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Sitaram and ors. Vs. Maharaja Govindsinghjoo Deo and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 172 of 1972
Judge
Reported inAIR1974MP173; 1974MPLJ368
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 63; Court Fees Act, 1870 - Sections 7; Specific Relief Act, 1963 - Sections 34
AppellantSitaram and ors.
RespondentMaharaja Govindsinghjoo Deo and anr.
Appellant AdvocateD.M. Dharmadhikari, Adv.
Respondent AdvocateV.S. Pandit and ;L.S. Baghel, Advs. for Respondent No. 1
Cases Referred and Thiruvengadaswami v. State of Madras
Excerpt:
.....1967 madh pra 221, must be held as not good law and to have been overruled by the above decision of the supreme court. as stated in mulla's hindu law (13th edition) para 292:-in a case where the son is under a pious obligation to pay father's debt, the creditor may sue the father alone and obtain a decree against him and he may execute the decree by attachment and sale of the entire interest of the father as well as the son in the joint family property and the sale will bind the son, though he was not made a party to the suit, unless the debt contracted by the father was for an immoral purpose......and added a relief that the decree was ineffective to the extent of the plaintiffs' share in the suit property and that the suit property be released from attachment. 4. initially the plaintiffs had paid court-fee of sections 30 for the relief of declaration, but when they amended their 'plaint in the trial court, they said in so many words that since the plaintiffs are the sons of defendant no. 2 and are members of the joint hindu family of which defendant no. 2 is the karta, the suit had to be valued according to the value of the property and ad valorem court-fee has to be paid on their share. they paid court-fee of rs. 2,350 on the amended plaint. 5. the trial court dismissed the suit. 6. the plaintiffs, in the memorandum of appeal filed in this court, paid fixed court-fee of rs. 30.....
Judgment:

Shiv Dayal, J.

1. The Taxing Officer (Registrar, High Court) has referredfor decision the question whether the court-fee paid on this appeal is proper.

2. The appellants (plaintiffs) are sons of Baldeo Prasad Tiwari (defendant No. 2). A money decree was passed in favour of Maharaja Govind Singh (defendant No. 1) against the said Baldeo Prasad. Certain properties were attached in execution of the decree. The plaintiffs herein preferred objection under Order 21, Rule 58, Code of Civil Procedure. The objection was dismissed by the executing Court. The plaintiffs then brought the suit under Order 21, Rule 63, from which this appeal arises.

3. The suit was initially for declaration of title simpliciter. The plaintiffs amended their plaint in the trial Court and added a relief that the decree was ineffective to the extent of the plaintiffs' share in the suit property and that the suit property be released from attachment.

4. Initially the plaintiffs had paid court-fee of Sections 30 for the relief of declaration, but when they amended their 'plaint in the trial Court, they said in so many words that since the plaintiffs are the sons of defendant No. 2 and are members of the joint Hindu family of which defendant No. 2 is the karta, the suit had to be valued according to the value of the property and ad valorem court-fee has to be paid on their share. They paid court-fee of Rs. 2,350 on the amended plaint.

5. The trial Court dismissed the suit.

6. The plaintiffs, in the memorandum of appeal filed in this Court, paid fixed court-fee of Rs. 30 and prayed that the appeal be allowed and the suit be decreed with costs throughout. Question arose before the Taxing Officer (Shri M. L. Malik) whether court-fee paid was adequate. The Taxing Officer answered this question in the negative. He held that a decree obtained against the father being a good decree against the sons, they must ask for setting aside the decree and pay ad valorem court-fee under Section 7(iv)(c) of the Court Fees Act (see order dated February 17, 1973).

7. Then the appellants made an application for leave to amend the plaint. That application was allowed by order dated August 22, 1973, and the Division Bench, allowing the amendment, further directed that the appeal be placed before the Taxing Officer again for deciding whether, in view of the amendment, the court-fee paid was proper.

8. The matter again went before the Taxing Officer (this time, Shri D. B. Suryawanshi). He, by his order dated December 10, 1973, held on the basis of certain decisions that the court-fee paid was adequate but since the trial Court had decided the issue against the plaintiffs and since the learned counsel for the decree-holder raised an objection that the court-fee was not proper and since the appellants had also challenged the finding of the trial Court in the memorandum of appeal, he thought it necessary that the Court should decide the controversy. Thus the matter is before us.

9. Shri D. M. Dharmadhikari, learned counsel for the appellants, urged that the question of court-fee is not open once the Taxing Officer has held that the court-fee already paid is adequate. What the Taxing Officer has, by his order dated December 10, 1973, done, and rightly, is that he has expressed his own opinion on the adequacy of the court-fee paid and then referred the question to the final decision of the Court. In our opinion, the Taxing Officer could make such a reference under Section 5 of the Court Fees Act and he rightly did so. The question is one of general importance.

10. Learned counsel for the appellants then contends that after the amendment of the plaint, the relief is merely for a declaration. No consequential relief is required to be made in a suit under Order 21, Rule 63, C.P.C., and the fixed court-fee is adequate.

11. A suit under Order 21, Rule 63, C.P.C., has its own peculiarity. A suit contemplated under this rule may be merely to avoid collusiveness of the order passed on a claim or objection preferred under Order 21, Rule 58. If no suit is instituted, the order passed in the claim proceeding becomes conclusive as to the rights asserted in the objection proceeding. The object of the law is to secure a speedy settlement of questions of title, which are raised in execution. The decision in a claim proceeding is summary in nature. It has, therefore, been said that a suit under Order 21. Rule 63, C.P.C., is in the nature of an appeal. Although an appeal is not prescribed, the legislature has prescribed a suit by way of an appeal, the object being to give the parties an opportunity of placing their respective cases fully before the Court. However, whereas an enquiry under Order 21, Rule 58, is confined to the question of possession, a suit under Order 21, Rule 63, is concerned not only with possession but also title, The object of the suit is to establish the right, which has been negatived by the claim order so that the suit is substantially- one to set aside the claim order See Mitchell v. Mathura Dass, (1884) 12 Ind App 150 (PC),

12. On one hand, a suit 'to establish the right' may be, comprehensive and along with the relief of declaration, it may include consequential relief, such as, recovery of possession of property or recovery of the value of property of enforcement of a mortgage, but, on the other hand, the plaintiff is not bound to ask for a consequential relief. He may sue for declaration simpliciter and in that case it cannot be said that it offendsthe proviso to Section 34 of the Specific Relief Act, 1963. The right of suit under Order 21, Rule 63, C.P.C., is not governed or qualified by the proviso to Section 34 of the Specific Relief Act, 1963. so that such a suit cannot be dismissed on the ground that a further relief than a mere declaration has not been asked for.

13. Shri Dharmadhikari's argument is that no doubt ad valorem court-fee was payable on the plaint, as it was amended in the trial Court, but since this Court allowed the amended plaint to be further amended, whereby the consequential reliefs are deleted and the suit is now purely for declaration, fixed court-fee paid under Schedule II, Article 17(iii) is adequate.

14. It is undoubted law that the question of court-fee must be decided on the basis of the relief claimed in the plaint. It is extraneous to the question of court-fee whether the plaintiff is likely to succeed or is entitled to the relief claimed, or the suit is likely to be dismissed, either on merits or on the question of its competence. Nor is the defence relevant for the purpose of determining the question of court-fee. However, in deciding the question of court-fee, the Court must look into the allegations in the plaint to see what the substantive relief is, which has been asked for, and mere astuteness in drafting the plaint will not be allowed to stand in the wav of the Court looking at the substance of the relief asked for. (per Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384).

15. In AIR 1973 SC 2384, it has been held as follows:--

'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 debti (Faqir Chand v. Harnam Kaur, AIR 1967 SC 727).

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.'

The ratio decidendi of the above ruling is quite clear. Where a declaration is sought to avoid a decree as not binding on the plaintiffs, what is really asked is that the decree be set aside or that an injunction be issued to restrain the decree-holder from executing the decree against their property. The crux of the matter, therefore, would be whether the decree which is the subject-matter of the suit can be executed against the plaintiffs. Thus, the decision (majority view) in Baldeo Singh v. Gopal Singh, AIR 1967, Madh Pra 221, must be held as not good law and to have been overruled by the above decision of the Supreme Court.

16. We are thus clearly of theview that;--

(1) The law aims at securing speedy settlement of questions of title, which are raised in execution. The decision in a claim proceeding under Order 21, Rule 58, C.P.C., is conclusive, but the conclusiveness of such decision is lost as soon as a civil suit is instituted to establish the right, which the plaintiff claims to the property in dispute within the meaning of Order 21, Rule 63, in which case finality is bestowed upon the result of such suit.

(2) A suit under Order 21, Rule 63, has certain peculiarities; (a) Although it is a suit to establish title, it has to be instituted within the special period of limitation, that is, one year, (b) Such a suit can be a pure declaratory suit and it is not necessary to claim any consequential relief. It is immuned from the proviso to Section 34 of the Specific Relief Act, If need be, a subsequent suit can be filed for consequential relief, (c) However, the plaintiff may at his option, claim consequential reliefs also in a suit under Order 21, Rule 63, C.P.C., as there is no bar.

(3) When a suit under Order 21, Rule 63, is for declaration simpliciter, fixed court-fee under Schedule II, Article 17 (iii) of the Court Fees Act will be adequate. But, if consequential relief is also claimed, ad valorem court-fee will be required.

(4) When a Hindu son brings a suit under Order 21, Rule 63, to establish his exclusive title in the property attached or to be sold, he need not claim any consequential relief, such as, setting aside of alienation made by his father, or setting aside the decree passed against the father. His suit can be for declaration simpliciter and fixed court-fee will be adequate.'

(5) Where, however, a suit by Hindu son under Order 21, Rule 63, is to establish his right in ancestral property anda declaration is sought that the property is not liable to attachment or sale on the ground that the decree against the father is not binding on the son, the relief of setting aside the decree or consequential relief of injunction restraining the decree-holder from executing the decree against the ancestral property is implicit, per Shamsher Singh v. Raiinder Prashad, AIR 1973 SC 2384. Ad valorem court-fee will, therefore, have to be paid.

(6) The Division Bench decision (majority view) in AIR 1967 Madh Pra 221, must be held as not good law and to have been overruled by the above decision of the Supreme Court.

17. In the present case, the decree under execution was passed against the plaintiffs' father. It is admitted in the plaint that the property under attachment and sale is ancestral property. As stated in Mulla's Hindu Law (13th Edition) para 292:--

'In a case where the son is under a pious obligation to pay father's debt, the creditor may sue the father alone and obtain a decree against him and he may execute the decree by attachment and sale of the entire interest of the father as well as the son in the joint family property and the sale will bind the son, though he was not made a party to the suit, unless the debt contracted by the father was for an immoral purpose.'

18. Thus, on the plaint averments themselves, the decree under execution, binds the plaintiffs so that in their suit for declaration, the relief that the decree be set aside or an injunction be issued to the decree-holder, is implicit (per dictum in AIR 1973 SC 2384) (supra).

19. That the plaint has now been amended by an order of this Court makes no difference. Before the amendment, consequential relief was explicit; now, after the amendment as allowed by this Court, it is still there, though implicit.

20. Shri Dharmadhikari relied on the following decisions: Phul Kumari v. Ghanshyam Misra, (1908) 35 Ind App 22 (PC); Sonaram v. Sitaram, AIR 1941 Cal 28; Sheo Prashad v. Suraj Mal. AIR 1955 Punj 104; Arumugha v. Venkatachala, AIR 1933 Mad 439 and Thiruvengadaswami v. State of Madras, AIR 1959 Mad 155. All these decisions fall within the propositions (3) and (4), as set out by us above, but the appellants' case here is within proposition (5).

21. We, therefore, hold that the appellants must pay ad valorem court-fee as they had subsequently paid in the trial Court. One month tune is granted to the appellants to make up the deficiency.

22. So far no order has been passed for staying further proceedings inexecution. We do not see any prima facie case for grant of stay, inasmuch as the decree under execution has not been attacked by the plaintiffs on the ground that the debt was tainted with immorality. The record of the trial Court shall be returned forthwith and will be requisitioned again when court-fee has been paid and the appeal is admitted. List this case on March 5, 1974, for orders.


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