State of U.P. Vs. Ram Krishan Burman
& Ors  INSC 260 (26 September 1969)
26/09/1969 SHAH, J.C.
CITATION: 1971 AIR 87 1970 SCR (2) 588 1970
SCC (1) 80
Court Fees Act, 1870 (7 of 1870), s. 7 (iv-A)
inserted by U.P. Legislature--A decree for a mere declaration of title to
property whether a decree 'for money or other property' or an instrument
securing money or other property' within meaning of section--Undesirability of
prolonging litigation by raising pleas without merit.
As the reversioner of a Hindu widow's estate
one 'R' instituted suit No. 4 of 1950 in the court of the Civil Judge Jaunpur,
for a declaration that he was the 'owner in possession' of the said estate. 'B'
who claimed to be an heir of the widow was impleaded as a party defendant.
The suit was decreed ex-parte. 'B' then filed
suit No. 14 of 1956 in the same court against the heirs of 'R' who died after
the, passing of the decree in his suit. In suit No., 14 of 1956 'B' claimed that
as heir of the said widow he was entitled to her stridhuna properties. He
averred that in suit No. 4 of 1950 'R' had arrived at an oral compromise with
him promising him 5/16th share in the, whole estate.;
that the oral compromise was later reduced into
a memorandum; that 'R' had represented to him that a compromise decree would be
obtained in the suit; and that taking advantage of his ignorance 'R' had
obtained an ex- parte decree against him. On these allegations 'B' prayed that
he be declared the owner of all the properties left by the widow, and in the
alternative he be declared owner of her stridhan properties, the decree in suit
No. 4 of 1950 having no adverse effect on his rights. On the footing that he
had claimed a mere declaration 'B' paid Rs. 18/12/- as court-fees as in a claim
under Sch. II cl. 17(iii) of the Court Fees Act. The Inspector of Stamps,
however, reported to the Civil Judge that in his view the case fell within s.
7(iv-A) of the Act as incorporated therein by the U.P. State Legislature and
court fee was payable on the value of the subject-matter of the suit. The Civil
Judge ordered the plaintiff to amend the plaint and pay the court fee remaining
due. In appeal the High Court decided in favour of the respondent. The State of
U.P. appealed. It was contended on behalf of the appellant: (i) that the
plaintiff sought a declaration adjudging void the decree in suit No. 4 of 1950
which was a decree "for money or other property" within the meaning
of s. 7(iv-A) since that expression must include a decree concerning or
relating to money or other property, (ii) that in any case the decree in suit
No. 4 was an 'instrument' securing money or other property having market value
and s. 7(iv-A) was therefore attracted; (iii) that the relief for declaration
was a mere device intended to conceal the true purport of the claim.
HELD: The appeal must be dismissed.
(X) A decree for declaration of title to
money or other property is not a decree for money or property. The expression
"decree for money or other property" means only a decree for recovery
of money or other property. It does not include a decree concerning title to
money or other property. [592 E-F] (ii) A decree ad invitum is not an
instrument securing money or other property: such a decree is a record of the
formal adjudication of the 589 court relating to a right claimed by a party to
It does not by its own force secure money or
property. [592 G] (iii) The relief for declaration was not a mere device or
subterfuge intended to conceal the true purport of the claim for the property
in dispute was in the possession of the District Magistrate, and if the Civil
Court declared the plaintiff's title he would be entitled to secure recognition
of his rights by the District Magistrate. [593 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 444 of 1966.
Appeal by special leave from the judgment and
order dated October 9, 1963 of the Allahabad High Court in F.A.F.O. No. 268 of
N.D. Karkhanis and O.P. Rana, for the
R. Gcpalakrishnan, for respondents Nos. 1
(i), to (iv), (vii) and (xi), The Judgment of the Court was delivered by Shah,
J. One Radhey Lal instituted Suit No. 4 of 1950 in the Court of the Civil
Judge, Jaunpur, for a declaration that he was the "owner in possession"
of the estate left by Dhan Devi. To that suit Ram Krishan Burman was impleaded
as a party-defendant. This suit was decreed ex parte. Ram Krishan then filed
Suit No. 14 of 1956 in the Court of the Civil Judge, Jaunpur, against the heirs
of Radhey Lal (who had died since the passing of the decree in Suit No. 4 of
1950), claiming that he was "appointed an heir by Dhan Devi" of
properties described in lists B, J & D in the plaint, that the dispute
concerning the inheritance to the estate left by Dhan Devi was settled between
him and Radhey Lal, that Radhey Lal admitted his title to the properties in
Lists B, J & D and it was agreed that in the properties in Lists A, B, J
& D Radhey Lal had 11/16th share and that he had 5/16th share, that a
memorandum was drawn up in that behalf, and that Radhey Lal represented to him
that a compromise decree will be obtained in that suit, but thereafter taking
advantage of his ignorance Radhey Lal obtained a decree ex parte. The following
substantive reliefs were claimed by the plaintiff:
"(a) that a declaratory decree in favour
of the plaintiff and against the defendants declaring the plaintiff as the
owner of the properties in Lists, A, B, J & D be passed;
(b) in case in the opinion of the Court
prayer (a) cannot be granted, then, alternatively, declaration declaring the
plaintiff as the owner of properties in B, J and D being the stridhana of Rani
Dhan Dai Kaur be 590 issued, decree in Suit No. 4 of 1950 has no adverse effect
on the rights of the plaintiff;" The plaintiff valued the properties in
dispute at Rs.
5,99,503/6/3, but on the footing that he had
claimed a mere declaration paid Rs. 18/12/0 as. court-fees as in a claim under
Sch. II el. 17(iii) of the Court-Fees Act.
The Inspector of Stamps reported to the Civil
Judge that in his view the case fell within s. 7(vi-A) as incorporated by the
U.P. State Legislature, and court-fee was chargeable according to the value of
the subject-matter, and the plaintiff was liable to pay Rs. 3,528/8/- as
court-fee on the plaint. The Civil Judge ordered the plaintiff to amend the
plaint and to pay the court-fee remaining due.
The plaintiff appealed against the order of
the Civil Judge to the High Court of Allahabad. The High Court held that the
court-fee paid by the plaintiff was proper, and set aside the order holding
that the case did not fall within s.
(iv-A) of the Court Fees Act. The State of
U.P. has appealed to this Court with special leave.
Section 7 (iv-A) of the Court-Fees Act as
enacted by the U.P. State Legislature, insofar as it is relevant, reads:
"In suits for or involving cancellation
of or adjudging void or voidable a decree for money or other property having a
market value, or an instrument securing money or other property having such
(1) where the plaintiff or his
predecessor-in-title, was a party to the decree or the instrument, according to
the value of the subject-matter, and There is no dispute that the plaintiff
claimed a declaration adjudging void the decree in Suit No. 4 of 1950 declaring
Radhey Lal box be the "owner in possession of the estate of Dhan
Devi". The plaintiff by his plaint had claimed two declarations in the
alternative, and prima facie, the plaint was of the description in Sch. II CL
17(iii) of the Court- Fees Act. But counsel for the State of U.P. contends that
the reliefs claimed fell within s. 7(iv-A) of the Court-Fees Act. Counsel says
that the expression "decree for money or other property" does not
mean a decree awarding money or other property, but a decree concerning or
relating to money or other property, and he says that where the Court declares
the plaintiff's title to money or property simpliciter, the decree is one for
money or for other property. We are unable to 591 agree with that contention.
The expression "for" occurs twice in the opening part of the clause.
Evidently the expression "for" when it occurs for the first time
means "for obtaining a decree ordering (payment or recovery of)".
The expression "for" also occurs in
several other clauses of the Court-Fees Act. In s. 7 of the Court-Fees Act as
amended by the U.P. Legislature which deals with computation of court-fee
payable in certain classes of suits, following clauses occur:
"(i) In suits for money (ii) (a) In
suits for maintenance and annuities or other sums payable periodically :-- (b)
In suits for reduction or enhancement of maintenance and annuities or other
sums payable periodically- (iii) In suits for movable property other than
money, where the subject-matter has a market value-- (iv) In suits (b) for accounts
(iv) B. In suits-- (a)for a right to some .... to arise out of land.
(iv) C. In suits-- (a) for the restriction of
conjugal fights, (b)for establishing or annulling or dissolving a marriage, (c)
for establishing a fight to the custody or guardianship of any person.
(v) A. In suits for possession ....
(v) B. In suits for possession between rival
(vi) A. In suits for partition.
(vii) In suits for the interest of an
assignee of land:' revenue.
(ix) In suits against a mortgage for the
recovery of the property mortgaged.
(x) In suits for specific performance-- 592
(xi) In the following suits between landlord and tenant-- (a)for the delivery
by a tenant of the counter-part lease, (c) for the delivery by a landlord of a
lease, (cc) for the recovery of immovable property from a tenant.
(f) for abatement of rent, (g) for
commutation of rent, In all these clauses the expression "for" is
used as meaning "for obtaining a decree ordering (payment or recovery
If the expression "for" occurring
for the first time in s. 7 (iv-A) means in the context in which it occurs
obtaining a decree for cancellation of or adjudging void or voidable a decree,
it would be difficult to hold that the expression "decree for money or
other property" has a wider connotation and means a decree which concerns
or relates to money or other property.
A decree for declaration of title to money or
other property is not a decree for money or other property. In our judgment the
expression "decree for money or other property" means only a decree
for recovery of money or other property. It does not include a decree
concerning title to money or other property.
It was urged that in any event the plaintiff
had sued for adjudging void or voidable an "instrument" securing
money or other property having market value. But a decree in invited is not an
instrument securing money or other property: such a decree is a record of the
formal adjudication of the Court relating to a right claimed by a party to a
suit. It does not by its own force secure money or property. A consent decree
in certain cases may be regarded as an instrument securing money or other
property, where the decree proceeds upon a contract which had that effect, but
that is only because a consent decree is a record of the contract between the
parties to which is superadded the seal of the Court. In our view the High
Court was right in holding that the court-fee paid on the plaint was proper. It
may be pointed out that the plaintiff had claimed nothing more than a
declaration with regard to certain properties.
593 We are also unable to accept the
contention of counsel for the State that the relief for declaration was a mere
device or subterfuge intended to conceal the true purport of the claim. It iS
evident that the District Magistrate, Jaunpur was in possession of the property
in dispute and if the civil court declared the title of the plaintiff, he would
be entitled to secure recognition of his rights.
Before parting with the case we must observe
that we have felt greatly perturbed by the course which this litigation has
taken. The suit was filed in 1956. And after 13 years only the question of
court-fee payable on the plaint is decided. In the meanwhile the original
plaintiff died. The delay is largely attributable to the rigid attitude of the
State which has by insisting upon a comparatively small claim, held up the
proceedings for all these long years by raising contentions which had no merit.
We trust the Court of First Instance will
take up this suit for hearing with the least practicable delay and dispose of
the suit according to law. The State to pay in this appeal the costs of the
heirs of the original plaintiff.
G.C. Appeal dismissed.