JUDGMENT Malik, J.
1. This is a plaintiff's appeal under Section 6A, Court-fees Act. To understand the facts of the case it will be necessary to set out a short pedigree:
Kamta Prasad _________________________|_____________________ | | | Sheonandan (dead) Raghunandan Jadunandan = def. 1 def. 5 Ram Piare | def. 4 Madan Mohan | plff.
_____|_______________________________ | | Radha Kishan def. 2 Hari Kishan def. 3.
2. One Beni Madho had obtained a decree for sale on the basis of a mortgage against defendants 2 to 4. In execution of the mortgage decree the property included in the mortgage, house No. 61/14 and plot No. 65/20, were put to sale on 3rd July 1941, and were purchased at auction by defendant 7, Laxmi Narain. After the auction sale but before the confirmation of the sale Madan Mohan filed this suit. His allegation in the plaint was that the family was joint, that his father Raghunandan was not in his proper senses and the joint family was not bound by the mortgage or by the decree on the basis of the mortgage and the property was, therefore, not saleable in execution of the decree. The suit was valued by the plaintiff at Rs. 11,000 and the relief claimed by him was as follows:
(a) the Court may be pleased to declare that the house No. 61/14 and the plot No. 65/20 were joint family properties, belonging to the joint family of the plaintiff and defendants 2 to 4 and they were entitled to joint possession over the same and the said properties were not liable to attachment and sale in execution of the decree in Suit No. 47 of 1937 Beni Madho v. Mst. Ram Piare and Ors., judgment-debtors--by the Court of the learned Sessions and Civil Judge, Cawnpore. (b) The costs of the suit may be awarded to the plaintiff against the defendants, (c) Such other and further relief may be granted to the plaintiff as is just and proper.
The plaintiff filed a suit on 11th July 1941 on payment of a court-fee of Rs. 20 only. On the date that the suit was filed the munsarim filed a report that ad valorem court-fees were payable under Section 7(iv)(a), Court-fees Act. On 24th July 1941 on further consideration, however; the Munsarim filed a further report that the court-fees paid were sufficient. On 11th November 1941 the Chief Inspector of Stamps made a report that under Section 7, Clause (viii), Court-fees Act, the court-fee payable was half of the amount for which attachment was made or half of the value of the property whichever was less and the deficiency in the court-fees should, therefore, be made good.
3. On 24th November 1941 the plaintiff filed objections that he had merely prayed for a declaratory relief and the court-fee paid by him was sufficient. The learned Civil Judge considered this matter on 23rd April 1942 and he overruled the contention of both the plaintiff as well as the Chief Inspector of Stamps and came to the conclusion that ad valorem court-fees were payable under Section 7, Sub-section (iv), Clause (a), Court-fees Act inasmuch as the plaintiff had filed a suit for a declaratory decree and had asked for a consequential relief. It is against that order that the plaintiff has come up in appeal to this Court. The plaintiff's case is that the relief claimed by him in his plaint comes under Schedule II, para. 17(iii), Court-fees Act and as it is a suit merely for declaration and no consequential relief has been asked for, the court-fees paid by him were sufficient.
4. Learned Counsel for the Government relies on Section 7, Sub-section (iv), Clause (a), Court-fees Act, and as a last resort on Section 7, Sub-section (iv)(a) of the same Act. From the facts set out above it is clear that the plaintiff was not a party to the decree which is under execution and from the relief which I have set out above it is clear that he has asked for the declarations, firstly that the family of the plaintiff and defendants 2 to 4 was a joint Hindu family, secondly that the property which had been put to sale in execution of the decree was joint family property and lastly that the said property could not be sold in execution of the decree. Learned Counsel for the Government strongly relies on Section 7(iv)(a) and urges that the last declaration that the property was not saleable must be deemed to be a consequential relief consequent on the previous two declarations that the family was a joint Hindu family and the property in suit was the joint family property; while the learned Counsel for the plaintiff claims that these are all really a part of the same declaratory relief and are not consequential reliefs at all.
5. Learned Counsel for the plaintiff has placed great reliance on a case reported in Lakshmi Narain v. Dip Narain ('33) 20 A.I.R. 1933 All. 350 where the plaintiff had filed a suit for a declaration that the decree that had been obtained against him had been obtained by fraud and the plaintiff was still in possession of the property, and this Court held that these were two independent declarations and two sums of Rs. 10 were to be paid by the plaintiff. In that case the plaintiff had claimed that he was the owner in possession of the property from before. A suit on his behalf had been filed for declaration of his title and his possession during his minority. The suit was, however, dismissed and the plaintiff on attaining majority filed a second suit for a declaration that the decree had been obtained by fraud and his title and possession had remained unaffected and he was the owner of the property in suit. The Full Bench case in Kalu Ram v. Babu Lal ('32) 19 A.I.R. 1932 All. 485 was cited and distinguished on the ground that it was not a suit for the cancellation of the mortgage or the decree but it was a suit for two independent declarations. Relying on this case learned Counsel for the plaintiff urges that all that he should have been asked to pay was court-fees for two independent declarations, (1) that the property was the property of a joint Hindu family and (2) that the property was not saleable in execution of the decree.
6. The next case relied on by him is Ishwar Dayal v. Amba Prasad ('35) 22 A.I.R. 1935 All. 667. In that case the plaintiff had filed a suit for a declaration that the hypothecation bond executed by his father was unenforceable and the family property mortgaged by that deed was not saleable in execution of the decree obtained against the father on the basis of the mortgage deed. The plaintiff asked for a further declaration that the purchase made in execution of the decree was null and void as against the plaintiff and the property in dispute had not passed to the auction-purchaser. In this case too two court-fees for two declarations were paid, and this Court held that the court-fees thus paid were sufficient.
7. The last case relied on by the learned Counsel for the appellant is Abdul Shakur v. Badaruddin ('36) 23 A.I.R. 1936 All. 874 where the plaintiff had filed a suit for a declaration that the property in suit was wakf alal-aulad and was not attachable and saleable for satisfaction of the debt due by defendant 1 to defendants 4 to 19 and in the connected case the relief claimed was that it might be declared that the property in suit was owned and possessed by the plaintiffs and was not fit for attachment and sale in satisfaction of a decree in favour of the respondent against the pro forma defendant. In the first case this Court held that the prayer that the property was not attachable and saleable for the satisfaction of the debt due by defendant 1 to defendants 4 to 19 was not a consequential relief, but was a part of the first relief for declaration and, therefore, only one court-fee stamp of Rs. 10 was sufficient. In the second case the Court held that there (were two declarations prayed for and two sums of Rs. 10 were needed.
8. On the strength of these cases the learned Counsel for the appellant argues that "consequential relief" within the meaning of Section 7, Sub-section (iv), Clause (a) cannot be a further declaration or an independent declaration. It must be some relief other than declaration and if some substantive relief other than declaration is prayed for then only is a party liable to pay ad valorem court-fees.
9. The word "consequential relief" was interpreted in the Full Bench case reported in Kalu Ram v. Babu Lal ('32) 19 A.I.R. 1932 All. 485 at page 690 in these words:
In our opinion the expression 'consequential relief' in Section 7(iv)(c) means some relief which follows 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 substantive relief.
10. In a case reported in Hyder Alii v. Hussain Raza ('15) 2.A.I.R. 1915 Mad. 444 a learned Single Judge of the Madras High Court observed. that the expression 'consequential relief' means a substantial and immediate remedy in accordance with the title which the Court has been asked to declare.
11. Great reliance is placed by the learned Counsel for the appellant for the support of his view on certain observations in Ishwar Dayal v. Amba Prasad ('35) 22 A.I.R. 1935 All. 667 at p. 500 where after quoting the definition of the words "consequential relief" given in the Full Bench case in Kalu Ram v. Babu Lal ('32) 19 A.I.R. 1932 All. 485 a Bench of this Court went on to observe:
In short consequential relief means some relief which is a necessary corollary to the principal declaratory relief prayed for by the plaintiff. Instances of consequential relief within the meaning of Section 7(iv)(c), Court-fees Act, are furnished by cases in which, over and above the prayer for declaration of his title, the plaintiff asks for some relief by way of injunction, or possession, or appointment of Receiver or for partition of his share, etc. Such cases must be distinguished from cases in which two or more declaratory reliefs are prayed for by the plaintiff. It may be that one of such declaratory reliefs can in one sense be said to follow from the other declaratory relief claimed by the plaintiff, but this fact alone cannot make a declaratory relief a consequential relief within the meaning of Section 7 (iv)(c), Court-fees Act.
It is on the observations of this case that the argument is based that a second declaratory relief can in no case be a consequential relief.
12. When more than one declaratory relief has been asked for in a case the question as to whether the plaintiff has asked for two independent declarations or only an extended part of the same declaration or one declaration which is to be deemed to be a consequential relief so far as the other declaration was concerned has given rise to a great deal of divergence of judicial opinion in this Court and in other Courts. I do not think that when a Bench of this Court in Ishwar Dayal v. Amba Prasad ('35) 22 A.I.R. 1935 All. 667 said that the other relief was by way of injunction or possession or appointment of Receiver or partition of a share, it meant to exclude the relief by way of declaration where such declaration was an independent and substantial declaration consequential on the first declaration and dependent on it.
13. In Harihar Prasad v. Shyam Lal ('13) 40 Cal. 615 a Bench of the Calcutta High Court held that a suit in which a declaration had been asked for that "a decree amounting to Rs. 2794-14-3 should be declared forged, fraudulent, illusory, collusive, inoperative and unfit for execution" and it also asked for the further relief that the property valued at Rs. 7000 should be declared to be not liable in execution of the decree was a suit for declaration with consequential relief and ad valorem court-fees on Rs. 2794 were payable.
14. Section 7(iv)(a) will, however, only apply if Sub-section (iv-A) of the section is not applicable and, to my mind, Section 7(iv-A) was introduced by a recent amendment only to put at rest the controversy and the divergence of judicial opinion on the point, and if a case comes under Section 7(iv-A) then Section 7(iv)(a) will have no application. Section 7, Sub-section (iv-A) is divisible into two parts, firstly, where the suit involves cancellation or adjudging void or voidable a decree to which the plaintiff was a party, and secondly, a decree to which the plaintiff was not a party. If the plaintiff was a party to the decree, then he had to pay ad valorem court-fees according to the value of the subject-matter and if he was not a party to the decree then he had to pay court-fees only on one-fifth of the value of the subject-matter.
15. In a case reported in Kailash Narain v. Gopi Nath ('37) 24 A.I.R. 1937 All. 411 a Bench of this Court held that in a suit of the nature very much like the present the decree was in effect to cancel or declare inoperative a decree and the Bench of this Court followed the observations of the Full Bench in Kalu Ram v. Babu Lal ('32) 19 A.I.R. 1932 All. 485 that the Court was entitled to see what is the real nature of the relief and not merely the language in which it was worded.
16. In this particular case the claim in substance is that there is a decree against defendants 2 to 4 and in execution of that decree certain properties were being sold. The plaintiff wants it to be held that that decree is inoperative and ineffective so far as his rights are concerned because the property in suit is joint family property of which he is a member. To my mind, therefore, the proper court-fee payable in the case was on one-fifth of the value of the subject-matter as provided for in Section 7(iv-A).
17. I, therefore, allow this appeal in part, modify the order of the Court below and send the case back to the lower Court for determination of the proper amount of court-fees payable under Section 7, Sub-section (iv-A) Court-fees Act. I make no order as to costs of this appeal.