Kamla Prasad and another vs Jagarnath Prasad

Kulwant Sahay, J.—The question involved in the present appeal is, what is the amount of court-fee payable on the plaint ? The learned Subordinate Judge has found that the suit was for a declaration with consequential relief and that the plaint was chargeable with ad valorem court-fee on the value of the suit as given in the plaint. This would be so if the case fell under S. 7 (iv) (c), Court-fees Act. The plaintiffs, however, contended that they asked for a mere declaratory decree and no consequential relief was prayed for and, therefore, the court-fee chargeable was under Art. 17, Sch. 2, Court-fees Act, and the court fee paid was Rs. 15 only.

It appears that the sarishtadar of the Subordinate Judge''s Court, who was directed to check and report upon the plaint, had reported that the suit fell under 7 (iv) (c), Court-fees Act, and that ad valorem court-fee was payable on the plaint. The additional sarishtadar, however, made a report differing from the sarishtadar''s report. He was of opinion that the plaint asked for a mere declaration without any consequential relief, that the case was governed by the decision of this Court in Khiri Chand Mahton Vs. Mt. Meghni, , and that therefore the court-fee paid was sufficient. The learned Subordinate Judge accepted the view of the sarishtadar and not of the additional sarishtadar and directed that ad valorem court-fee be paid on the plaint. The Court-fee was not paid within the time allowed by the Subordinate Judge, and accordingly he rejected the plaint by his order of 6th September 1929. The plaintiffs have come up to this Court, and the only question is, what is the amount of court-fee payable on the plaint ?

The plaintiffs'' case in the plaint was that they were the reversionary heirs of one Moti Lal who died on 1st January 1929, leaving a widow, Mt. Muna Kuer, who is still alive, that Motilal died at a very old age and had been ill for five years before his death; that on account of his illness and old age and the loss of his son, his brain was "in a deranged and weak condition," that after the death of a brother of his in March 1927 he had for some time become insane, that the defendant was the son of the brother of the wife of the said Moti Lal, and that he got a deed of gift, dated 1st April 1927, executed by Moti Lal, which gift was "illegal, null and void and ultra vires" for reasons given in para. 5 of the plaint, the reasons being that the gift was executed under fraud, coercion, undue influence and illegal pressure, and without the free consent of Moti Lal. In para. 6 of the plaint the plaintiffs alleged that if the said deed of gift be allowed to stand, it will cause serious loss to the plaintiffs and their reversionary interest in the properties will be affected, that on 18th June 1928, Moti Lal during his "Incid interval" executed a deed cancelling the deed of gift, but it could not be registered; that:

as the gift is a registered one and in the opinion of the lawyers it could be cancelled by a registered deed and the deed of cancellation is an unregistered one, hence the suit.

In para. 8 of the plaint, the plaintiffs stated that Mt. Muna Kuer, the wife of Moti Lal, was in collusion and concert with the defendants and that therefore she did not agree to join the plaintiffs in instituting the present suit. In para. 9, the cause of action was stated to have arisen on 1st January 1929 the date of death of Moti Lal, and in para. 10 the plaintiffs stated that the value of the properties covered by the gift was Rs. 9,999 and that, therefore, the suit was within the cognizance of the Subordinate Judge''s Court, and a court-fee of Rs. 15 was paid for a declaratory decree. The reliefs asked for in the plaint are:

(1) For the reasons set forth above it may be declared by the Court that the deed of gift dated 1st April 1927, in favour of the defendant is illegal, null and void, nullity and ultra vires and that the same neither is nor can be binding upon the plaintiffs.

(2) If in the opinion of the Court the Slid deed of gift stands cancelled in the eye of law in view of the " cancel deed " dated 18th June 1928, the Court may be pleased to decide and declare that the said deed has become ineffectual and will not prejudice the plaintiffs'' reversionary interest.

(3) Costs in Court with interest may be awarded against the defendant.

(4) Such other and further reliefs as to which the plaintiffs be deemed entitled may be awarded to them.

It has been held in numerous cases that the substance of the plaint and not merely the exact reliefs asked for has to be looked into in order to determine the court-fee payable on the plaint. It is contended that the plaintiffs are mere reversioners and that the present possession of the estate of Moti Lal is with his widow, and that all that the plaintiffs require is a mere declaration that the deed of gift is illegal, null and void and that no consequential relief is or can under the circumstances of the case be asked for by the plaintiffs. The fact that the widow is still living and that the plaintiffs have no right to immediate possession does not to my mind affect the question under consideration. In substance the plaintiffs ask for a cancellation of the deed of gift. They may not be in a position to derive any immediate benefit by the cancellation; but the question whether the plaintiffs derive any immediate benefit or not is not a question which can affect the court-fee payable on the plaint. If in substance the plaintiffs ask for a cancellation of the deed of gift they ask for a declaration with consequential relief, and the case clearly falls under S. 7 (4)(c) Court-fees Act.

That a prayer for cancellation of a deed is a prayer for consequential relief cannot be denied. It has been so held in numerous cases. It was so held by the Privy Council in Tacoordeen Tewarry v. Nawab Syed Ali Hossein Khan [1874] 1 I.A. 192 = 21 W.R. 340 = 13 B.L.R. 427 = 3 Sar. 368 (P.C.). That was a suit brought by the plaintiffs for confirmation of their possession of certain mauzas, and the plaint prayed that possession might be confirmed after a reversal of a summary proceeding and after setting aside a fraudulent and fabricated deed of sale set up by the defendant. The Principal Sadar Ameen gave a decree to the plaintiffs in terms of their prayer. The High Court on appeal reversed so much of the decree of the Principal Sadar Ameen as confirmed the plaintiffs'' possession, holding that the plaintiffs had no possession which could be the subject of confirmation. The High Court then went into a consideration of the question whether the deed of sale was genuine or not. In dealing with this question the High Court held that they could only deal with it by way of a declaration, and they came to the conclusion that they had power to declare the plaintiffs'' title to the estate, but could not give any substantive relief. In dealing with the question their Lordships of the Privy Council observed as follows:

Their Lordships think that they (the High Court) erred in coming to that conclusion, the plaint prayed that the deeds might be set aside, which is a prayer for substantive relief, and the Principal Sadar Ameen was quite right when he came to the conclusion on the facts that the deeds ought to be set aside in making a decree to that effect.

In Samiya Mavali v. Minammal [1900] 23 Mad. 490 = 10 M.L.J. 240, the suit was to set aside a deed of sale executed by the plaintiff himself on the ground of fraud, collusion, undue influence and want of consideration. It was held that S. 7 (4) (c), Court-fees Act, applied, and that the valuation given by the plaintiff was the valuation which ought to be accepted.

The question was considered by a Full Bench of the Madras High Court in Arunachalam Chetty v. Rangaswamy Pillai [1915] 38 Mad. 922 = 28 I.C. 79 (F.B.). This was a suit for a declaration that a debt under a mortgage deed executed by the father of the plaintiffs was not binding on the plaintiffs and that a decree obtained on the basis of the mortgage bond was a nullity, and for an injunction to restrain the execution of the decree. One of the questions referred to the Full Bench was, 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 on him, is a declaratory suit only, and the answer given by the Full Bench, was that suits to declare mortgage or sale deeds not binding on the party executing it cannot be brought within Cl. (8) or any other part of the section except Cl. (4) (c), S. 7. The learned Judges then proceeded to consider cases where a declaratory decree was asked for without any consequential relief, and particularly the decision in the case of Sankaran Nair v Gopala Menon [1607] 30 Mad. 18 where the point was expressly considered and it was held that the substance and not the language of the plaint must be looked to, and though the suit in question was held to be a merely declaratory suit not involving consequential relief the Court at the same time expressed the opinion that where it was incumbent on the plaintiff to get the document set aside before he could question it, it must be treated as involving a prayer for consequential relief and the provisions of Cl. (4) (c) would be applicable. The reply given by the Full Bench was that a suit of the nature indicated which merely asked for a declaration is none the less a suit for a declaratory decree with consequential relief within the meaning of Cl. (4) (c).

The decision in Parvatibai v. Vishvanath Ganesh [1905] 29 Bom. 207 = 6 Bom. L.R. 1125 is also to the same effect. There the plaintiffs sued for cancellation of a sale deed and the prayer in the plaint was for a declaration that the sale deed was fraudulent and for an order to have it cancelled and a copy sent to the Sub-Registrar as provided by R. 39, Specific Relief Act. It was held by Sir Lawrence Jenkins, C.J. and Batchelor, J., that the suit was one for declaration with a prayer for consequential relief and the case fell under S. 7 (1) (c), Court-fees Act.

The same view was taken by this Court in Mt. Noowooagar Oiain v. Shidhar Jha [1918] 3 Pat. L.J. 194 = 45 I.C. 238. There the suit was to avoid a registered deed of gift executed by the plaintiff herself on the ground of misrepresentation. It was held that the suit was one under Chap. 5, Specific Relief Act, and the decisions in Parvatibai v. Vishvanath Ganesh [1905] 29 Bom. 207 = 6 Bom. L.R. 1125 and other cases were followed, and it was held that ad valorem court-fee was payable. In the present case the plaintiffs distinctly allege facts which bring the case under S. 39, Specific Relief Act.

The learned advocate for the appellants has relied upon Khiri Chand Mahton Vs. Mt. Meghni, . That case is no authority for the proposition contended for in the present case. The question involved there was whether court-fee had to be, paid separately in respect of two reliefs claimed in a suit where the decision with regard to one of them would render a decision with regard to the other unnecessary or one relief would be obtainable merely upon the strength of a decision with regard to the other, and it was held that the court-fee was payable only in respect of the principal relief; but where the reliefs claimed are separate and necessary the court-fee must be paid in respect of both of them.

On a consideration of the decided cases as well as of the provisions of sub-S. (4) Cl. (c), and other subsections of S. 7, Court-fees Act, I am of opinion that the present case falls under S. 7(4)(c) and that the court fee payable on the plaint is ad valorem upon the value to he stated by the plaintiffs. In the plaint the plain tiffs stated the value of the properties covered by the gift to be Rs. 9,999. It may be that this valuation was fixed by them on the understanding that they would have to pay a fixed court-fee of Rs. 15 only. The learned Subordinate Judge should have called upon the plaintiffs to value the relief sought by them under S. 7(1)(c), Court-fees Act, instead of ordering them to pay court-fee on Rs. 9,999. I am of opinion that opportunity should be given to them to value their relief. The order of the Subordinate Judge rejecting the plaint is set aside. He will call upon the plaintiffs to value the relief and to pay the ad valorem court-fee within a time to be fixed by him. The respondent is entitled to his costs of this appeal; hearing fee ten gold mohurs.

Mohamad Noor, J.

I agree