http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SHAMSHER      SINGH

       Vs.

RESPONDENT: RAJINDER PRASHAD & ORS.

DATE OF JUDGMENT03/08/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. PALEKAR, D.G.

CITATION:  1973 AIR 2384            1974 SCR  (1) 322  1973 SCC  (2) 524

ACT: 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.

HEADNOTE: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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

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 appeal. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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  court- fee  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 plaint 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. 1299. (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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  ques-               tion  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) [1967] (1) S.C.R. 68. (2) A. I. R. [1941] 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, neces-               sarily   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  ap- pear  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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. Appeal allowed. (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. 328