DHANI RAM Vs. MUNSHI LAL

JUDGEMENT

(1.) This F. A. F. O. is directed against the order dated 26. 8. 74 whereby the Court below has directed the plaintiffs to pay addi tional Court fee holding that the suit also involved cancellation of the sale deed. According to the plaint allegations one Khilla was the common ancestor. He had two sons, Fakire and Nanhu Lal. Fakire had one son Umrey, whoes widow is Smt. Champa defendant No 2. Nenhu Lal had one son Lakhan whose sons are the plaintiffs. The house in suit originally belonged to Khilla and it is said that his two sons became owners of half share each. Fakire's half share devolved on Umrey while Nanhu's half share devolved on his son Lakhan and whence the present plaintiffs. Umrey purported to transfer the entire property to defendant No. 1 under a sale deed dated 31. 3. 62. It is alleged in the plaint that at the time of execution of the document Umrey was an old man and did not have proper understanding. Umrey died in 1965. After his death defendant No. 1 obtained decree in suit No. 152 of 1965 on the stren gth of the sale-deed dated 31. 3. 62 against defendant No. 2 in respect of the entire house. Without claiming any relief either for cancellation of sale deed dated 31. 3. 62 or for adjudging void the decree in suit No. 152 of 1965 the plaintiff' merely prayed for partition of their half share in the house in ques tion completely ignoring the sale-deed and the decree. The suit was dismissed and the plaintiffs went in appeal. While the appeal was pending the Inspector of Stamps raised an objection that the Court fee paid in the trial Court as well as in appellate Court was deficient and that the same ought to have been paid under Section 7 (iv-A) of the Court Fees Act. After hearing the parties, the Court, by the impugned order, partially agreeing with the Stamp Inspector's report held that the amount of Court fee paid was insufficient and directed that the plaintiff should pay additional Court fee of Rs. 22. 50 on the plaint and also a like amount on the memo of appeal. Thus the plaintiffs were required to pay further fee of Rs. 45/- as against the Stamp Inspector's report that the deficiency in the Court fee was of Rs. 30/- It has been contended on behalf of the appellants that Section 7 (iv-A) of the Act (as amended in U. P.) is not applicable to the facts of the present case and the reported cases relied on by the Inspector of Stamps in his report did net apply to the facts of the present case at all. Section 7 (iv-A) reads as under:- (iv-A ). For cancellation or adjudging void instruments and decrees. In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instru ment securing money or other property having such value: (i) Where the plaintiff or his predecessors-in-title was a party to the decree or the instrument, according to the value of the subject matter, and (2) Where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject matter, and such value shall be deemed to be- if the whole decree or instrument is involved in the suit, the amount of which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree of instrument is involved in the suit, the amount or value of the property to which such part relates. Explanation; The value of the property for the purposes of this sub section, shall be the market value, which in the case of immovable pro perty shall be deemed to be the value as computed in accordance with sub-section (V), (V-A) or (V-B), as the case may be. Where the cancellation, or adjudging is void an instrument is sought for on the ground of competency, lack of jurisdiction on title, the point in issue is the question of jurisdiction or title and judgment can be given without going into the validity of the instrument, and hence in such a case no addi tional Court fee under sub-section (IV-A) of-Section 7 of the Court fees Act is chargeable. But where the instrument is sought to be cancelled or adjudged void on other grounds, this sub-section comes into operation and the addi tional Court fee shall be payable. From the long series of the cases, it is now well settled that normally for the purpose of the Court fee only allegations made in the plaint ought to be look ed into and it is not relevant to look into the averments made in the written statement. It is also well settled that it is not the form or the language in which the relief is couched which is material but the substance of the allega tions made in the body of the plaint in order to find out the true nature of the relief sought in suit. On a plain reading of this casa, it is obvious that no relief in respect of either the sale deed or the decree in suit No. 152 of 1965 has been claimed by the plaintiffs. The question, however, is whether the right which the plaintiffs claim could be granted to them without first canceling the sale deed or adjudging the decree as void ? If the plaintiffs can be granted effective relief without doing so, provision of Section 7-IV-A of the Act will not be attracted at all. According to the plaint allegations the pro perty in dispute originally belonged to their common ancestor Khilla who had two sons. The sale deed has been executed by one of the successors although he did not have any right to alienate more than his one half share therein. Even if he did so his co-sharers (the plaintiff) could certainly avoid the same and ig nore the sale deed to the extent if adversely affected their vight in the property. The validity of that sale deed will depend only on the rights which Umrey had in it. Those rights are neither being attacked nor disputed by the plain tiffs who rely entirely on the rights which they have, being the successors of Nanhu Lal. In Mohd. Habibur Rehman Khan v. Abdul Kadir Faruki (I. L. R. 1961 All. 17.) one Nanhi Begum had executed a perpetual lease in favour of the plaintiff who filed a suit for possession on the basis of the said lease deed. In the written statement, it was stated that Nanhi Begum had no right to execute the lease deed as she had previously executed a waqf deed and a gift deed of the very same property and by doing so she had divested herself of all interest in the property. The plaintiff then sought amendment in the plaint and claimed that both the deeds were void. It was alleged that even if it be held that the waqf was valid, Smt. Nanhi Begum as mutwalli was entitled to execute the lease deed. It was in these circumstances that it was held that the suit did involve cancella tion of both the wakf deed and the gift deed. Reliance was placed in this case on Chief Stamps Inspector v. Gopalji Mahraj (A. I. R, 1950'all. 231.) In that case plaintiff had sought possession claiming the title to the property under a prior deed of wakf on the allegation that the sale deed subsequently executed in favour of the defendant was fictitious and invalid. The plaintiff's title in that case depen ded on the validity of the earlier wakf deed. If that deed was valid the sub sequent transfer was meaningless and could be safely ignored. Even if sub sequent sale deed was a valid document and its cancellation was not sought, the plaintiff could still succeed on the strength of the first wakf deed. The very same position also obtains in the present case also. The right of the plaintiffs does not depend on the sale deed dated 31. 3. 1962. They also do not claim under Umrey their rights but depend entirely on the proof of their fact that Khilla was the original owner of the property and their one half share in the property has devolved on them by virtue of their belonging to the branch of one of Khilla's two sons i. e. Nanhu Lal. if the plaintiffs succeed in proving this they need not seek either the cancellations of sale-deed dated 31. 3. 1962 or get the decree in suit No. 152 of 1963 as void. They can certainly have their 1/2 share in the property partitioned whether or not the sale deed dated 31. 3. 1962 was valid and their rights will also not be affected by the decree in suit No. 152 of 1965. The principle of law that emerges in this case therefore is that unless the relief in the suit can be granted without first cancelling or adjudging void the deeds in question the relief in the suit can not be said to be in the alternative and Court fee, under Section 7-IV-A will have to be paid. In those cases however, where such cancellation etc. is not necessary the section can not be applied. Since the facts of A. I. R. 1961 Allahabad 17 are clearly distinguishable it cannot be taken as an authority for the decision of the present case. In fact, the facts in 1950 Allahabad 231, are nearer home to the facts of the instant case. The next case relied upon by the Chief Inspector of Stamps in his report is of Suraj Prasad v. Jagar Nath Prasad (A. I. R. 1955 All. . 319) where the plaintiff had filed a suit for partition alleging that an earlier partition agreed to by his father when he (the plaintiff) was a minor was invalid and that he was entitled to ignore the said partition. It was held that the plaintiff must pay Court fee under Section 7 (IV-A) because the very right of the plaintiff to claim partition afresh must follow cancellation of the earlier partition first and the plaintiffs could not get any relief without first getting the earlier partition declared or adjudged as invalid. Similarly in Udai Bhan Singh v. Lachhmart Das (A. I. R. 1955 All. , 667) a Division Bench of this Court was considering a case in which the plaintiff has sought declaration that he was the owner in possession of a particular village and that the same was not liable to be sold in execution of a decree. The allegations were that the village belonged to one Sheo Narain Singh who was succeeded by his widow Thakurain Sujan Kunwar and on her death the plaintiff as revisioner had become the owner of the village, since the Thakurain had only Hindu widows life interest in the same. It was further alleged that the decree passed against Thakurain during her life time could not be executed against that property which the plaintiff then claimed to be the owner. The Court repelled the argument on the ground that the rights of the plaintiff flowed from Smt. Sujan Kunwar and since there was a decree against her the plaintiff could not avoid the same unless he sought also cancellation of the earlier decree. The facts of that case are again distinguishable from the facts of the present case. In Vinod Kumar v. State Bank of India (1970 A. L. J. 269) which was a suit for declaration and cancellation or adjudging void the decree, it was held that the relief for declaration could not be granted to the plaintiff unless the decree was either cancelled or adjudged void and the Court fees under Section 7 (IV- A) was pay able. Such circumstances does not arise in the present case. Reference was then made to the case of Krishna Lal v. A. S. Higher Secondary School (A. I. R. 1963 All. 330) wherein it was held as under: "it is the plaint and the plaint alone that is to be considered under Section 7 for the purpose of determination of the proper Court fee pay able on the plaint. The substance of the plaint and not the form or language of it may have to be considered but it is the plaint that is to be considered and not any other document such as a written statement. No Court fee can be charged on a relief not claimed. A Court cannot compel a plaintiff to amend the plaint by adding a plea by removing or altering a plea that does not offend against the law of pleading. " In that case a Hindu widow inherited properties from her husband under a will. She executed deeds of sale and wakf in respect of a portion of the same, A reversioner filed a suit for a declaration that the sale deed and the waqf deed were not binding on him after the widow's death, she being a Hindu widow and the alienations being bad in law. Court fee on 1/5 of the aggregate amounts of the sale deed and the waqf deed under Section 7 (IV-A) (2) was paid. The Chief Inspector of Stamps reported that the additional Court fee was necessary since the suit involved either cancellation of the will or its being adjudged void or voidable in addition to the relief of adjudging the two deeds void or voidable. It was held that the Court fee paid was sufficient. No relief in respect of the will was claimed, but only a declaration that the two deeds would not bind the plaintiff after the widow's death and this depended on his proving that the widow was in possession as a Hindu widow. It was for the defendant to set up the will and to show that the widow was an absolute owner. The plaintiff had nothing to do with the will and he claimed no relief either expressly or impliedly in respect thereof. From the above discussion it would be clear that it is only in those cases where the relief can not be granted to the plaintiff without cancellation of or adjudging void or voidable of an instrument or the decree that Court fee be comes payable under Section 7 (IV-A ). If the relief could be granted to the plaintiffs without seeking either cancellation of any instrument or adjudging any instrument or decree void or voidable then no Court fee under Section 7 (VI-A) is payable. In the present case I have already observed that the right claimed by the plaintiffs was quite independent of rights transferred under the sale deed and right involved in the decree and if the plaintiffs succeed merely in proving their title through their ancestor Khilla they would not stand in need of either seeking cancellation of the sale deed dated 31. 3. 1962 or adjudging the decre in suit No. 152 of 1965 as void or voidable. Origin of plaintiff's right was by virtue of their grand father Lakhan being one of the sons of the common ancestor Khilla. If this right stood established on the record then the fact, that plaintiff's uncle Umrey had executed a sale-deed In respect of plaintiff's share in the property also will make no difference at all. In that event it would be deemed that Umrey had no title in respect of plaintiff's half share in dispute. The position would be different if plaintiffs had claimed some relief in respect of that half share of the property which did belong to Umrey. In that event seeking of cancellation of the sale deed dated 31. 3. 1962 would have become imperative. In view of the claim made in the plaint and in the circumstances adverted to above I hold that the Court fee under Section 7 (IV-A) was not payable by the plaintiffs in this case and the order of the Court below is liable to be set aside. In the result, the appeal succeeds and the order of the Court below demanding additional Court fee is set aside. The appeal will now be decided by the lower appellate Court on merits expeditiously. .