given as an appendage to something which in itself has no existence? If the plaintiff asks for two declarations, he cannot get the first as an independent relief. How then can he be regarded as getting the second relief as consequential upon the first ?

Unfortunately there is a decision of one of my predecessors, which is directly contrary to the view I am taking. That is in M.J.C. No. 49 of 1921. That was a case where the plaintiff asked for two declarations, (1) that it may be held that the plaintiff is reversionary heir of Mangal Prasad Singh, and (2) that it may be adjudicated by the Court that the sale deed, dated 9th June 1914 and some other sale deeds executed by defendants 2 and 3 in favour of defendant 1 are without valid necessity or consideration and not binding upon the plaintiff after the death of the Hindu female. The learned taxing Judge said that the second relief came clearly u/s 42, Specific Relief Act, but in the first relief a declaration was sought for as to the title of the plaintiff as reversionary heir. If he was an admitted reversionary heir and there was no dispute about it, this relief would have been unnecessary, but as; he apprehended a dispute as regards his title and wanted it to be cleared up by an adjudication of the Court it became necessary for him to ask for the aforesaid , relief. He goes on:

The court-fee payable is to be judged purely upon the construction of the plaint and the reliefs sought for. Consequently the reliefs in this case relate to a declaration of the plaintiff''s title and the consequential relief flowing therefrom, namely, a declaration that the alienations effeoted by the Musammat are not valid and binding upon the reversioner after her death.

He accordingly held that court-fee was payable u/s 7(iv)(c). There is no discussion of the question further than what I have quoted. I can only say that I do not follow the reasoning, and I do not agree with the decision. I do not understand how the declaration that an alienation is not binding upon the reversionary body in any way flows as a consequential relief from a declaration that any one person in particular is the reversioner. There is no necessary connexion at all between the two. As I have already indicated, the decision of the taxing Judge, while final so far as the particular case is concerned, is merely that of a Judge sitting singly so far as it lays down any general principle.

It is, however, further argued that this decision of the Taxing Judge has been approved in the Division Bench case of Khiri Chand Mahton v. Mt. Maghni 5 Pat 496,16 and is, therefore, binding upon me. It is true it was referred to with approval, but it does not necessarily thereby become a binding autho-'' rity, unless the question to be decided by the Division Bench was identical with the question decided in the miscellaneous judicial case. If I understand rightly Khiri Chand Mahton v. Mt. Meghni A. I. R. 1926 Pat. 453, it was a case of a very different character. The plaintiff was a Hindu widow, and she claimed that she had already succeeded to the property of her deceased husband, and that defendant 1, widow of a brother of her husband''s who had died, she said, while joint with him, was entitled only to maintenance. The first relief asked for was a declaration that the disputed properties formed part of the plaintiff''s inheritance, and defendant 1 had no title thereto and no right to transfer the same. The second relief asked for was that on determination of relief No. 1 it might be held that defendant 1 had no right to execute a particular sale-deed in favour of defendant 2, it had not affected the title of the plaintiff, nor had defendant 2 acquired any right thereby. It was held that this was a suit for declaration and consequential relief. But here the suit was plainly for a declaration of plaintiff''s present title as heir, and as consequential to and flowing therefrom a declaration that a sale of that property by some one else was void. The second declaration, as has been held in a number of decisions, was regarded as involving by implication cancellation of the document, and so was substantial and immediate relief, and it was clearly directly consequential upon the declaration of the plaintiff''s title. It seems to me that the questions decided in that case bear no relation to the problem now under consideration. It cannot be used as an authority upon the question. I hold then that in the case where the declaration of the plaintiff''s reversionary interest is expressly asked for as an independent declaration the suit is one merely for two declarations, and the court-fee payable is Rs. 30.

Let us apply the conclusions I have arrived at to the case under examination. To which type does -it belong ? Were two declarations asked for or one? I have no hesitation upon a construction of the plaint in holding that it was an ordinary suit under Section42, Illust. (e), Specific Relief Act. The Court, it is true, was asked to adjudicate and decide that the plain tiffs are the next reversioners, but that was only incidental to the main relief asked for, namely, that the aale was not binding upon the reversionary body. Not only was there no prayer for a specific declaration upon the first point, but the plaint nowhere contained any allegation that the plaintiffs'' title as rever sioners had been challenged. The court-fee payable upon the memorandum of appeal in this Court is Rs. 15.