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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: RAM KRISHAN BURMAN (DEAD) BY L. RS. & ORS.

DATE OF JUDGMENT: 26/09/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1971 AIR   87            1970 SCR  (2) 588  1970 SCC  (1)  80

ACT:     Court  Fees Act, 1870 (7 of 1870), s. 7 (iv-A)  inserted by  U.P.  Legislature--A decree for a  mere  declaration  of title  to  property  whether a decree ’for  money  or  other property’ or an instrument securing money or other property’ within  meaning  of  section--Undesirability  of  prolonging litigation by raising pleas without merit.

HEADNOTE:     As  the  reversioner of a Hindu widow’s estate  one  ’R’ instituted  suit  No. 4 of 1950 in the court  of  the  Civil Judge  Jaunpur, for a declaration that he was the ’owner  in possession’  of  the said estate. ’B’ who claimed to  be  an heir  of  the widow was impleaded as  a   party   defendant. The suit was decreed ex-parte. ’B’ then filed suit No. 14 of 1956  in  the same court against the heirs of ’R’  who  died after the, passing of the decree in his suit.  In suit  No., 14 of 1956 ’B’ claimed that as heir of the said widow he was entitled  to her stridhuna properties.  He averred  that  in suit  No.  4 of 1950 ’R’ had arrived at an  oral  compromise with  him promising him 5/16th share in the, whole  estate.; that   the  oral  compromise  was  later  reduced   into   a memorandum;  that  ’R’  had represented  to   him   that   a compromise  decree would be obtained in the suit;  and  that taking  advantage of his ignorance ’R’ had obtained  an  ex- parte  decree against  him. On these allegations ’B’  prayed that he be declared the owner of all the properties left  by the  widow, and in the alternative he be declared  owner  of her  stridhan properties, the decree in suit No. 4  of  1950 having no adverse effect on his rights.  On the footing that he  had claimed a mere declaration ’B’ paid Rs.  18/12/-  as court-fees  as in a claim under Sch. II cl. 17(iii)  of  the Court  Fees  Act.   The  Inspector  of   Stamps,    however, reported  to the Civil Judge that in his view the case  fell within s. 7(iv-A) of the Act as incorporated therein by  the U.P.  State  Legislature and court fee was  payable  on  the value  of the subject-matter of the suit.  The  Civil  Judge ordered the plaintiff to amend the plaint and pay the  court fee  remaining  due.  In appeal the High  Court  decided  in favour  of the respondent.  The State of U.P. appealed.   It

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was  contended  on behalf of the appellant:   (i)  that  the plaintiff sought a declaration adjudging void the decree  in suit  No. 4 of 1950 which was a decree "for money  or  other property"    within  the meaning of s.  7(iv-A)  since  that expression  must include a decree concerning or relating  to money or other property, (ii) that in any case the decree in suit  No.  4  was an ’instrument’ securing  money  or  other property  having market value and s. 7(iv-A)  was  therefore attracted; (iii) that the relief for declaration was a  mere device intended to conceal the true purport of the claim. HELD: The appeal must be dismissed.     (X) A decree for declaration of title to money or  other property  is  not  a  decree for  money  or  property.   The expression "decree for money or other property" means only a decree for recovery of money or other property.  It does not include  a  decree  concerning  title  to  money  or   other property.  [592 E-F]     (ii)  A decree ad invitum is not an instrument  securing money  or other property: such a decree is a record  of  the formal adjudication of the 589 court  relating to a right claimed by a party to  the  suit. It does not by its own force secure money or property.  [592 G]     (iii)  The relief for declaration was not a mere  device or  subterfuge intended to conceal the true purport  of  the claim  for the  property in dispute was in the possession of the District Magistrate, and if the Civil Court declared the plaintiff’s title he would be entitled to secure recognition of his rights by the District Magistrate. [593 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 444 of 1966.     Appeal  by  special leave from the  judgment  and  order dated  October  9,  1963  of the  Allahabad  High  Court  in F.A.F.O. No. 268 of 1957. N.D. Karkhanis and O.P. Rana, for the appellant.     R. Gcpalakrishnan, for respondents Nos. 1 (i), to  (iv), (vii) and (xi), The Judgment of the Court was delivered by     Shah,  J.  One Radhey Lal instituted Suit No. 4 of  1950 in the Court of the Civil Judge, Jaunpur, for a  declaration that he was the "owner in possession" of the estate left  by Dhan Devi. To that suit Ram Krishan Burman was impleaded  as a  party-defendant.   This suit was decreed ex  parte.   Ram Krishan  then filed Suit No. 14 of 1956 in the Court of  the Civil  Judge, Jaunpur, against the heirs of Radhey Lal  (who had  died since the passing of the decree in Suit No.  4  of 1950), claiming that he was "appointed an heir by Dhan Devi" of  properties  described in lists B, J & D in  the  plaint, that  the dispute concerning the inheritance to  the  estate left  by Dhan Devi was settled between him and  Radhey  Lal, that  Radhey  Lal admitted his title to  the  properties  in Lists B, J & D and it was agreed that in the properties in Lists A, B,  J & D Radhey Lal had 11/16th share and that he had 5/16th   share, that a memorandum was drawn up in that behalf,  and   that  Radhey Lal represented to  him  that  a compromise  decree   will  be obtained  in  that  suit,  but thereafter  taking  advantage of his  ignorance  Radhey  Lal obtained  a  decree  ex  parte.  The  following  substantive reliefs were claimed by the plaintiff:                      "(a)  that  a  declaratory  decree   in               favour  of  the  plaintiff  and  against   the

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             defendants  declaring  the  plaintiff  as  the               owner of the properties in Lists, A, B, J &  D               be passed;                      (b) in case in the opinion of the Court               prayer   (a)   cannot   be   granted,    then,               alternatively,   declaration   declaring   the               plaintiff  as the owner of properties in B,  J               and  D  being the stridhana of Rani  Dhan  Dai               Kaur be               590               issued,  decree in Suit No. 4 of 1950  has  no               adverse   effect   on  the   rights   of   the               plaintiff;" The  plaintiff  valued  the properties  in  dispute  at  Rs. 5,99,503/6/3, but on the footing that he had claimed a  mere declaration  paid Rs. 18/12/0 as. court-fees as in  a  claim under Sch. II el. 17(iii) of the Court-Fees Act.     The Inspector of Stamps reported to the Civil Judge that in his view the case fell within s. 7(vi-A) as  incorporated by the U.P. State Legislature, and court-fee was  chargeable according  to  the  value of  the  subject-matter,  and  the plaintiff  was liable to pay Rs. 3,528/8/- as  court-fee  on the plaint.  The Civil Judge ordered the plaintiff to  amend the plaint and to pay the court-fee remaining due.     The  plaintiff appealed against the order of  the  Civil Judge  to the High Court of Allahabad.  The High Court  held that the court-fee paid by the plaintiff was proper, and set aside the order holding that the case did not fall within s. (iv-A)  of  the  Court  Fees Act.  The  State  of  U.P.  has appealed to this Court with special leave.     Section 7 (iv-A) of the Court-Fees Act as enacted by the U.P. State Legislature, insofar as it is relevant, reads:                   "In suits for or involving cancellation of               or  adjudging  void or voidable a  decree  for               money or other property having a market value,               or  an  instrument  securing  money  or  other               property having such value.                   (1)    where   the   plaintiff   or    his               predecessor-in-title,  was  a  party  to   the               decree  or  the instrument, according  to  the               value of the subject-matter, and There is no dispute that the plaintiff claimed a declaration adjudging  void the decree in Suit No. 4 of  1950  declaring Radhey Lal box be the "owner in possession of the estate  of Dhan  Devi".   The plaintiff by his plaint had  claimed  two declarations in the alternative, and prima facie, the plaint was  of the description in Sch. II CL 17(iii) of the  Court- Fees  Act.  But counsel for the State of U.P. contends  that the reliefs claimed fell within s. 7(iv-A) of the Court-Fees Act.  Counsel says that the expression "decree for money  or other  property"  does not mean a decree awarding  money  or other property, but a decree concerning or relating to money or other property, and he says that where the Court declares the  plaintiff’s  title to money or  property   simpliciter, the  decree is one for money or for other property.  We  are unable to 591 agree  with  that contention.  The expression  "for"  occurs twice  in  the opening part of the  clause.   Evidently  the expression  "for"  when it occurs for the first  time  means "for obtaining a decree ordering (payment or recovery  of)". The expression "for" also occurs in several other clauses of the  Court-Fees  Act.   In s. 7 of  the  Court-Fees  Act  as amended by the U.P. Legislature which deals with computation of court-fee payable in certain classes of suits,  following

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clauses occur: "(i) In suits for money     (ii) (a) In suits for maintenance and annuities or other sums payable periodically :--     (b) In suits for reduction or enhancement of maintenance and annuities or other sums payable periodically-     (iii) In suits for movable  property  other  than money, where the subject-matter has a market value-- (iv) In suits (b) for accounts (iv) B. In suits-- (a)for a right to some  ....  to arise out of land. (iv) C. In suits-- (a) for the restriction of conjugal fights, (b)for establishing or annulling or dissolving a marriage, (c) for establishing a fight to the custody or  guardianship of any person.   (v) A. In suits for possession  .... (v) B. In suits for possession between rival tenants. (vi) A. In suits for partition. (vii)  In  suits for the interest of an assignee  of  land:’ revenue.     (ix) In suits against a mortgage for the recovery of the property mortgaged. (x) In suits for specific performance-- 592     (xi)  In  the  following  suits  between  landlord   and tenant-- (a)for the delivery by a tenant of the counter-part lease, (c) for the delivery by a landlord of a lease,     (cc)  for  the  recovery of immovable  property  from  a tenant. (f) for abatement of rent, (g) for commutation of rent, In all these clauses the expression "for" is used as meaning "for obtaining a decree ordering (payment or recovery  of)". If the expression "for" occurring for the first time in s. 7 (iv-A)  means in the context in which it occurs obtaining  a decree  for cancellation of or adjudging void or voidable  a decree,  it would be difficult to hold that  the  expression "decree for money or other property" has a wider connotation and  means  a decree which concerns or relates to  money  or other property.     A  decree  for declaration of title to  money  or  other property  is not a decree for money or other  property.   In our  judgment  the  expression "decree for  money  or  other property" means only a decree for recovery of money or other property.  It does not include a decree concerning title  to money or other property.     It  was urged that in any event the plaintiff  had  sued for  adjudging  void or voidable  an  "instrument"  securing money  or other property having market value.  But a  decree in  invited  is not an instrument securing  money  or  other property:   such  a  decree  is  a  record  of  the   formal adjudication  of the Court relating to a right claimed by  a party to a suit.  It does not by its own force secure  money or  property.   A  consent decree in certain  cases  may  be regarded as an instrument securing money or other  property, where  the  decree proceeds upon a contract which  had  that effect,  but  that  is only because a consent  decree  is  a record  of  the  contract between the parties  to  which  is superadded  the  seal of the Court.  In our  view  the  High Court  was right in holding that the court-fee paid  on  the plaint was proper.  It may be pointed out that the plaintiff had  claimed nothing more than a declaration with regard  to

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certain properties. 593     We  are also unable to accept the contention of  counsel for  the  State that the relief for declaration was  a  mere device   or subterfuge intended to conceal the true  purport of  the claim.  It iS evident that the District  Magistrate, Jaunpur was in possession of the property in dispute and  if the  civil  court declared the title of  the  plaintiff,  he would be entitled  to secure recognition of his rights.     Before  parting  with the case we must observe  that  we have  felt  greatly  perturbed  by  the  course  which  this litigation has taken. The suit was filed in 1956.  And after 13  years  only  the question of court-fee  payable  on  the plaint is decided.  In the meanwhile the original  plaintiff died.   The  delay  is largely  attributable  to  the  rigid attitude  of  the  State  which  has  by  insisting  upon  a comparatively  small claim, held up the proceedings for  all these long years by raising contentions which had no  merit. We trust the Court of First Instance will take up this  suit for hearing with the least practicable delay and dispose  of the  suit according to law. The State to pay in this  appeal the costs of the heirs of the original plaintiff. G.C.                                     Appeal dismissed. 594