1. This case had been referred for opinion to this Full Bench on the assumption that there appears to be a conflict of views between the Special Bench case of Baldeo Singh v. Gopal Singh, 1967 MPLJ 242 = (AIR 1967 Madh Pra 221) (SB) on the one hand and the other earlier Division Bench cases, namely, Dattaji Parashramji Patil v. Mst. Bhagirathi, ILR (1939) Nag 373 = (AIR 1938 Nag 183), Ratansingh v. Raghuraisingh, ILR (1945) Nag 975 = (AIR 1946 Nag 30), Dipchand Balchand v. State of M.P., 1957 MPLJ 46, Badrilal Bholaram v. State of M.P. 1963 MPLJ 717 = (AIR 1964 Madh Pra 9) and Komalata Dutta v. Ishwar Industries Ltd., 1964 MPLJ 553 = (AIR 1966 Madh Pra 169). At the outset we may observe that there is no such conflict of views and the Special Bench case of 1967 MPLJ 242 = (AIR 1967 Madh Pra 221) (SB) (supra) is distinguishable on facts. However, we propose to answer the question of court-fees that arises for consideration in the present case.
2. The Division Bench has not framed any question on which our opinion is sought. We would frame the question later. The necessary facts in order to appreciate the question are as follows: One Jethmal, who owned the suit property which was his exclusive and self-acquired property, died on 3-3-1947 leaving behind his widow -- Mst. Jhannobai, who herself having been one of the defendants, died during the pendency of the suit. Jethmal had adopted Tekchand alias Chandmal as a son during his lifetime. In addition Jethmal left behind a daughter, by name, Smt. Gyansundarbai. Tekchand's wife, Mst. Tarabai, was also impleaded as a party. These three persons are defendant-respondents, Smt. Gyansundarbai having been impleaded in place of her mother, Mst. Jhannobai. During Jethmal's lifetime he had made a family arrangement whereby an amount of Rs. 12,000/- was paid to her and the rest of the property was given to Tekchand and the three sons of Tekchand, who are defendant No. 2 and plaintiff-appellants.
3. The further facts are that as there were disputes between the adopted son, Tekchand and the adoptive mother, Mst. Jhannobai, she filed Civil Suit No. 34-A of 1959 for partition and separate possession of her share despite the fact that Jethmal during his lifetime had made a family arrangement. A preliminary decree was passed in her favour on 27-3-1962 and subsequently it was made final on 19-11-1962. It is not disputed that the said decree has been executed fully and Smt. Jhannobai and Tekchand have been placed in possession of their respective shares.
4. On 14-3-1963 the present appellants, who all are sons of Tekchand, filed the present suit for a declaration and injunction contending that they are not bound by the decree for partition passed in Civil Suit No. 34-A of 1959. According to them, the family arrangement effected by Jethmal during his lifetime was a complete partition and they (plaintiffs) and their father, Tekchand had been allotted the property in lieu of their share in the joint family property which Jethmal had received in a partition between himself and his other brothers. For this reason it was contended that Tekchand could not have represented his minor sons in the partition suit and his sons got the property from their grandfather Jethmal in their own right. It was also contended that as a result of the partition between Jethmal and his brothers, he held the family property as his separate property and in addition he also held self-acquired property, which is the subject-matter of the suit. The title of the plaintiffs having accrued in pursuance of the family arrangement during the lifetime of Jethmal, the plaintiffs derived their title independently and in no sense could Tekchand represent the plaintiffs in the partition suit between himself and Mst. Jhannobai. On these allegations the plaintiffs sought the following reliefs:--
'The plaintiffs, therefore, pray that it be declared that the defendant No. 1 (Smt. Jhannobai now represented by Smt. Gyansundarbai) had no right whatsoever to the two houses mentioned in para 2 above and the decree obtained by the defendant No. 1 in Civil Suit No. 34-A of 1959 is not binding on the plaintiffs and is illegal and ineffective and inoperative so far as the plaintiffs are concerned, and she be restrained by an injunction from claiming partition of the same in the decree in Civil Suit No. 34-A of 1959, dated 23-7-1962, of the Court of the Additional District Judge, Betul'.
The plaintiffs valued the suit for purposes of jurisdiction at Rs. 11,000/-. In respect of declaration they paid court-fees of Rs. 20/- under Article 17(iii) of Schedule II of the Court-fees Act, and for the purposes of injunction, they paid the court-fees of Rs. 45/- on a valuation of Rs. 450/-. The total court-fees paid was Rs. 65/-.
5. During the pendency of the suit in the trial Court the plaintiffs made an application for deletion of the relief of injunction when the question of court-fees being inadequate was raised by the defendants. The suit was contested by Smt. Jhannobai and subsequently by her daughter, Gyansundarbai. The other two defendants, who are parents of the appellants, took no interest in the conduct of the suit.
6. The trial Judge instead of deciding the questions of court-fees, limitation and untenability of the suit as preliminary issues purported to decide those questions along with merits of the case. This misconceived step has resulted in complicating the matters. However, this Court can adopt the proper procedure.
7. The trial Judge by order, dated 14-7-1966, rejected the appellants' application for permission to amend the plaint by deleting the relief of injunction. In that view of the matter, the trial Judge held that the question of court-fees will be governed by Section 7(iv)(c) of the Court-fees Act and the plaintiffs will be required to pay court-fees on the relief of injunction, namely, on the value of the property at Rupees 11,000/-. The plaintiffs in the present appeal have challenged this order of the trial Judge and also have contended that the court-fees paid on the plaint would be sufficient. We may observe that the question of payment of court-fees on the memorandum of appeal has not been raised and moreover, the Taxing Officer having accepted the court-fees and not having referred the question for decision by the Division Bench, the said question would not at all arise for consideration. But the only question would be regarding the sufficiency of court-fees paid on the plaint. In the light of these facts we would frame the question for consideration as follows:--
'Whether the minor sons of a person who claimed to have received some property from their grandfather by virtue of a family arrangement and whose interests could not have been represented by their father in the partition suit between the father and the father's mother and contend that they are not bound by the partition decree are required to seek the consequential relief of having the decree set aside and to pay court-fees on the consequential relief under Section 7(iv)(c) of the Court-fees Act, or whether they can continue the suit by payment of court-fees necessary for a declaration under Schedule II, Article 17 (iii) of the Court-fees Act, and for injunction under Section 7(iv)(d) of the Court-fees Act.'
8. At this stage we may note that it Is necessary for the Division Bench first to dispose of the question of amendment of the plaint wherein the appellants pray for deletion of the relief of injunction. That may be for the purpose of avoiding the payment of court-fees on the relief of injunction valued at Ra 11,000/-by the trial Judge. But, we feel that our opinion is called for on this aspect of the case. In this connection it is to be noted that as per the plaintiffs' allegation the plaintiffs do not allege that they got the family property as coparceners so that their father, Tekchand could act as manager of the joint Hindu family. Their specific allegation is that their grandfather held some exclusive self-acquired property and some other property which he received in partition between himself and his brothers and which became his separate property during his lifetime he gave the suit property to the plaintiffs and their father. As such, the plaintiffs claimed to have received that property along with their father, but independently of him. Therefore, the plaintiffs claimed the property in their own right and not by way of inheritance or survivorship. That, in our opinion, is the distinguishing feature and from this point of view, the plaintiffs can claim that they are not bound by any partition decree obtained by their grandmother against their father. It was necessary for the grand-mother to have impleaded the present plaintiffs as well. That not having been done and the plaintiffs not being bound by that decree, it is not necessary for them to have that decree set aside and they can claim the relief of declaration simpliciter.
9. So far as this contention of the appellants is concerned, it, in our opinion, is amply borne out by a series of decisions of this Court. We may advert to the pronouncement of a Division Bench of the Nagpur High Court, presided over by Sir Gilbert Stone, C. J. and Digby, J. in ILR (1939) Nag 373 = (AIR 1938 Nag 183) (supra), where it was held that in a suit where the declaration prayed for, if given, involves the granting of the consequential relief, such as the cancellation of a document or the avoidance of a decree, the plaintiff will be deemed to have prayed for the consequential relief and the suit will fall under Section 7(iv)(c) of the Court-fees Act, and will not be governed by Article 17(iii) of Schedule II.
10. In ILR (1945) Nag 975 = (AIR 1946 Nag 30) (supra), Niyogi and J. Sen, JJ. held that where a suit had been brought by the legal representatives of a deceased debtor who was a party to an agreement under the Debt Conciliation Act, 1933, which in view of the provisions of that Act had the force of a decree of a Civil Court, the legal representatives, if they wanted to have that agreement set aside, were required to avoid the agreement and to pay ad valorem court-fees under Section 7(iv)(c) of the Court-fees Act and not under Article 17(iii) of Schedule II.
11. In 1964 MPLJ 553 = (AIR 1966 Madh Pra 169) (supra), decided by Naik and Bhargava, JJ., the facts were that a decree had been passed against the plaintiff's husband on a mortgage and the mortgaged property had been sold. After the death of the original judgment-debtor, his widow brought a suit claiming a declaration that the sale of the suit property did not confer any right on the purchaser and also prayed for the perpetual injunction restraining the defendant from disturbing her possession. The declaratory relief was valued at Rs. 20,000/-, on which court-fee of Rs. 20/- was paid. The relief of injunction was valued at Rs. 200/- and on that court-fee of Rs. 20/- has been paid, on the premises that the plaintiff was already in possession of the property. However, the learned Judges constituting the Division Bench held that the plaintiff could not have claimed the relief of declaration simpliciter without having the decree set aside. In that view she was required to pay ad valorem court-fees under Section 7(iv)(c) of the Court-fees Act.
12. In 1957 MPLJ 46 (supra), the Division Bench presided over by V. R. Sen and G.P. Bhutt, JJ. had to consider the question whether in a plaintiff's suit for declaration that the order of the Deputy Registrar passing an award against the plaintiff under the Co-operative Societies Act, required ad valorem court-fees under Section 7(iv)(c) or fixed court-fees under Article 17(iv) of Schedule II. The Division Bench laid down that as the Arbitrator had passed an award imposing a liability on the plaintiff for an amount, the case would be governed by Section 7(iv)(c) of the Act as the plaintiff could not have secured any relief without having that award set aside.
13. In 1963 MPLJ 717 = (AIR 1964 Madh Pra 9) (supra) the plaintiff had sued for a declaration that the liability imposed by the Forest Department could not be enforced against him and he claimed to pay court-fees on the relief of declaration only. The Division Bench laid down that without claiming the relief of avoiding the liability imposed by the Forest Department, the plaintiff could not claim the relief of declaration simpliciter. In that view the plaintiff was held liable to pay court-fees under Section 7(iv)(c) of the Court-fees Act, in respect of the liability that he sought to avoid.
14. Thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. In such cases the question of court-fees has to be determined under Section 7(iv)(c) of the Act. But, however, where a plaintiff is not a party to such a decree, agreement, instrument or liability, and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the property. The matter may be different if he is not in possession of the property. In that event, the proviso to Section 42 of the Specific Relief Act might be a bar to the tenability of a suit framed for the relief of declaration simpliciter. But, that would be a different aspect. All the same, if the plaintiff is not bound by that decree or agreement or liability and if he is not required to have it set aside, he can claim to pay court-fees under any of the sub-clauses of Article 17, Schedule II of the Court-fees Act.
15. This proposition of law was accepted by the majority of Judges in the Special Bench case of 1967 MPLJ 242 = (AIR 1967 Madh Pra 221 (SB)) (supra), wherein they specifically relied on the Division Bench case of ILR 1945 Nag 975 = (AIR 1946 Nag 30) (supra). Thus, the majority view in the Special Bench case is not at all contrary to the long accepted view of this Court. But, however, on the special facts of that case the learned Judges constituting the majority view held that the plaintiff could claim a declaration simpliciter and accordingly pay court-fees under Article 17, Schedule II of the Court-fees Act. The reasoning of the learned Judges was that under the Benaras School of Hindu Law the manager of a .joint Hindu family has no power to alienate the interest of a coparcener without his consent in the absence of antecedent debt or legal necessity. Therefore, although under some other Schools of Hindu Law such alienation might be voidable, yet under the Benaras School the initial power to effect an alienation not being there, the coparcener would not at all be bound by any such alienation and if a decree be passed against the manager without impleading the coparcener, the manager not being able to represent the coparcener, the latter would not be required to have such a decree set aside and he can sue for a declaration simpliciter without having the decree set aside. As such, in our opinion, the Special Bench case is distinguishable on facts and, in our view, it has not departed from the long accepted view of this court.
16. Further we may observe that the question whether the proviso to Section 42 of the Specific Relief Act would be a bar to the tenability of a suit framed for declaration simpliciter, would be another aspect that may have to be considered by the Division Bench after deciding the question of amendment of the plaint. We refrain from expressing any opinion on that aspect. But, in our opinion, as the appellants are not required to have the partition decree set aside in view of the clear plaint allegations, their suit for a declaration simpliciter without seeking the relief of injunction is tenable and if the matter were confined to this aspect alone, we are of the view that the court-fees paid by them under Article 17 (iii). Schedule II of the Court-fees Act, is sufficient. The trial Judge had rejected the appellants' prayer for permission to amend the plaint by deleting the relief of inj unction. We are not called upon to decide that matter. It is for the Division Bench to pass the requisite order.
17. Therefore, we answer the question posed above by stating that the appellants are not required to seek the relief of injunction and as such, they are not required to pay court-fees either under Section 7(iv)(c) or under Section 7(iv)(d) of the Court-fees Act, and the court-fees paid by them under Schedule II Article 17 (in) is sufficient. This opinion does not affect the question of tenability of the suit relating to the bar provided by the proviso to Section 42 of the Specific Relief Act.