Summary
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 Court.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 plaint 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, referred to.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 to.(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 toThe Judgment of the Court was delivered byALAGIRISWAMI, 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 324See the full content of this document
Extract
Shamsher Singh VS. Rajinder Prashad & Ors.
PETITIONER: SHAMSHER SINGH Vs.RESPONDENT: RAJINDER PRASHAD & ORS.DATE OF JUDGMENT03/08/1973BENCH: ALAGIRISWAMI, A.BENCH: ALAGIRISWAMI, A.PALEKAR, D.G.CITATION: 1973 AIR 2384 1974 SCR (1) 322 1973 SCC (2) 524ACT: 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.JUDGMENT: 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 this a...
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