Skip to content


S. Tarlok Singh S. Sant Singh and ors. Vs. Sardarni Daljit Kaur - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 274 of 1959
Judge
Reported inAIR1961P& H426
ActsCourt-fees Act, 1870 - Sections 7
AppellantS. Tarlok Singh S. Sant Singh and ors.
RespondentSardarni Daljit Kaur
Appellant Advocate D.N. Aggarwal and; V.P. Kakria, Advs.
Respondent Advocate Puran Chand and; R.K. Aggarwal, Advs.
DispositionAppeal allowed
Cases ReferredEmperor v. Ralla Ram
Excerpt:
.....lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1. this is an appeal from the order of sub-judge, patiala, rejecting the plaintiff's claim to the movable property for failure to make up the deficiency in the court-fee. in a case like the present, the moment a declaration is granted avoiding or nullifying an order' granting succession certificate, the result which must follow in the course of natural event is that the possession which has been ordered by that court to be given to the applicant by the curator must be restored to the party from which it had been originally taken by the curator. in my view, to a case like the present the provisions of section 7(iv)(c) apply......is that it is by the court's order granting succession certificate that possession of the suit property has been made over to the defendant. if that order is declared to be a nullity the consequence is that the possession is to be returned to the plaintiffs. reliance has been placed upon a full bench decision of this court reported in vishwa nath v. sita bai, air 1952 punj 335. in that case if was observed :'although the object of his suit is to obtain possession of the land he (plaintiff) cannot do so unless the decree is declared ineffective against him and that being so, it is clear that the plaintiff must of necessity ask for a declaration that the decree is not binding upon him and. until this is done, he cannot sue for possession and, in this view of the matter, the suit.....
Judgment:

Tek Chand, J.

1. This is an appeal from the order of Sub-Judge, Patiala, rejecting the plaintiff's claim to the movable property for failure to make up the deficiency in the court-fee.

2. The plaintiff Tarlok Singh is father of Air Commodore Mehar Singh deceased and Uttam Singh plaintiff is the brother of the deceased. The third plaintiff, Dharambir Singh, is alleged to be the adopted son of the deceased. S. Mehar Singh died on 16th March, 1952, leaving his widow Daljit Kaur, the defendant in this case. On 11th September, 1952, she made an application for the grant of succession certificate. Under orders of the Court succession certificate was granted to the widow of the deceased and the objections raised by the three plaintiffs were dismissed on 7th May, 1953. A curator had been appointed of the properties, both Immovable and movable, and after the order granting succession certificate was passed the properties in possession of the curator were released in favour of Daljit Kaur.

3. On 12th May, 1953, the three plaintiffs instituted the present suit. It was prayed that a decree for a declaration should be passed to the effect that the order dated 7th May, 1953, passed by the Court of the Sub-Judge, 1st Class, Patiala, granting succession certificate and possession of the properties of S. Mehar Singh deceased was null, void and ineffective and, therefore, liable to be set aside qua the plaintiffs' right of survivorship. As a result of the above declaration a prayer was made for the issuance of an injunction to the defendants (the second defendant being the curator) that they should not interfere with the plaintiffs' possession of the bungalow and agricultural land specified in the plaint and the properties, both movable and immovable, should be returned to the curator in order to enable the plaintiffs to get it back from him or, in the alternative, 'defendant No. 1 may be directed to return the articles mentioned in the lists attached, to the plaintiffs.' There was also a prayer for grant of costs and for any other alternative or additional relief.

4. This suit was contested by defendant No. 1, widow of the deceased, on several grounds which need not be mentioned for purposes of this order except the one relating to court-fee. In the petition of plaint the value of suit for purposes of court-fee was fixed at Rs. 1,100/- under Section 7(iv)(c) of the Court-fees Act. It was contended that it was actually much higher. The value of the movable property was said to be Rs. 92,570/- and the worth of the immovable property was said to exceed Rs. 58,794/-.

By order dated 28th August, 1954, the Sub-Judge, without determining the valuation, ordered the return of the plaint for presentation to a Court of competent jurisdiction which, according to him, was the Court of the District Judge. The District Judge, by his order dated 28th June. 1955, thought that the plaintiffs had put an arbitrary value which was unreasonable and following the view expressed in Moti Bam v. Daulat, AIR 1939 Nag 50 (FB), Salahuddin Hyder Khan v. Dhanoo Lal, AIR 1945 Pat 421, Mt. Rupia v. Bhatu Mahton, AIR 1944 Pat 17 (FB), and Udayanath v. Rahas Pandiani, AIR 1951 Orissa 10, said that the litigants could not be allowed to place an arbitrary value which was grossly disproportionate to the relief.

According to the District Judge, the movable property was worth Rs. 92,570/- and the house alone was worth Rs. 58,794/-. He ordered that the plaintiffs should set down the correct value regarding the subject-matter of their suit and if the new valuation disclosed the suit to be beyond the competency of the Court of the Sub-Judge then only a proper order regarding the return of the plaint should be passed. The case was sent back to the trial Court. On 12th August, 1955, instead of getting the value determined, the plaintiffs filed an amended plaint after fixing the jurisdictional value at Rs. 10,500/- and paid court-fee on that amount.

The defendant again raised an objection before the District Judge saying that the plaint was not properly stamped. The District Judge, by his order dated 25th March, 1958, said that the provisions of Section 7(iii) of the Court-fees Act were attracted and the plaintiffs must pay ad valorem court-fee on the value of the movable property which according to the plaintiffs themselves came to Rs. 92,570/-. The issue whether the suit is properly stamped was, therefore, decided against the plaintiffs. From this order the plaintiffs filed a revision in this Court which was dismissed on 20th May, 1959, by Shamsher Bahadur, J. Later on, this case was sent to Sub-Judge, 1st Class, Patiala, for disposal. On 6th October, 1959, the plaintiffs were directed to make up the deficiency in the court-fee by 16th October, 1959.

On the latter date the plaintiffs expressed their Unwillingness to pay more court-fee and in these circumstances the plaintiffs' claim was rejected in so far as it related to movable property included in the succession certificate and the rest of the claim covered by the court-fee paid was allowed to continue. The plaintiffs were directed to put in an amended plaint containing a relief for declaration which would be covered by the court-fee already paid by him. From this order the plaintiffs have come up in appeal to this Court.

5. Mr. Puran Chand, learned counsel for the respondent, has raised a preliminary objection that the court-fee paid on appeal is insufficient. According to his contention the court-fee should be paid on Rs. 92,570/- less court-fee already paid. This contention of the learned counsel for the respondent is without merit. It was held by a Division Bench in Uday Chand v. Mohan Lal, 1957-59 Pun LR 265 : (AIR 1957 Punj 315), that the court-tee payable on appeal against an order rejecting a plaint for non-payment of court-fee held by the Court to be due, was an ad valorem court-fee on the difference between the court-fee as paid by the plaintiff in the lower Court and the court-fee held to be the proper court-fee by the lower Court. According to this test the court-fee on appeal is adequate.

6. On the question of court-fee paid on the plaint it was contended by the learned counsel for the plaintiffs-appellants that the relief was covered by Section 7(iv)(c) as the suit was filed to obtain a declaratory decree with a prayer for consequential relief and the court-fee payable was according to the amount at which the relief sought was valued in the plaint and this could be an arbitrary figure. The plaintiffs had sought declaration to the effect that the order granting succession certificate was null and void.

The plaintiffs claimed that the property was jointly owned and possessed by them and the deceased S. Mehar Singh, and that they had been deprived of their possession by the order appointing curator and by the subsequent order directing the curator to release the property in favour of Daljit Kaur defendant. The consequential relief sought in the plaint is that defendant No. 1 should be directed to return the articles mentioned in the lists attached to the plaint.

The argument of the learned counsel for the appellants is that it is by the Court's order granting succession certificate that possession of the suit property has been made over to the defendant. If that order is declared to be a nullity the consequence is that the possession is to be returned to the plaintiffs. Reliance has been placed upon a Full Bench decision of this Court reported in Vishwa Nath v. Sita Bai, AIR 1952 Punj 335. In that case if was observed :

'Although the object of his suit is to obtain possession of the land he (plaintiff) cannot do so unless the decree is declared ineffective against him and that being so, it is clear that the plaintiff must of necessity ask for a declaration that the decree is not binding upon him and. until this is done, he cannot sue for possession and, in this view of the matter, the suit must be held to be a suit under Section 7(iv)(c) of the Court-fees Act.' The appellants' counsel maintains that the above reasoning equally applies to the present case where the plaintiffs are seeking a declaration that the order granting succession certificate is not binding upon them.

7. In Harkishan Lal v. Barkat All, AIR 1942 Lah 209, which is a Division Bench decision, Dalip Sinigh, J. said :

'If the plaintiff chooses to frame his suit which is essentially a suit for possession and asksthat it be declared that he is the owner or a limited owner of certain property and then asks for possession as a consequential relief such a suit is in substance no more than a suit for possession and the plaintiff cannot merely by splitting the relief of possession into two distinct reliefs, namely, one for a declaration declaring his right to possess and another for actual possession, convert the suit for possession into a suit for a declaration coupled with a consequential relief. But there may be other classes of cases where, though the plaintiff may be entitled to bring a suit for possession pure and simple yet he is also entitled to bring a suit for declaration coupled with a relief by way of possession. Such cases are gene-rally cases where the plaintiff alleges that he has a right to possess but a certain decree or other document whether by way of alienation or otherwise stands in the way of his right to possess which would arise from his title. In such a case it may be open to the plaintiff to ignore the decree or document entirely treating it as a nullity and bring a suit for possession pure and simple. But there is no compulsion on him to do so and if he chooses to bring a suit in the form of a declaration that the document in question does not bind him and that, therefore, his title to the property gives him a right to possession he is entitled to do so, provided there is no other objection to the form of the suit.'

In the same decision it was also held that where it was open to the plaintiff to frame his suit in one or two ways there was no obligation in law that he should frame his suit in any other way than he would choose to frame it. If it is open to the plaintiff to bring a suit for possession or to bring a suit for a declaration with consequential relief for possession; it is entirely for the plaintiff to choose in which form he brings the suit and the question of court-fee payable is wholly irrelevant as the court-fee will be determined on the nature of the suit as framed at the choice of the plaintiff whether it is legally open to him to do so.

The learned counsel for the respondent contended that the principle of the Full Bench decision is not applicable as there is no legal impediment created by the order granting succession certificate. But in this case the possession of the suit property, both movable and immovable, was originally with the appellants and in obedience to the order of the Court it was handed over to the curator and the latter at the bidding of the Court released the possession to the respondent. Had it not been for the order of the Court the plaintiffs-appellants would still have retained the possession.

The necessity of making a prayer in the plaint had arisen on account of the fact that it was in pursuance of the order of the Court granting the succession certificate that the possession changed hands. The learned counsel for the respondent has relied upon Section 209 of the Indian Succession Act which saves the right to bring a suit. It is true that the right of the aggrieved party to establish his title by filing a regular suit is not affected by the order of the Court granting succession certificate. But from this fact it cannot be argued that the plaintiff must pay court-fee as required by Section 7(iii) of the Court-fees Act.

8. The next argument of Mr. Puran Chand is based upon the following observations of a Full Bench decision in Zeb-ul-Nisa v. Din Mohammad, AIR 1941 Lah 97,

'The meaning of the expression consequential relief as used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, ILR 54 All 812 : (AIR 1932 All 485), and it was held that the expression 'consequential relief means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a 'substantial relief'. It follows, therefore, that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere 'consequential relief' in the above sense the plaintiff must pay court-fee on the substantial relief.'

According to the above definition the meaning of the expression 'consequential relief' is enlarged so as to indicate the following elements :

(a) The relief must follow directly from the declaration given,

(b) The valuation of the relief must be such as not capable of definite ascertainment,

(c) The relief sought must not be provided specifically elsewhere in the Act, and

(d) The relief must be one which cannot be claimed independently of the declaration as a substantive relief.

Barring the first element, the other ingredients do not fall within the connotation of the term. The other three requirements are otiose and I cannot persuade myself to treat them as necessary concomitants of the expression 'consequential relief',

(9) A relief is consequential if it follows something on which it depends. What ensues or follow;must have a necessary connection with the cause. 'Cause' and 'consequence' are co-relative terms,one implying the other. What the Courts have to see under Section 7(iv)(c) is whether the relief of possession where a declaratory decree is prayed for follows as a natural sequence from the declaration. In a case like the present, the moment a declaration is granted avoiding or nullifying an order' granting succession certificate, the result which must follow in the course of natural event is that the possession which has been ordered by that Court to be given to the applicant by the curator must be restored to the party from which it had been originally taken by the curator.

In this case the legal impediment in the way of the plaintiffs is that the defendant is in possession of the suit property under order of a Court. In my view, to a case like the present the provisions of Section 7(iv)(c) apply. The principle under lying the Full Bench decision of this Court in AIR 1952 Punj 335, fully applies to this case and the court-fee has been correctly paid in accordance with the requirements of Section 7(iv)(c).

10. The next question is, whether it is open to the plaintiffs to put an arbitrary value and whether the Court is bound to accept the valuation. This matter was considered by a Full Bench of the Lahore High Court in Emperor v. Ralla Ram, AIR 1946 Lah 94, where it was held that the Court was bound to accept the valuation put upon his relief by the appellant however arbitrary it might be. This decision was followed in the latter Full Bench decision in AIR 1952 Punj 335.

11. The law in Punjab has been amended by the Punjab Court-fees (Punjab Amendment) Act (XXXI of 1953) by the addition of following proviso to Clause (iv) of Section 7 of the Court-fees Act, 1870,

'Provided further that in suits coming under Sub-section (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of this Act.'

This amendment, however, does not affect the decision in this case because the plaint was instituted in a Pepsu Court on 12th May, 1953 before the merger of Pepsu in the State of Punjab.

12. For reasons stated above the plaintiffs'appeal deserves to succeed. The order rejecting theplaintiffs' plaint passed by the Sub-Judge on 18thOctober, 1959, is, therefore, set aside. The trialCourt is directed to proceed with the case now onthe merits.

13. The costs of this appeal shall abide the event

K.L. Gosain, J.

14. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //