Case: Shamsher Singh Vs. Rajinder Prashad &amp; Ors

deed sought to be declared as null and void, nor to the question 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 in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily 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, the 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 family. If therefore a coparcener 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 way as in those cases in which the plaintiff is himself a party to the alienation 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 waqf property would also appear to stand on a similar footing. In the case of waqf property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is 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, he 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, AIR 1945 Lah 13 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 Section 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 Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70 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.5. 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. Narayanasami, AIR 1925 Mad 713 lays down the correct law. It proceeds on the basis that 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, AIR 1949 Nag 37 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 Courts decision in AIR 1945 Lah 13 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 Judges 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 this 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, AIR 1935 All 667 is not a good law. As regards the decision of the Full Bench of the Allahabad High Court in Bishan Sarup v. Musa Mal, AIR 1935 All 817 (FB) 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4.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 plaintiffs 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 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 antecedentwhen the plaintiffs sued for a declaration that the decree obtained be 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 todecision of the Lahore High Court in Prithvi Raj v. D. C. Ralli, AIR 1945 Lah 13 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 Section 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 Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70 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.