S. Sunder Singh vs Hira Singh and others

Khosla, J.—The only question for my decision in this case is whether for the purposes of court-fee the plaint of the petitioner is governed by the provisions of S. 7 (iv) (c), Court-fees Act, or by S. 7 (v). The facts briefly are that the plaintiff effected two alienations of his properties in favour of his son and nephews in 1935. The object of these alienations was to place his properties beyond the reach of his creditors. Possession of the properties sold was transferred to the alienees and these properties thereafter remained in their possession. The alienees, namely, defendants 1 to 3, later transferred these properties to defendants 4 and 5. The plaintiff then brought the present suit in which he alleged that the alienations effected by him were sham transactions and that the real title of the properties had throughout remained in him. He, therefore, sought a declaration that the two alienations effected by him were null and void and also prayed for possession of the properties in dispute by way of consequential relief. He also claimed a decree for the rendition of accounts. He valued his suit for purposes of jurisdiction at Rs. 5,100 with regard to the relief of declaration and Rs. 130 with regard to the rendition of accounts. He paid court-fee on the total amount, namely, on Rs. 5,230. The court fee was assessed under the provisions of S. 7 (iv) (c), Court-fees Act.

Objection was taken by the defendants on the ground that the substantive relief claimed by the plaintiff was possession of the properties and that he should, therefore, pay court-fee on the value of the properties in dispute. The trial Judge upheld this objection and directed the plaintiff to pay additional court-fee. The plaintiff has moved this Court on the revision side.

I have heard parties counsel at some length and have considered a number of cases cited before me. It seems to me that the cases in which a declaration together with a consequential relief is sought for fall into four different classes. In the first place a plaintiff may pray for a declaration of simple title and possession by way of consequential relief. In these cases it is clear that it is not necessary for the plaintiff to ask for a declaration of his title and that his real object in coming to Court is to get possession of property. A mere denial of the plaintiff''s title by the person in possession does not entitle the plaintiff to claim a declaration of his title. These are cases in which the plaintiff must sue for possession and must pay court-fee according to the provisions of S. 7 (v), Court-fees Act. There is no conflict of opinion regarding cases of this type.

The second class of cases arises when the plaintiff encounters some impediment in the form of a deed or decree which stands in the way of his getting possession of the property. In such cases he may ask for a declaration and for the cancellation of the decree or deed by way of consequential relief. These are clearly cases which fall under S. 7 (iv) (c), Court-fees Act, and since the cancellation of the decree or deed is a necessary consequence of the declaration that the decree of deed is inoperative, the plaintiff is entitled to say that the cancellation asked for is by way of consequential relief. This view was clearly expressed in Panapdassji v. Gopichand, A. I. R. 1941 Lah. 255: (196 I. C. 254) and in Mt. Rupia v. Bhatu Mahtin, A. I. R. (31) 1944 Pat. 17 : (22 Pat. 783 F. B.).

The third and fourth classes of cases are those in which the plaintiff also asks for the possession of the property by way of consequential relief. These cases are of two types, namely, where the deed is voidable and where the deed is void. There is a general consensus of opinion that where the plaintiff seeks to avoid a voidable transaction he can ask for possession of the property by way of consequential relief, for in a case of this type it is necessary for the plaintiff to have a declaration with regard to the effect of the voidable deed of transfer before he can claim possession. In AIR 1942 209 (Lahore) a Hindu son brought a suit for a declaration that a certain alienation effected by his father was not binding upon him because it had not been made for family necessity and consideration. The plaintiff also prayed for joint possession of the property sold. It was held that this was a case which fell under S. 7 (iv) (c), Court-fees Act. The case reported as Nokhelal Jha and Others Vs. Srimati Rajeshwari Kumari and Others, ) was somewhat similar. There a de facto guardian sold the property of a Hindu minor, and when the minor later brought a suit for a declaration that his title was not affected by the alienation in question and also prayed for possession of the property it was held that the alienation being voidable (and not void) the case fell under S. 7 (iv) (c), Court-fees Akhouri Bikramajit Persad and Others Vs. Girwar Prasad Narain Singh, is another authority for the same view. In this case a money decree was passed against a Hindu father and after his death the son was substituted in his place in the execution proceedings. Certain property was put up for sale and sold and possession was delivered to the auction-purchaser. The son brought a suit for possession of the property, alleging that the debt in respect of which the decree was passed was contracted for immoral purposes and therefore was not binding on him. It was held that as a decree passed by a competent Court was not void but voidable at the instance of the parties having the right to challenge it, the plaintiff could not claim possession without setting aside the sale or obtaining a declaration that it was not binding on him. In the circumstances the suit for possession involved, by necessary implication, a player for a declaration that the sale was not operative against him. The plaint in such a case was, therefore, held to be governed by S. 7 (iv) (c), Court-fees Act.

Finally there is the class of cases in which the alienation sought to be avoided is alleged to be null and void. In the present case the plaintiff''s allegation is that the two alienations effected by him were sham transactions and wholly null and void. In a case of this nature the plaintiff need not obtain any declaration with regard to the alienations and can bring a suit for possession simpliciter. Although there is some conflict on this point but the weight of authority seems to be in favour of the view that where an allegation is made in the plaint that a deed or transaction is null and void, the substantive claim is one for possession and the plaint cannot be valued under the provisions of S. 7 (iv) (c), Court-fees Act. In the Lahore case cited abov AIR 1942 209 (Lahore) Dalip Singh, J., on the question of court-fee made the following observation:

There is one exception to the above rule, namely, where on she allegation in the plaint itself the document, which is alleged to stand in his way, is not voidable but is void. In such a case, it is obvious that a prayer for a declaration that the document be declared void is a surplusage and the suit again remains a suit for possession.

The learned Judge made a clear distinction between documents which were void and which were merely voidable. In Mt Lagan v. Khakhan Singh, A. I. R. 1917 Pat. 103 (1) : (3 Pat. L. J. 92) it was held that where a plaintiff brings a suit for declaration that a document or decree is void or inoperative and also sues for possession he must pay court-fee on the actual value of the property. In Rup Narain and Others Vs. Bishwa Nath Singh, the case of a private sale of ancestral property effected by a Hindu arose. It was held that the plaintiff who seeks to avoid this sale need not ask for any other relief than possession of the property sold. Court-fee on the value of the property had, therefore, to be paid. I Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, it was held that where a plaintiff claims certain property as a reversionary heir of a deceased made after the death of his widow on the ground that the alleged gift by the widow is void, the suit is merely for possession, as the deed of gift can be ignored and there need be no suit or claim to have it set aside. In Waman Vinayak Paranjpe Vs. Narayan Hari, ) the plaintiff brought a suit for a declaration that a certain document was illegal and not binding upon him and also claimed possession of the property. From the judgment it appears that the plaint was not very happily drafted in that case, but the learned Judges held that S. 7 (iv) (c) did not apply as the plaintiff could have sued for possession of the property simpliciter.

Counsel for the petitioner cited Mahitish Mookherjee v. Satyaranjan, 53 C. W. N. 340 in support of the argument that even where a deed was alleged to be invalid on the ground of collusion and fraud the plaintiff could value his claim under S. 7 (iv) (c). In this case, however, the High Court ordered that the relief with regard to possession be revalued under the provisions of S. 7 (v) (a), Court-fees Act. The only case which appears to support the case of the petitioner is Mt. Ganga Det v. Sukhdeo Prasad, A. I. R. 1924 ALL. 612 : (47 ALL. 78) in which the plaintiff brought a suit for a declaration that a certain deed of gift executed in favour of the defendant was invalid and void and also asked for possession. Daniels, J., held that the suit fell under S. 7 (iv) (c). The appellant in that case was directed to pay additional court-fee. A number of other cases cited Radha Kanta Saha and Others Vs. Debendra Narayan Saha and Others, , Sahut Hamid Rowther v. Mohidin Pichai, A. I. R. 1948 Mad. 451 : ( I. L. R. (1948) Mad. 883), Saraju v. Soraj, A. I. R. 1926 Oudh 380 : (91 I. C. 179) and Awadh Raj v. Dharamraji, A. I. R.) 1929 Oudh 419 : (5 Luck. 98) do not support the learned counsel''s contention, and need not be discussed.

I am, therefore, of the view that in a case where the plaintiff makes an allegation that a certain deed is null and void and prays for a declaration to this effect he cannot sue for possession of the property involved by way of consequential relief. It is not necessary for him to get a declaration at all and he can bring a suit for possession simpliciter. He cannot, therefore, value his plaint under the provisions of S. 7 (vi) (c) and must pay court-fee on the value of the property involved.

The trial Court, therefore, came to the correct conclusion in directing the plaintiff to pay additional court-fee, and upholding this view I dismiss the revision petition. I, however, make no order as to costs in the circumstances of the case.