Shamsher Singh Vs. Rajinder Prashad
& Ors  INSC 129 (3 August 1973)
CITATION: 1973 AIR 2384 1974 SCR (1) 322 1973
SCC (2) 524
Hindu Law-Joint Hindu family-Whether sons are
liable for the debts of the father incurred without consideration and family
necessity-Court Fees Act S. 7(iv)(7)-Its scope.
There was a mortgage of a property in favour
of the appellant for a sum of Rs. 15,000/-. The mortgagee filed a suit and
obtained a decree. When he tried to take out execution proceedings for the sale
of the mortgaged property, respondents 1 and 2 filed a suit for a declaration
that the mortgage executed by their father was null and void as against them.
as the property was a joint Hindu family property and the mortgage had been
effected without consideration and family necessity. The plaintiffs (Respondent
1 and 2) paid a Court Fee of Rs. 19.50 and the value of the suit for purposes
of jurisdiction was given as Rs. 16,000/-.
A preliminary objection was raised by the
Appellant that the suit was not properly valued for purposes of Court Fee and
jurisdiction. The Subordinate Judge held that although the case is 'covered by
S.7(iv)(c) of the Court Fee Act, the proviso to that Section applied and directed
the plaintiffs to pay Court. Fee on the value of Rs. 16,000/-. Thereafter, the
Court Fee not having been paid, the plaint was rejected.
The plaintiff appealed before the High Court
against that decision. The High Court held against the defendants taking the
view that the plaintiffs were not at all bound by the mortgage in dispute since
it was a joint family property.
The first defendant appealed before this
In this Court, preliminary objection were
raised that the present appeal is not competent and secondly, the plaintiffs
were not bound by the mortgage ,of the joint Hindu family property where there
was no legal necessity to execute the mortgage. Allowing the appeal,
HELD (i) in the present case, the plaint was
rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree
under S.2(ii) and there is a right to appeal open to the plaintiff.
Furthermore, in a case in which. this Court has granted special leave, the
question whether an appeal lies or not, does not arise. Even otherwise, a
second appeal would lie under S.100 of the C.P.C. on the ground that the
decision of the 1st appellate Court on the interpretation of S.7(iv)(c) is a
question of law. There is thus no merit in the preliminary objection. [324E-G]
Vasu v. Chakki Mani (A.I.R. 1962 Kerala 84 referred to).
Rathnavarmaraja v. Smt. Vimla, A.I.R. 1961
S.C. 1299 referred to and distinguished.
(ii) While the Court Fee payable on a plaint
is certainly to be decided on the basis of the allegations and the prayer in
the plaint and the question whether the plaintiff's. suit will have to fail for
failure to ask for consequential relief is of no concern to the Court question
of Court Fee, should look into at that stage, the Court in deciding the
allegations in the plaint to see what the substantive relief that is asked for
Mere cleverness in drafting the plant will not be allowed to stand in the way
of the Court looking at the substance of the relief asked for. In the present
case, the relief asked for is on the basis that the property in dispute is a
joint Hindu family property and there was no legal necessity to execute the
mortgage. It is now well settled that under Hindu Law, if the manager of a
joint family is the father and the ,other members are sons, the father may,
incur a debt, so long as it is not for immoral purposes and the joint family
estate is open to be taken in execution ,of proceedings upon a decree for the
payment of the debt. [324G-3250] Fakir Chand v. Harnam Kaur 1967 1 S.C.R. 68,
323 (iii) In the present case, when the
plaintiffs sued for a declaration that the decree obtained by the appellant
against their father was not binding on them, they were really asking for
setting aside the decree or for the consequential relief of injunction
restraining the decree holder from executing the decree against the mortgaged
property. [325B-C] In deciding whether a suit is purely declaratory, the
substance and not merely the language or the form or relief claimed should be
considered. [325G] Zeb-ul-Nisa v. Din Mohammad, A.I.R. 1941 Lahore 97 referred
(iv) In a suit by the son for a declaration
that the mortgage decree obtained against his father is not binding upon him.
it is essential for the son to ask for setting aside the decree as a
consequence of the declaration claimed and to pay ad velorem Court fee under s.
7(iv)(c). A decree against the father is a good decree against the son and
unless the decree is set aside, it will remain executable against the son and
it is essential for the son to ask to set aside the decree.
Further, in a suit by the son for a
declaration that a decree against the father, does not affect his interest in
the family property, consequential relief is involved and ad velorem Court fee
is necessary. [326F-G] Prithvi Rai v. D. C. Ralli, A.I.R. 1945 Lahore 13, and
Vinayakrao v. Mankunwar Bai, A.I.R. 1943 Nagpur 70, referred to The Judgment of
the Court was delivered by ALAGIRISWAMI, J.-This appeal raises the, question of
the court fee payable in the suit filed by the 1st respondent and his minor
brother the 2nd respondent against their father the 3rd respondent and the
alienee from him the appellant.
On 13-7-1962 the father executed a mortgage
deed in favour of the appellant of a property of which he claimed to be the
sole owner for a sum of Rs. 15,000/-. The mortgagee, the appellant filed a suit
on the foot of this mortgage and obtained a decree. When he tried to take out
execution proceedings for the sale of the mortgaged property, respondents 1 and
2 filed a suit for a declaration that the mortgage executed by their father in
favour of the appellant is nun and void and ineffectual as against them as the
property was a joint Hindu family property, and the mortgage had been effected
without consideration and family necessity. On this plaint the plaintiffs _paid
a fixed court fee of Rs. 19.50 and the value of the suit for purposes of
jurisdiction was given as Rs. 16,000. A preliminary objection having been
raised by the appellant that the suit was not properly valued for purposes of
court fees and jurisdiction, the Subordinate Judge tried it as a preliminary
issue. He held that although the case is covered by section 7(iv) (c) of the
Court Fees Act, the proviso to that section applied and directed the plaintiffs
to pay court fee on the value of Rs. 16,000 which was the amount at which the
plaintiff-, valued the suit for the purposes of jurisdiction. The court fee not
having been paid the plaint was rejected. The plaintiffs thereupon carried the
matter up on appeal before the High Court of Punjab & Haryana. Before that
Court the plaintiffs did not seriously contest the position that the
consequential relief of setting aside the decree within the meaning of Section
7 (iv) (c) of the Court Fees Act was inherent in the declaration which was
claimed with regard to the decree.
But taking the view that the plaintiffs were
not at all bound by the mortgage in dispute or the decree, the High 324
CRIMINAL APPELLATE JURISDICTION:
Court held that there was no consequential
relief involved since neither the decree nor the alienation binds the
plaintiffs in any manner. The 1st defendant in the suit has, therefore, filed
Before us a preliminary objection was raised
based on the observations of this Court in Raihnavaramaraja v. Smi. Vimla (1)
that the present appeal is not competent. In that case this Court observed that
whether proper court-fee is paid on a plaint is primarily a question between
the plaintiff and the State and that the defendants who may believe and even
honestly that proper court-fee has not been paid by the plaintiff has still no
right to move the superior courts by appeal or in revision against the order
adjudging payment of court-fee payable on the plaint. But the observations must
be understood in the background of the facts of that case. This Court was there
dealing with an application for revision filed before the High Court under s.
115 of the Code of Civil Procedure and pointed out that the jurisdiction in
revision exercised by the High Court is strictly conditioned by clauses (a) to
(c) thereof and may be invoked on the ground of refusal to exercise
jurisdiction vested in the Subordinate Court or assumption of jurisdiction
which the court does not possess or on the ground that the Court has acted
illegally or with material irregularity in the exercise of its jurisdiction,
and the provisions of ss. 12 and 19 of the Madras Court Fees Act do not arm the
defendant with a weapon of technicality to obstruct the progress of. the suit
by approaching the High Court in revision against an order determining the
court fee payable. The ratio of that decision was that no revision on a
question of court fee lay where no question of jurisdiction was involved. This
decision was correctly interpreted by the Kerala High Court in Vasu v. Chakki
Mani(2)where it was pointed out that no revision will lie against the decision
on the question of adequacy of courtfee at the instance of the defendant......
unless the question of court fee, involves also the question of jurisdiction of
the court. In the present case the plaint was rejected under Order 7, Rule 1 1
of the C.P.C. Such an order amounts to a decree under section 2(2) and there is
a right of appeal open to the plaintiff. Furthermore, in a case in which this
Court has granted special leave the question whether an appeal lies or not does
not arise. Even otherwise a second appeal would lie under section 100 of the
C.P.C. on the ground that the decision of the 1st Appellate Court on the
interpretation of s. 7(iv) (c) is a question of law. There is thus no merit in
the preliminary objection.
As regards the main question that arises for
decision it appears to us that while the court-fee payable on a plaint is
certainly to be decided on the basis of the allegations and the prayer in the
plaint and the question whether the plaintiff's suit will have to fail for
failure to ask for consequential relief is of no concern to the court at that
stage the court in deciding the question of court-fee should look into the
allegations in the plaint to see what is the substantive relief that is asked
for Mere astuteness in drafting the plant will not be allowed to stand in the
way of the court looking at the substance of the relief asked for. In this case
the relief asked for is on the basis that the property in dispute is a joint
Hindu family property and there was no legal necessity (1) A. I. R. 1961 S. C.
(2) A. I. R. 1962 Kerala 84.
325 to execute the mortgage. It is now well
settled that under Hindu Law if the manager of a joint family is the father and
the other members are the sons the father may by incurring a debt so long as it
is not for an immoral purpose, lay the joint family estate open to be taken in
execution proceedings upon a decree for the payment of the debt not only where
it is an unsecured debt and a simple money decree for the debt but also to a
mortgage debt which the father is personally liable to pay and to a decree for
the recovery of the mortgage debt by the sale of the property even where the
mortgage is not for legal necessity or for payment of antecedent debt (Faqir
Chand v. Harnam Kaur(1). Consequently when the plaintiffs sued for a
declaration that the decree obtained by the appellant against their father was
not binding on them they were really asking either for setting aside the decree
or for the consequential relief of injunction restraining the decree holder
from executing the decree against the mortgaged property as he was entitled to
do. This aspect is brought out in a decision of the Full Bench of the Lahore
High Court in Zeb-ul-Nisa v. Din Mohammad(2)where it was held that :
"The mere fact that the relief as stated
in the prayer clause is expressed in a declaratory form does not necessarily
show that the suit is for a mere declaration and no more. If the relief so
disclosed is a declaration pure and simple and involves no other relief, the
suit would fall under Art.
17(iii)." In that case the plaintiff had
sued for a twofold declaration : (i) that the property described in the plaint
was a waqf, and (ii) that certain alienations thereof by the mutwalli and his
brother were null and void and were ineffectual against the waqf property. It
was held that the second part of the declaration was tantamount to the setting
aside or cancellation of the alienations and therefore the relief claimed could
not be treated as a purely declaratory one and inasmuch as it could not be said
to follow directly from the declaration sought for in the first part of the
relief, the relief claimed in the case could be treated as a declaration with a
"consequential relief." It was substantive one in the shape of
setting aside of alienations requiring ad valorem court-fee on the value of the
subject matter of the sale, and even if the relief sought for fell within the
purview of s. 7 (iv) (c) of the plaintiffs in view of ss. 8 and 9, Suits
Valuation Act, having already fixed the value of the relief in the plaint for
purposes of jurisdiction were bound to fix the same value for purposes of
court-fee. It was also pointed out that in deciding whether a suit is a purely
declaratory, the substance and not merely the language or the form of the
relief claimed should be considered. The court also observed :
"It seems to me that neither the answer
to the question whether the plaintiff is or is not a party to the decree
"or the deed sought to be declared as null and void, nor to--the question
whether the declaration sought does or does not fall within the purview of s.
42, Specific Relief Act, furnishes a satisfactory or conclusive test for
determining the court fee payable (1)  (1) S.C.R. 68.
(2) A. I. R.  Lahore 97.
326 in the suit of this description. When the
plaintiff is a party to the decree or deed, the declaratory relief, if granted,
necessarily relieves the plaintiff of his obligations under the decree or the
deed and, hence it seems to have been held in such cases, that the declaration
involves a consequential relief. In cases where the plaintiff is not a party to
the decree or the deed. tile declaratory relief does not ordinarily include any
such consequential relief. But there are exceptional cases in which the
plaintiff though not a party to the deed or the decree is nevertheless bound
thereby. For instance, when a sale or mortgage of joint family property is
effected by a manager of a joint Hindu family, the alienation is binding on the
other members of the family (even if they are not parties to it) until and
unless it is set aside.
Similarly, a decree passed against the
manager will be binding on the other members of the If therefore a copartner sues
for a declaration that such an alienation or decree is null and void, the
declaration must I think be held to include consequential relief in the same
may as in those cases in which the plaintiff is himself a party to the
alienator, or the decree, which is sought to be, declared null and void. The
case dealt with in AIR 1936 Lah 166 seems to have been of this description. The
case of an alienation by a mutwalli of waif property would also appear to stand
on a similar footing. In the case of waif property, it is only the trustee or
the mutwalli who can alienate the property. If he makes an alienation it is
binding on all concerned, until and unless it is set aside.
If therefore a person sues to get such an
alienation declared null and void, lie can only do so by getting the deed
invalidated. The relief claimed in such cases also may therefore be found to
include a consequential relief." The decision of the Lahore High Court in
Prithvi Raj v. D.C. Ralli (1) is exactly in point. It was held that in a suit by
the son for a declaration that the mortgage decree obtained against his father
was not binding upon him it is essential for the son to ask for setting aside
of the decree as a consequence of the declaration claimed and to pay ad valorem
court fee under s. 7(iv)(c). It was pointed out that a decree against the
father is a good decree against the, son and unless the decree is set aside it
would remain executable against the son, and it was essential for the, son to
ask for setting aside the decree. In Finayakrao v.Mankunwarbai(2) it was held
that in a suit by the son for a declaration that decree against the father does
not affect his interests in the family property, consequential relief is
involved and ad valorem court fee would be necessary.
We should now refer to certain decisions
relied upon by the respondents. We do not consider that the decision of the
learned Single Judge of the Madras High Court in Venkata Ramani v.
Mravanaswami(3) lays down the correct law. It proceeds on the basis that (1)
A.I.R. 1945 Lahore 13.
(2) A.I.R. 1943 Nagpur 70.713.
(3) A.I.R. 1925 327 the plaintiffs not being
parties to the document they were not bound to get rid of it by having it
actually cancelled, but it ignores the effect of Hindu Law in respect of a
mortgage decree obtained against the father. As pointed out by the Lahore High
Court, in such cases in suing for declaration that the decree is not binding on
him the son is really asking for a cancellation of the decree. This aspect does
not seem to have been taken into consideration by the learned Single Judge. The
decision of a learned Single Judge of the Nagpur High Court in Pandurang Mangal
v.Bhojalu Usanna(1) suffers from the same error. Though it refers to the
decision of the Full Bench of the Lahore High Court as well as the same High,
Court's decision in Prithvi Raj v. D. C. Ralli(2) it does not seek to
distinguish them for holding otherwise. The learned-Judge gives no reason
whether and if so why he dissents from the view taken in the latter case. This
decision also suffers from the learned Judge's misapprehension that there is a
difference between a simple money decree and a mortgage decree. obtained
against a Hindu father when it is questioned by the son and its view that in
execution of a simple money decree the entire joint family property, inclusive
of the interest of the sons, is liable to be sold in execution of the decree,
but that in the case of a mortgage decree it is not necessary for a son to
allege or prove that the debt was incurred for an illegal or an immoral purpose
and he can succeed if it is proved that the mortgage was not for legal
necessity or for the payment of antecedent debt. We have already referred to
the decision of the Court on this point. We must also hold in view of the
reasons already set forth that the decision of the Allahabad High Court in
Ishwar Dayal v. Amba Prasad (3) is not a good law. As regards the decision of
the Full Bench of the Allahabad High Court in Bishan Sarup v. Musa Mal(4) there
is nothing to show whether the alienation was made by the manager of a joint
Hindu family and therefore the decision is not in point.
We, therefore, hold that the decision of the
High Court was not correct and allow this appeal with costs. The plaintiffs
would be given a month's time for paying the necessary court fee.
(1) A.I.R. 1949 Nagpur 37.
(2) A.T.R. 1945 Lahore 13.
(3) A.T. R. 1935 Allahabad 667.
(4) A.I.R. 1935 Allahabad. 817.