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SMT. VEENA BAHI & OTHERS versus SHRI VISHNU KUMAR & OTHERS

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Smt. Veena Bahi & Others v. Shri Vishnu Kumar & Others - FIRST APPEAL FROM ORDER No. 1704 of 2005 [2005] RD-AH 1951 (16 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

        Reserved

F.A.F.O. NO. 1704 of 2005

Smt. Veena Bahl(deceased) and others Vs. Sri Vishnu Kumar and others

Hon'ble Yatindra Singh,J

Hon,ble R.K.Rastogi,J

          (Delivered by   Hon'ble R.K.Rastogi,J)

1. This is an appeal  against the order dated 23.4.2005 passed by Sri  Akhilesh  Chandra Sharma, learned  Addl. District & Sessions Judge Court no. 10, Moradabad in Original Suit No. 319 of 1982, Smt. Veena Bahl and others Vs.  Sri Vishnu Kumar and others.

2.        The facts  relevant  for disposal of  this appeal are that the plaintiffs Smt. Veena Bahal, Smt. Ramwati Devi and  Smt. Rajeshwari Devi Rastogi ( now  all deceased) filed   O.S. No. 319 /82 in the court of  Civil Judge,  Moradabad against the defendants Sri Vishnu Kumar  and others  with these allegations  that  the properties  specified in  Schedule  'A' and 'B' were owned  by Raja Krishan  Kumar  and his son Raja Raj Kumar   who  jointly executed  a registered   deed of  transfer on 6.8.1896 in favour of Anirudh Kumar  and Lal Kumar. It  was further provided  in that deed that the  property shall not be transferred to any  non  - member of the family  so long as the  members of the family were ready to take it.  Sri  Lal  Kumar  died unmarried and thereafter  Sri Anirudh Kumar  also died  and so the property was inherited  by his son  Jagdish Kumar . Jagdish Kumar  also died on 22.3.1932 and  he was succeeded  by his widow Smt. Surendra Bala Devi. She  executed  her last Will  in favour of  her daughter  Smt. Rajeshwari Devi Tandon (mother of plaintiff no.1 on 18.5.1964   narrating therein that  her Manager  Pt. Shyam Lal Chaubey  had obtained  a Will  of this property  on 23.12.63 in his own favour  which was written in a language not known to  her and she  was  wrongfully  made to  sign it   without    explaining  its contents to her. Under the  said Will dated 18.5.1964  the properties described  in Schedule 'A' of the plaint  were  bequeathed to  Smt. Rajeshwari Devi  Tandon  who died on  17.12.1980 leaving behind  plaintiff no.1 as  her sole  heir and  thus  plaintiff  no.1 became  owner in possession of the  the properties left by  her. Smt Surendra Bala  had filed    Suit No. 17 of 1944  against her mother -in-law, Smt. Gainda Kunwar   widow of  Sri Anirudh Kumar  in the court of  Civil Judge, Moradabad and aggrieved   with  the order of the  Civil Judge,  Smt. Gainda Kunwar  filed Civil   Revision No. 338 of 1945 before High Court at Allahabad and  in this revision  a compromise  was filed by  Smt. Gaindra Kunwar and Smt. Surendra Bala  on 16.12.1947 and according to this compromise  Smt. Gainda  Kunwar was given  a life interest  in the property  specified in Schedule 'B' of the plaint  in lieu of  her maintenance  allowance and she was  put in actual  possession of that property and    after   enforcement  of  the Hindu Succession  Act,1956 Smt.  Gainda Kunwar became  full  owner of this property. Smt.  Veena Bahal, plaintiff no.1  died on 22.10.1986 during the pendency  of the present suit leaving behind  her husband  and   two sons  as her   legal heirs  and they were  impleaded  as plaintiff  nos. 1/1 , ½ and 1/3.   Smt. Gainda Kunwar executed a  registered  Will    of the property  specified  in schedule   B in favour of her  grand- daughter  Smt. Rajeshwari Devi  on 23.2.1967. Smt. Gainda Kunwar  died on 15.4.1974 and  then  Smt. Rajeshwari  Devi  became  owner of this property by virtue of  above Will.   Smt. Rajeshwari Devi also died  on  17.12.1980 and then  her daughter Smt.  Veena Bahal (Plaintiff no.1)  became  sole   owner of the  aforesaid property. Smt.  Surendra Bala  was not  in possession  of the property  specified in Schedule 'B' in 1956 when the Hindu Succession Act  was enforced  and she had no right to  execute   any Will  of the above property on 23.12.1963. Smt. Rajeshwari Devi never  entered into  any  agreement  with Sri  Vishnu Kumar (defendant no.1) on  25.5.1968 or  on any other date. No such agreement was signed by her   and the agreement relied upon by defendant no.1  Shri Vishnu  Kumar  is a void document . The Will relied upon by  defendant no.1  is   invalid  on the  ground  also that  it has been made by Surendra Bala  in favour of   persons  who are not member of  her  family. The plaintiff no.1 after  the death of her  mother has become  sole owner  in possession  of the disputed  property    but  defendant no.1 was  threatening  to realise   rent from tenants in  the property and   during  the pendency of the suit   defendant no.1  transferred some of the properties  to  defendants no.3 to 8 relying upon  the aforesaid   forged  Will  in favour of  himself  and  defendants  no. 9 to 13.  Plaintiff  no.2 died during the pendency of the suit  on 17.9.2003 leaving plaintiffs no. 2/1 to 2/5 as her legal heir. Plaintiff no. 3 also died on 11.4.97 leaving  plaintiff no.  3/1 to 3/7 as her heirs. Defendant no.2 also died  leaving  behind   three legal heirs who were already impleaded  as defendants no. 9,10 and 11. Defendant no. 3 also died leaving  defendants no.  3/1 to ¾ as her  heirs.  Defendant no.10 also died leaving behind  defendants no.10/1 to 10/4 as   legal  heirs. Pt.Shyam Lal Chaubey (defendant no.2) as Manager  was permitted  by the plaintiffs  and their predecessors  to reside in house no.2 of  the  schedule 'A' property and  encouraged by him  his sons and  other  persons  named as legatees in the alleged Will dated 23.12.63 were  interfering  with the plaintiffs' right  over the property. Plaintiff no.1 executed  a sale deed in favour of plaintiffs no. 2 and 3 on 7.7.83 in respect of  the property specified in schedule 'B' of the plaint. These plaintiffs No.2 and 3  Smt. Ramwati Devi and Smt. Rajeshwari Devi   executed  two  Wills in favour of  plaintiff no. 2/2 on 27.1.2003 and 29.2.1996 respectively  and as such  plaintiff no.2/2 became  sole owner of the property   specified in  schedule 'B' of the plaint. The plaintiffs  would suffer  irreparable loss  and injury  if  any of the properties  specified  in Schedule 'A'  and  'B'  are illegally transferred by the defendants. They  , therefore, filed   the  suit  for declaration  that  plaintiffs no.  ½ and 1/3 are owner of the property specified in Schedule 'A' of the plaint  and that plaintiff no. 2/2 is owner of  the property  specified in Schedule 'B' of the plaint  and for  permanent injunction  restraining the defendants from  alienating these properties.  The plaintiffs valued  the suit  for relief  'A' & 'B ' on the   market value  of   property no. 1 and 2  specified in Schedule 'A'  of the plaint  which was  Rs.26,98,530/- and Rs. 43,11,195/-  respectively  and  on  value of  property no. 3 of Schedule  'A'   calculated  at  thirty times  of the  amount of annual  land revenue of Rs.12.95 Paise i.e.  Rs. 388.50 paise   plus   Rs. 21,000/- being  the price of  21 trees   standing thereon; total  Rs.70,31,113.50 paise. The properties  specified  in   schedule 'B'  were  valued at Rs.100,000/-  in respect of   reliefs 'C' and 'D'. The plaintiffs paid  court fees of Rs.200/- each  for  declaratory  reliefs 'A' and 'C' and  Rs. 500/- each  for the reliefs of injunction  'B' and 'D'.                                                                                                                                                                                                                                                                                                                                                                                                                                      

3. The  defendants contested the suit.  They took  a plea that the plaintiffs  had  sought the  relief  of  declaration   with    the consequential  relief of  injunction   in the relief clause of the plaint and   so  the plaintiffs   should have paid  ad valoram court fees on the entire  valuation of the suit under section  7 (iv)(a) of the Court Fees Act ( the Act)  and the court fees of Rs.200/- and Rs.500/-  paid separately  for the reliefs of declaration and injunction  was insufficient.

4. The  following  preliminary issues were  framed:

1(a)Whether   the   suit  was   undervalued ?

1(b) Whether  the court fees paid  was  insufficient?

5. The learned  Addl. District  Judge  after  hearing both the parties  on the  above preliminary issues held  on issue no.1(b) that  the court fee paid  by the plaintiffs   was not sufficient  and the   plaintiffs  should  pay  ad valoram court  fee   on  the  entire valuation  of the property in accordance with section  7(iv)(a) of the Court  Fees Act. Aggrieved with that order the plaintiffs filed this appeal.

6. We have heard  the learned counsel for both the parties  and have perused the record.

7. The learned  counsel for  both the parties referred to   the seven Judges  Full Bench Ruling of  this Court   in the case of  Chief Inspector of Stamps Vs. Mahant Laxmi Narain ( AIR 1970 Allahabad 488). The learned  counsel  for  both the parties    have relied upon  different  paragraphs of this ruling  in support of their rival  contentions. The learned  counsel for the plaintiff  appellants contended that  the  relief  of injunction  sought by the plaintiffs is not  a consequential relief and so  section 7(iv)(a) of the Act  is not  applicable to  the present case. On the other hand the learned counsel for the  defendants  contended that  relief of  injunction  sought by the plaintiffs  is a consequential relief.

8. Let us consider  the rival contentions of  both the parties. However,  before  going through the above  ruling , it will be  useful to  reproduce  the  reliefs  sought by the plaintiffs  in the present  suit which are  as follows:

"(a) A decree of  declaration in favour of  plaintiff no.1/2 and 1/3 against the defendants be passed  declaring them to be owner of the properties mentioned in  Schedule 'A' of the  plaint , be passed  with a declaration that  the plaintiff no.1 is owner of  properties no.2,3,4 and part of the property no.1 which is exclusive of  the property and  does not contain  the  property given in Schedule 'B',  the defendants be restrained  from alienating  the same  in any way and  if the plaintiff no.1 is not held entitled  to be  in possession of the said properties then  the possession be also delivered to  plaintiff no.1 over the same.

(b) That decree of  prohibitory  injunction be passed in favour of plaintiff no.1/2 and 1/3 against the defendants restraining  them from  alienating  the  properties  mentioned in Schedule 'A' of the plaint with a declaration that the plaintiffs no. 2 and 3  are owners   in possession of the property mentioned in  Schedule 'B', the defendants be restrained  from interfering  in the possession of  plaintiffs no.2 and 3 over the same and in the  alternative if  defendant no. 2 and 3 be not found in possession  of the property in the Schedule 'B' possession actual  over the property in occupation of  the   defendants  or any of them  and  construction over the portion in occupation of the tenants  be delivered  to the plaintiffs no. 2 and 3.

(c)That  a decree of declaration  in favour  of plaintiff no. 2/2 be passed , against the defendants , declaring him  to be the owner of  properties mentioned in Schedule 'B' of the plaint.

(d)That a decree of prohibitory  injunction be passed  in  favour of  plaintiff no. 2/2 restraining the defendants from alienating  the property  mentioned in  Schedule 'B' of the plaint  in any way."

9.In the  case of   Mahant Laxmi Narain (supra) the  orders of the  lower courts in   two  suits were  considered.  One of those suits was   suit No. 83 of 1953.This suit was  filed by Sri N.A. Guzdar and 16 other  Parsis against  Sri  S.T. Shapoorji and 24 other Parsis on the allegation that " The Barame Jashane Roze Bahram Mandali" of Allahabad was a socio- religious association of the Parsis, that it had  constructed a hall known as Bazam Gandhi Hall, that  a meeting was convened on February 14,1952 for winding up the Mandali and for transferring the hall and that the  meeting and the resolutions passed thereat were illegal and non binding . The relief prayed for were:      

"(1) That  it may be  declared  that the entire  proceedings of meeting of 14.2.1952, including the  resolutions passed thereat are illegal , ultravires and null and void as regards the Mandali which is neither bound by them nor can be wound up for any reasons whatsoever.

(2) That  the defendants be restrained  from interfering with or obstructing in any  manner whatsoever  the plaintiffs in the use and enjoyment of the 'Bazam Gandhi Hall' property belonging to the Mandali, as members thereof."

The  first  relief  of declaration  was valued at Rs.5,000 and the fixed  court -fee of Rs. 18/12/- was  paid  thereon. The relief of  injunction  was valued  at Rs.200/- and a court-fee of Rs.50/- was paid  thereon. The  defendants raised an  objection that the suit was one  for a declaration of this consequential  relief of  injunction and court-fee was payable  ad valorem on the value of the immovable  property  under sub-section (iv) (a). The Civil Judge  held that the suit was for a  declaration with a consequential  relief of  injunction, that  the consequential  relief was in respect of immovable property,  that the relief was incapable of  valuation                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         and, therefore, the court-fee was payable  on the market value of the immovable  property which was Rs. 12,000/-. He  accordingly directed the plaintiffs to make good the deficiency which amounted to  Rs.986/2/-. Against   this order, the plaintiffs filed F.A.F.O. No. 299 of 1959. J.D.  Sharma, J, who heard the  appeal , affirmed the decision of the Civil Judge  that  the  suit was  for a declaration  with a consequential  relief   but he  was of the view that  the relief claimed was not in respect of immovable property, and  therefore  court-fee was payable  on the amount at    which     the     two       reliefs

were valued in the  plaint, i.e. Rs.5200/-. Against  his  judgement, three special appeals  were filed, No. 27 of 1961 by the plaintiffs. No. 33 of 1961 by the defendants and No. 34 of 1961 by the Chief Inspector of Stamps. These appeals came up  for hearing before a Bench  which referred  them to a Full Bench.

10. Another  suit considered in the  above ruling was   No.  12 of 1960, which was filed by   Mahant Laxmi Narain and two others,  for  the following reliefs:

"1.That  it  be declared that plaintiff no.1 was the Mahant of Math Khedra and  Sarbarakar of Shiv Ji and of properties  of the Math; and

2.That  an injunction  be issued  restraining  the defendants from interfering with the possession of  plaintiff no.1 as the Mahant and Sarbarakar over the properties , plots  crops and well in suit."

The properties in suit were valued at Rs.7,343/11/- and the plaintiffs paid court fee of  Rs.100/- on the first relief and  a court fee of Rs.237/8/-  on  the second  relief, treating  the reliefs as two distinct and independent reliefs. The suit was dismissed by the Civil Judge and an appeal was filed by the plaintiffs. At that stage , the Inspector of Stamps, reported that the  court-fee paid by the  plaintiffs was insufficient as the suit was  governed by  sub-section (iv) (a) and  court-fee was liable to  be paid on the  full value  of the property and not on  one-fifth  of its value. The District Judge  rejected the  report holding that the  second relief was not a consequential relief and the court-fee  paid separately on the  two reliefs  was sufficient. Against  his order, the Chief Inspector of Stamps filed Civil Revision  no. 526 of 1963. A learned Single Judge ,  before  whom the revision  came up for hearing, referred it  to a larger Bench. The Division Bench   before which it  then came up, referred  it  to a Full Bench.

11. Their Lordships of the Full Bench  while  interpreting   the words 'consequential relief ' observed  in  paragraph 18 of the judgement  as follows:

"18. The words 'consequential relief ' have not been

defined in the Court-Fees Act . The meaning , which should be given to a word or  expression  not defined in an  enactment, should be its ordinary dictionary meaning  or a  meaning which is necessarily implied by the context in which it is used or by the object of  the  provisions or by  the  scheme of the enactment. The  ordinary  dictionary meaning of the word ' consequential' is "following as a result or inference". This meaning  justified the  first test laid down  in Kalu Ram's case, AIR 1932 All 485 (FB). The judgment  in that case  does not  disclose  or  indicate the basis  for  the second, third  and fourth tests. There is  nothing in the language of Section 7 or in the context  in which the word 'consequential' has been used to support  these tests. The objects of  the Court-Fees Act are to  collect revenue and to prevent frivolous suits being filed. Neither from these objects nor from the scheme of the Act can these three tests be necessarily  implied.

12. It may be mentioned that  in  the  earlier Full  Bench ruling of this court in  the case of Kalu Ram  Vs. Babu Lal (AIR 1932 Alld 485), it was laid down  that the  relief  must satisfy the following     four conditions   or tests  to make  it   a  ' consequential relief' within the meaning of Section  7(iv)(c):-

"1. The relief follows directly  from the declaration  given.

2..The Valuation  of the relief is not capable   of being  definitely ascertained.

3.The relief is not specifically provided for  any where in the Act.

4.The relief is  one which cannot be claimed independently  of the declaration as a substantive relief."

13. In  the case of Mahant Laxmi Narain (supra) the Full Bench  of seven Hon'ble Judges  considered the aforesaid  Full Bench ruling  in the case of  Kalu Ram (supra) and  held that  the second, third and fourth tests laid down in  Kalu Ram's  case   are not  justified  and  they unnecessarily  narrow  down the  meaning of the  words 'consequential reliefs'. Their Lordships  concluded  the  correct legal position in this regard   in the following  paragraphs:

"22. It  thus  appears that the second, third and fourth tests laid down  in Kalu Ram's case , AIR 1932 All 485 (FB) are not justified  and unnecessarily  narrow  down  the meaning of the words  'consequential relief. Section 7(iv)(c) applies  to  a suit  to obtain a declaratory decree or order in which a consequential relief is prayed. The suit  must  principally  be  for  a declaration and in that suit some  other relief should also be claimed. The  two reliefs may be asked for either as  one composite relief or as two distinct reliefs. The words 'consequential relief ' imply that  the  other  relief should  be one which flows directly from the declaration which the plaintiff desires to be made. This means that the plaintiff should be  entitled  to the other relief only  as a necessary consequence or result of  the granting of the declaratory relief. The  other relief must be  so dependent on the declaratory relief that it cannot be allowed if the principal relief is refused. In suit no. 83 of 1953, two reliefs were  prayed  for which , in substance, were for a declaration that the proceedings of a meeting held on 14.2.1952 and the resolutions passed at it were  illegal and not binding on the Mandali and for an injunction restraining the defendants from obstructing the plaintiffs from using the hall belonging to the Mandali. Here  the relief of injunction flowed from the relief of declaration, and if the suit for declaration were  dismissed, it could not be decreed for the  injunction. The  relief of injunction is, therefore,  a consequential relief and the suit is covered  by  sub-section (iv) (a). In suit no.12 of 1960, the reliefs prayed  for  were a  declaration that the first plaintiff was the Mahant of the Math and the  Sarbarakar of the  deity  and of the properties of the Math and an injunction  restraining the defendants from interfering with the possession of the first plaintiff over the properties as Mahant  and  Sarbarakar. The relief  of  injunction  flowed directly  from the right  which the plaintiff desired to be declared  and  is a consequential relief. This suit is also , therefore, covered by sub-section (iv)(a).\

23.The next question, which arises for consideration, is as to  the manner in which  the  reliefs are to be valued under sub-section (iv)(a). Sub-section (iv) (a) treats a suit for a declaratory  decree  or order , in which a consequential relief is prayed, as one  for a single relief. It provides that the court-fee payable in such suits shall be according to the amount at which the relief sought is  valued in the plaint or memorandum of appeal. This  gives the  plaintiff a right to put any valuation, which  he considers proper,on the combined declaratory and consequential reliefs. This right of the plaintiff is  subject to two restrictions imposed by the  first  and the  second provisos. The second proviso makes it  incumbent on the plaintiff to value the relief at an amount  not  less than Rs.300/- . The first  proviso has already been set out earlier. It is  applicable  only to suits falling under sub- section (iv)(a) in which the  relief sought is with reference to immovable property. It provides  for the following three things:

(i) That the plaintiff' shall   value the  relief according to the value of the consequential relief. This means that the declaratory relief and the consequential relief have to be treated as  one relief and the value of such relief has to be  the  value of the consequential relief:

(ii) That, if the consequential relief is capable of valuation , then the plaintiff shall value the relief at an  amount  according to this valuation; and

(iii) That, if the consequential relief is incapable  of valuation, then the plaintiff  shall  value the relief at an amount which is the value of the immovable property computed in accordance with  sub-Section (v),(v-A) or (v-B) as the case may  be. Upto this stage there is no dispute. The controversy is over  the meaning of  the  words " relief is  incapable of valuation". On the one hand, it is said that  these words mean that the relief should be incapable of valuation under any provision of the Act, on the other hand, it is  asserted that these words mean that the relief should be incapable of market or  economic valuation.

Their Lordships after discussing  rival contentions  on the point  concluded the legal  position as under:

" It  must be kept in  mind that the declaratory relief and  the consequential relief  falling  under Section  7(iv)(a) in respect of  immovable  property  have to be valued as one  relief and that  relief is the consequential  relief. What  has then to be  seen  is whether  the relief, which has been  been prayed  as a consequential  relief, is  capable  of valuation or not. When  the  Act  itself  provides the manner  or method of valuation  of a particular  relief, how can it be  said that  that  relief is incapable of  valuation ? If the relief, which is prayed for  as a consequential relief is specifically provided for in the Act, then  it is capable of valuation and must be valued  according to the provision made in  respect  of it; but if the relief is one which is not  specifically provided  for in  the Act, then it is  not capable of valuation under the Act  and must be valued according to the  value of the immovable property in respect of which it has been prayed.  Simply   because  an injunction is  sought in conjunction with a declaratory relief, thereby becoming a  consequential relief, it does not  cease to be a relief of injunction. The  value of the suit is the value of the  consequential relief that  is  to say the value  of the  relief of injunction. The method for valuation  of a relief of injunction is  specifically provided in sub-section (iv-B). Where  the relief, which is prayed for as  a consequential relief is the relief of  injunction, it is capable of valuation under sub-section  (iv-B) and must be  valued according to the provisions of this sub-section."

14. After making  these observations their Lordships  held that  in O.S. No. 83  of  1953 the  suit was for   a declaratory  decree  with a  consequential relief of injunction and  so it was  governed by    Section 7 (iv)(a) of the Court   Fees Act  and so the  court fee was to be paid  in this case  in accordance with  the   above section.

15. In  suit No.  12 of 1960,  it was held  that  this  case was   also governed   by Section 7(iv)(a) of the Act   but   since  excess court fee had  already been paid, there was no question of   recovery  of any more  court fees.

16. It is  to be seen that in the present case  also  the plaintiffs have  sought  for  a declaratory  decree   in respect of   the properties   specified  in Schedule  'A' and 'B' of the plaint alongwith consequential relief of  injunction  and in view of  the   law laid down in the  above Full Bench ruling  in the case of  Mahant Laxmi Narain (supra) the provisions of section 7(iv)(a) of the  Court Fees Act  are applicable  to the present  case,  and the  plaintiffs have to  pay  court fee in accordance with  this section.

17.     The above  ruling  in  the case of Mahant  Laxmi Narain (supra) was  followed  by a Division Bench  of this court  in the case of   The  Chief Inspector of Stamps, U.P.   Vs. Bhagwati Prasad and others  ( 1985 All. L.J. 219). In this case  also  a   declaratory  relief  was sought  for   in respect of certain property alongwith  relief of injunction  and so it was  held to be  a case of consequential relief covered  by Section 7(iv)(a) of the Court Fees  Act.

18. The learned  counsel for the defendants  also cited  before us another Division Bench  ruling of   this Court in the case of  Kailash Chand  Vs.  Vth  A.C.J. Meerut  ( AIR 1999 Allahabad  151). In this  case  a suit was filed  challenging   a Will as  null and  void  and  the   suit was filed after death of  the testator. It was held that  after death  of the  testator, the  Will  shall become operative, and  therefore  it  is an  instrument  or document  securing  the   property  having  money value,  and therefore the court fee  would be payable  under  Section 7(iv)(a) of the  Court Fees Act  and Article 17 of Schedule II of the  Court Fees Act  shall not be  applicable.

19. It  was  submitted  by the learned counsel for the  defendants that  in the present case  the plaintiffs  have  challenged the  Will allegedly executed by Smt. Surendra Bala   in favour of  Pt. Shyam Lal Chaubey  on 23.12.1963 as well as the  agreement executed by Smt. Surendra Bala in favour of  defendant no.1 on 25.5.1968.  So is  is not  mere a suit for  declaration   under Article 17  of Schedule II of the Act. He also   cited before us  the ruling  of this  Court in the case of  Smt. Bina Rani Vs. Fakir Chand and others ( 1986 All. L.J. 86) in which it has been held  that  the Will  is an instrument  and  it   secures  property   in favour of the  beneficiaries concerned and so  Section 7 (iv)(a) is attracted for payment of  Court  fees.

20. On the   other hand the learned counsel for the  plaintiff appellants, in support of his contention that  the suit is for mere declaration without any consequential  relief,  cited before  us the ruling  of  Calcutta High Court  in   Smt.  Siba Rani Devi and others Vs. Ramendra Nath Mukherjee and others ( AIR 1963 Calcutta 46).  In this case the suit involved  the construction of some document  in which  a stranger was  interested  and it  did not involve cancellation or setting aside of any document, so  the suit was held to be within the purview  of Article  17 of  Schedule II of the Court Fees Act. The facts of this ruling  are quite  different  from  those of the present case  and so it  does not apply  to the  present case.

21. Learned counsel for the  plaintiff  appellants next  referred to  the case of  Ram Krishna  Barman Vs. Mohan Lal Sahgal and others ( 1964 A.L.J 498). We have carefully  gone through  this ruling .In this case  the  facts were  that  O.S. No.14 of 1950 was filed  by one Radhey Lal for relief of  declaration in respect of certain property and  court  fee was paid  for that relief  under Article 17(iii) of Schedule  II of Court Fees Act. The suit was decreed exparte. Subsequently   R. K.Barman , the  plaintiff appellant , who was a defendant in the above suit,  filed  O.S. No. 14 of 1956 challenging  the above decree passed in O.S No. 4 of 1950 alleging that the decree was obtained by committing fraud upon him and  sought declaration  to this effect. The plaintiff of this suit  also paid the amount of  court fees  in accordance with  Article 17(iii) of the Court  Fees Act  The Stamp Inspector  submitted a report  that the  case was  covered under section 7(iv)(a) of the Court Fees Act . It was held  by this court  that when the court fee was payable  in respect of the relief  sought  in suit no. 4 of 1950 under Article 17(iii) of the  Act,  then the same  court fee was payable  in the  subsequent  suit  No. 14 of 1956 praying  for cancellation of  the decree  passed in that suit.  The  facts of this  case,  as narrated above,  are quite different from those  of   the instant  case  and  thus the ruling  of this case also   does not   render any help  to the   plaintiff appellants  in the  present case.

22. The learned  counsel for the  plaintiff appellants  also cited before  us  another Division  Bench  ruling of this court   in the case of  Madan Mohan  Vs.  Tejram George Coronation Hindu School Association and others (AIR (36)1949 Alld. 207. In this case    the plaintiff   had   sought two  reliefs  ; one for declaration  that the  plaintiff  was the  President of  the  School and second   for   declaration that certain  resolutions passed by the defendants were void and ultra vires. Injunction  was also   sought to prevent the  defendants from acting  upon the said resolutions passed by them and to prevent the  defendant no.2 from acting as the President, and also to prevent them from  interfering  with  his(plaintiff's) working. It was laid down  by the  Division  Bench  that the  first relief  relates to  declaration  of the  plaintiff  as President of the School  and  it  had no concern with the  immovable property and so it  was  the  pure relief  of declaration  and  section    7(iv)(a) of the Court Fees Act  was not applicable in respect of the  first  relief, but this section  was applicable in respect  of second relief   of declaration  for declaring  certain  resolutions to  be void  and  ultra vires, and the  relief  of injunction to prevent the defendants from acting upon those resolutions  was  by way of consequential relief and so section 7(iv)(a) of the Act  was applicable in  respect of  these reliefs. This ruling does  not render any help to the plaintiffs in the present case because  in the instant case, there  is no dispute  regarding any post like the  Principal  involving  pure and simple  declaration only,  but the dispute is in respect of  certain  immovable property,  and  declaratory reliefs have been  sought  in the  suit in respect  of   those properties with a consequential relief of injunction. In such a case  section 7  (iv)(a) of the Act is applicable  as laid down in this ruling.

23. The learned  counsel for the  plaintiff  appellants also  cited before us  the  Full Bench ruling of this court  in  the case of  Smt. Bibbi and another Vs. Shugan Chand and others (AIR 1968 Alld 216). In this case  it was held that  the sale deed is a  document securing    property  and  so the suit  for declaring the  sale deed to be unauthorised , void, illegal and  ineffective  as against the plaintiff, was within the ambit of  Section 7(iv) (a) of the  Court Fees  Act and Article  17 (iii) of Schedule II  is not applicable and the contrary view  taken  in Chief  Inspector  of Stamps Vs. Shanti Devi   AIR 1956 All 168 was over ruled.  This ruling  also does not render any  help  to the plaintiff appellants.

24. The learned counsel for the plaintiff appellants  also  cited before us the ruling  of  Hon'ble Apex Court  in the case of  State of   U.P.  Vs.  Ramkrishan  Burman  ( AIR 1971 SC 87). This appeal was filed before  Hon'ble Supreme Court  by the State of U.P.  against  the  judgment of this court in  the case of  R.K.Barman (supra).  The Hon'ble  Apex Court  dismissed the appeal  filed by the State  confirming the judgment  given by this court. The facts  of  the above  case being different from   the facts of  the instant case, as already discussed above, this ruling does not render any  help to the   present  plaintiff appellants.

25. The  learned counsel for the plaintiff appellants  also cited before us a ruling of  the  M.P. High   Court  in the case of  Smt. Sabina alias Farida Vs.  Mohd. Abdul Wasit ( AIR 1997 M.P. 25). In this case relying upon the  ruling  of the Hon'ble  Apex  Court in   the case of  Shamsher Singh Vs. Rajinder Prasad (AIR 1973 SC 2384), the  Court observed as follows:

"3-A:    Section 7(iv)(c) refers  to a prayer for  a declaratory decree and consequential relief. Where the plaintiff wants  to claim an injunction  which is a consequence of declaration or where without  declaration of right or status the injunction cannot be granted, Section 7(iv)(c) would apply with full force. Section 7(iv)(d) relates to  the relief of the  injunction. Article 17 of  Schedule II of Court-Fees Act  refers to certain suits wherein the fixed Court-fee is to be paid. It relates to such reliefs where the  plaintiff seeks to obtain declaratory decree where no  consequential relief is prayed. Section 7(iv)(c) and Article 17 of Schedule II read together lead to only  irresistible  conclusions that if no  consequential relief is prayed for Section 7(iv)(c) would  not be applicable  and plaintiff is not liable to pay the Court-fees on the market value of the property as a simple declaration would be sufficient. The Supreme Court  in the matter of Shamshersingh Vs. Rajinder Prashad, AIR 1973 SC 2384 has observed as under:

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". In the matter of Mahant Purshottam Dass V. Har Narain, AIR 1978 Delhi 114 (FB), the High Court following the observations of the Supreme Court further held that where the  Court held that the plaintiffs could not claim  the relief of injunction without praying for declaration  as prayed for, it must also  be held  that the  relief of declaration and injunction prayed for is  a  claim to obtain declaratory relief where consequential relief is prayed for."

 4. The true  test for ascertaining whether  the consequential  relief  in fact flows from the declaratory relief  is as to whether  the said  consequential  relief can be  claimed independently  of the declaration as a substantial relief  or not. Every injunction in a suit for  declaration  would not follow  from the  declaration. In a case  where plaintiff is in  possession of the property in his  own rights, comes  before the Court and seeks declaration that the property belongs to him and the other  party cannot  interfere with  his possession  then it cannot be said that plaintiff is  required to pay the  ad valorem Court-fees because the relief of injunction is a consequential relief. As observed  above the relief of injunction if can independently be claimed  then in every case it would not be a consequential relief. It is  settled law that if a person is in settled possession he cannot be evicted except in  accordance with  law. Such a person  if claims  a declaration  of his title  and injunction that the  defendants be restrained from interfering with his possession then the relief of injunction is not a consequence of the declaration because even if the Court is of the opinion that the declaration cannot be made in favour of the plaintiff then too the Court will grant an injunction in favour of the person who is in  settled possession . Such  a person would be called  upon to value both the reliefs separately and each of  the reliefs would be independent  of the other. In a suit of this nature  the  plaintiff is not seeking the  relief of injunction  as consequential relief but is  entitled to claim the same  because of his settled  possession. In  such a case  Section 7(iv)(d) of the Court-fees Act would be applicable for  valuing  the relief  of injunction and Article 17 of Schedule II of the  Act  would provide the Court-fees for the said declaration."

It is to be seen  that  in this case the plaintiff  had sought the relief of  declaration of title to the disputed  house  on the basis of  her settled possession and had  also sought  injunction  to  restrain  defendants from  interfering  with her possession. It was held that the relief  of  injunction  was not  consequential to the relief of declaration and so  section 7 (iv)(a) of the Act was not applicable.

26. It was   contended  by the learned counsel for the plaintiff appellants that  in the present case  also the plaintiffs are  seeking declaration  of   title  in  exercise of their   own rights  to  the disputed property and  the  relief of  injunction   was not  a consequential  relief and so  Section   7(iv)(a) was not  applicable. We do  not  find any force in the  above contention. It is to be seen that  in the present case  the plaintiffs  have challenged the Will  allegedly  executed by Smt. Surendra Bala in favour of  Pt. Shyam  Lal Chaubey , defendant no.2. They have also  challenged the  agreement dated 25.5.1968 allegedly executed  by  Smt. Rajeshwari Devi in favour of  Vishnu Kumar  defendant no.1.  They have also challenged the transfer  deeds of the  disputed property  executed by  defendant no.1 in favour of defendant nos. 3 to 8.  Their claim rests   upon  the validity of   the Will dated 18.5.1964 in  favour  of Rajeshwari  Devi and    upon  adjudication of the Will in favour of defendant no.2   as  null and void . The  transfer deeds of the properties   in favour of    defendant nos. 3 to 8  will also have to be  declared  void  before  grant of  the  declaration  in the plaintiffs' favour,  and  the relief of injunction can not be granted  before grant of  declaration of title in favour of  the plaintiffs. As such,  in the present case, the  relief of injunction  is a consequential  relief and so the above ruling in   case of  Smt. Sabina  alias Farida  (supra)  does  not render any  help  to the  present plaintiff appellants.

27.     The learned counsel for the plaintiff appellants  also cited before us  the ruling of this court in the case of Smt.  Bina Rani Vs.  Fakir Chand  and others  ( 1986 A.L.J 86). In this case the  plaintiff had sought declaration  of   title in her favour  on the basis of   a Will and  in that suit   the Will  relied upon  by the  defendant was also challenged though no specific  relief was  sought  in respect of  the  latter  Will. It was held that  the  relief could be granted only  after holding  the Will in favour of the defendant  to  be  void  and so   Section 7(iv)(a) of the Act was held  applicable to that  case . In this way, this ruling  does not   render any help to the  plaintiff  appellants  in the present case.

28. The learned  counsel for the plaintiff appellants  also cited before us  a Division Bench  ruling  of this court  in the case of  Kailash  Chand Vs. Vth A.C.J. Meerut and others ( AIR 1999 Allahabad 151). This ruling  was also cited by the learned  counsel for the  respondents and  has  been discussed  in  para 18 of the  judgement . It does not render any help  to the  plaintiff appellants.

29. The learned  counsel  for the appellants also cited before us another Division Bench  ruling  in the case of Smt. Shefali Roy Vs. Hero  Jaswant Dass and others  ( AIR1992 Allahabad  254). In this case the plaintiff  had sought the  relief  of   declaration that  he was owner of  the disputed property  and the sale deed  relied upon  by the defendant  was  null and void . It was held  in this ruling that  the court fee was payable under Article 17 of Schedule II of the Court Fees Act  and section 7(iv) (a) of the   Act  was not applicable. This view  of   the Division Bench  was, however, not followed in the subsequent  Division Bench  ruling  in the case of Kailash Chand (supra) and their Lordships   relying upon  Full Bench   decision  in the case of  Smt. Bibbi Vs. Shugan Chand :AIR 1968 All 216 (discussed  above in para 26) held that a suit  involving  cancellation  or adjudication as void or  voidable  of  such a  document is  covered under  section  7(iv)(a) of the Act  and  Article 17 (iii) of Schedule  II of the Court Fees Act  is not applicable. In this view of the matter, the ruling  in Shefali Roy's case (supra) cannot be relied upon.

30.           The legal position  that emerges  out of the discussion, attempted above,  is that  Section  7(iv)(a) of the Court Fees Act  is applicable in the present case    and so  the  learned  Civil Judge  committed  no illegality  by holding  that the  court fee of Rs.200/- paid by the plaintiffs  separately   for the relief of declaration   under Article 17(iii) of the  Court Fees Act  as well as of Rs. 500/-  for the  relief of injunction  was insufficient  and  court  fee   should have been paid  on   the relief of    declaration  as well on  the  consequential  relief of injunction on the entire  valuation of suit  property  in accordance with  section 7(iv)(a) of the Act . The order passed by  the court below   does not suffer from any   illegality  and it deserves to be   upheld .  The appeal,in this way, has no  force  and is liable to be dismissed.

31. The appeal is  dismissed  with costs. The order dated 23.4.2005 passed by the  Addl. District Judge   is confirmed.

Dated:

MLK                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            


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