Surendra Narain Singh vs Shambihari Singh

Plaintiffs 1 to 4 are sons of defendant No. 2 who is a brother of defendant No. 1, Plaintiffs 5 to 7 are their female relations. Defendants 1 and 2 were sued in respect of a handnote executed by them in favour of the principal defendants, who obtained an ex-parte decree in execution of which they attacked and sold the joint-family property.

In this suit the plaintiffs challenge the validity of the handnote, the decree, the attachment and the sale, both as a whole and so far as the attachment and sale affect the shares of all the members of the joint family except defendants 1 and 2. The formal reliefs claimed are:-

"(1) That it may be declared that the property in suit is the joint family property of the plaintiffs and pro forma defendants and that it is not the exclusive property of the pro forma defendants and that the plaintiffs'' shares in the said property are 13 annas 1-pie 8-15 karant, and that these shares are not liable, for the payment of the said decree, and the said attachment, and the sale are null and void to the extent of the shares of the plaintiffs, and the principal defendants have acquired no title by the said auction purchase in the entire property in suit and that they have purchased only the right, title and interest of the pro forma defendants 1 and 2, 2 annas 10 pies 7-15 karant shares of the property.

"(2) That any further reliefs to which the plaintiff may be entitled may be granted to them."

The plaintiffs valued the reliefs sought at Rs. 29,000 but paid a court fee of Rs. 10 as on a suit for a declaration. They secured from the lower court an order staying delivery of possession of the property to the defendants-purchasers pending the disposal of the suit.

The court held that the plaint was sufficiently stamped as a suit for a mere declaration and relied upon Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon (1907) 30 Mad. 18 but on the merits dismissed the suit. The plaintiffs appeal.

On behalf of the revenue it is contended that the suit as framed is one for a declaratory decree and consequential relief and falls u/s 7 (IV) (c) of the Court-Fees Act, so that an ad valorem fee is payable.

On behalf of the appellants it is urged that the prayer is merely one for a declaration and it is admitted that in an attempt to save court-fee the plaint was framed on the lines of the case reported in Zinnatunnessa Khatun v. Girindra Nath Mukerjee (1903) 30 Cal. 788. The question, therefore is, whether in the words of Jenkins, C. J., in Deokali Kuer v. Kadar Nath (1912) 39 Cal. 704, the attempted evasion of the statutory provision as to court-fee is successful.

The proposition, that the mere fact that the prayer is cast in the form for a declaration does not necessarily mean that it is not in fact a prayer for consequential relief and that ad Valorem court-fee has not to be paid, is well established [Order of tile Taxing Judge, dated the 14th January, 1920, in Kant Kamal Mukhi Kuar v. Udit Narain Singh F. A. No. 102 of 1920.]

In the present case it is to be observed that by an order staying delivery of possession the plaintiffs practically obtained a relief in the suit. But apart from that, they came into court to meet the challenge thrown upon their title. Inter alia they pray that it be declared that their shares are not liable for the payment of the said decree and the said attachment and safe are null and void to the extent of their shares. It is clear that if they had not made this prayer, their suit could not have been entertained by reason of the proviso to section 42 of the Specific Relief Act.

Thus, the suit is not one for a mere declaration, but the relief No. 1 implies consequential relief without which claim, the prayer for declaration would have been unentertainable under the provisions of section 42.

The only difference between Lachmi Narain v. Gauri Shanker (1886) 6 A. W. N. 54 and the sent case is that the prayer for injunction was, in the Allahabad case made in the plaint, whereas in the present instance the prayer in the plaint is that the plaintiffs'' shares are not liable for the payment of the said decree, and the said attachment and sale are null and void to the extent of the shares of the plaintiffs", the stay of sale being obtained by an order in the suit. This difference is immaterial.

In Deokeali Koer v. Kedarnath (1912) 39 Cal. 704 the prayer for a temporary injunction granted in the suit was held by Jenkins, C. J. to be a consequential relief. The case is similar to Bankey Behari v. Ram Bahadur (1919) 4 Pat. L. J. 191 in which the plaint framed on the same lines as the plaint under consideration, was held by the court to constitute a suit for a declaratory decree with a consequencetial relief.

As regards the ruling in Chinyacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon (1) it is sufficient to state that it is contrary to the view taken by the Taxing Judge in Mussammat Noowooagar Ojain v. Shidhar Jha (1918) 3 P. L. J. 194. Chief reliance is placed upon Zinnatunnessa Khatun v. Girindra Nath Mukherjee (1903) 30 Cal. 788 and it is urged that it is not correct to say that this case has been superseded by Deokali Koer v. Kedaranath (1912) 39 Cal. 704.

But the latter ruling has been followed in many cases in this court while the case upon which Zinnatunnetsa Khatun v. Girendra Nath Mukherjee (1903) 30 Cal. 788 is based, namely, Shrimant Sagajirao Khanaderao Naik Nimbalkar v. S. Smith (1896) 20 Bom. 736 has itself not been followed by the Taxing Judge of this court. It also seems to ignore the provisions of section 42 of the Specific Relief Act.

It appears to me that the plaintiffs cannot evade the payment of ad valorem court-fee by reason of the form into which they have thrown their plaint. That is to say, their device is unsuccesful. Accordingly I hold that the appellants must pay the deficit court-fee of Rs. 945, that is, the difference between the ad valorem fee of Rs. 955 on jurisdiction valuation of Rs. 29,000 and the fee of Rs. 10 paid on the memorandum of appeal. The payment should be made by the 8th of January. The question of payment of the deficit on the plaint will be considered after the realization of the deficit court-fee on the memorandum of appeal.

Das and Bucknill, JJ.-The view taken by the learned Registrar is entirely correct. The Appellant must make good the deficiency within a month from to-day. If the deficiency is not made good within a month from to-day, let the matter be put up to the Bench for disposal.