ANUP KUMAR Vs. BHAGWAT ETC.

JUDGEMENT

(1.) THIS order will dispose of eleven revision petitions (No. 450 and 454 to 463 of 1971). These have arisen out of eleven suits filed by Anup Kumar now petitioner before me challenging as many alienations made by his father of various areas of agricultural land. The allegations in the plaint were that the land in dispute in each case was part of the joint Hindu family property of which Ram Lal Gandhi the alienor was the the Karta and father that he had ample income from the ancestral property inherited by him which he wasted in an extravagant manner on wine and other bad habits, that all these alienations were made within a period of two years between (sic) and 1959 that these alienations were not binding on the plaintiff who was an owner in the property by birth and that these alienations were ineffective as against him. It was stated that the suit had been brought within limitation because at the time when the alienations were effected the plaintiff was a minor. In view of the above a prayer was made for grant of a decree for possession of the property in dispute jointly with the father. One of the objections taken by the respective defendants in these cases was that the Court -fee as paid was not correct. The question addressed to the Court was whether the court -fee was payable under section 7(iv)(c) or section 7(v) or any other section of the Court -Fees Act, 1870. Admittedly, if it was to be treated as a simple suit for possession, the court -fee would be payable on ad -valorem basis under section 7(v) of the Act. On the other hand if it is a case falling under section 7(iv)(c), the court -fee would be payable on the, value as put by the plaintiff. If it was a suit for possession after cancellation of the sale deed, the court -fee would be payable on ad -valorem basis. The trial court come to the conclusion that although the plaintiff was not himself a party to the sale deed, yet the sale deed was binding on him, he being a member of the joint Hindu family, and therefore, he has to get this deed set aside, and consequently ad -valorem court -fee is payable. Against these orders these revision petitions have been filed.

(2.) SECTION 7(iv)(c) of the Act is applicable to a case where a declaration is sought and is a consequential relief some other relief is also prayed for. The case directly on the point, referred to by the Learned Counsel for the petitioner before me, is Harkiskan Lal v. Barkat Ali : A.I.R. 1942 Lah. 209. That was an exactly similar case in which it was held that "a suit by a son for a declaration that the sale of joint Hindu family property effected by his father had not been made for family necessity and was not binding on him, and for joint possession of the property sold along with his father, falls under section 7(iv)(c) in as much as an alienation by the father of a Hindu joint family is not void but is only voidable at the instance of his sons, for the alienation may be binding on the Sons if it was made for necessity or for the benefit of the joint Hindu family or for any other reason by which under Hindu law such an alienation may bind the sons. It is, therefore, necessary for the plaintiff to get rid of the voidable document by having the Court declare that in the circumstances of the case if should be avoided at the plaintiff's request. The possession which he then claims flows from and is a necessary consequence of the relief claimed, namely, that the document does not stand in the way of the plaintiff. The remedy of possession, therefore, is essentially a consequential relief flowing from and arising out of the declaration sought by the plaintiff". At the end of the judgment the argument that it was incumbent on the plaintiff to get rid of the sale deed was dealt with as follows: -

(3.) FOR the reasons given above, therefore, I accept these revisions set aside the order of the Court below and hold that the suit for declaration and for consequential relief, as stated, would fall under section 7(iv)(c) of the Act. There will be no order as to costs in these proceedings. The counsel will direct the parties to appear in the court below on 6th of December, 1971.