GANGA RAM Vs. KRISHEN LAL

JUDGEMENT

(1.) THIS is a revision application directed against an order of the Sub -Judge A.D.M., Jammu, by which the plaintiff applicants suit for the declaration that the sale -deed in respect of a house situate in Mohalla Ustad, Jammu, dated 18th December, 1955 executed by defendant No. 2, 31 years after her marriage, in favour of defendant No. 1 was void and ineffective so far as the interests of the applicant are concerned and for possession of the house has been held to fall under S. 7 v of the Court -fees Act and not under S. 7iv c thereof. The plaintiff had valued the suit for purposes of court -fees and jurisdiction at Rs. 105/ -. Under S. 7 v of the Court -fees Act he should have paid court -fees on the market value of the house in dispute,

(2.) I have heard arguments. The learned counsel for the plaintiff applicant relies on Harkishan Lal v. Barkat Ali, AIR 1942 Lah 209 A, while the learned counsel for the respondent refers to the basic Privy Council authority, Bijoy Gopal Mukerji v. Krishna Mahishi, ILR 34 Cal 329 PC B, Purshottamdas v. Ulphatrai, AIR, 1954 Madh -B 17 C and Ranjit Singh v. Birinder Kumar, AIR 1952 Pepsu 168 D. In AIR 1942 Lah 209 A it is laid down that, where it is open to the plaintiff to frame his suit in one or two ways, there is no obligation in law that he should frame his suit in any other way than he would choose, to frame it. It is also held in this ruling that the court -fee will be determined on the nature of the suit as framed at the choice of the plaintiff always provided it is legally open to him to do so, and it cannot be said that in all suits where possession is one of the reliefs claimed, the suit must of necessity fall within S. 7v. In this case the suit was instituted by a person alleging himself to be the son of a certain, alienor for a declaration that the sale of certain joint Hindu family property effected by the alienor, the father of the plaintiff, had not been made for family necessity and consideration and was therefore, not binding on the plaintiff. The plaintiff in that case also asked for joint possession of the property sold along with his father. In AIR 1952 Pepsu 168 D the suit had been instituted by two sons alleging that their father Ram Sarup, his brother, Piare Lal, and the plaintiffs were members of a joint Hindu family, that their father and his brother, Piare Lal, had alienated certain properties which belonged to the joint Hindu family and since the alienations were not made for a family necessity the plaintiffs were not bound by them. They, therefore, prayed for a declaration that the said alienations did not affect their interests and also sought joint possession of the properties which were the subject -matter of the alienations. The suit was valued for purposes of court -fee and jurisdiction at Rs. 110/ -. The contesting defendants, inter alia, raised the objection that the suit was governed by S. 7v and not S. 7iv of the Court -fees Act. The trial Court overruled: this objection and held that proper court -fee had been paid. In revision the Pepsu High Court followed ILR 34 Cal 329 B and held that when a transaction is voidable at the option of a person, it means that it is open to that person either to affirm it or to avoid it and if he elects to avoid it, it becomes a nullity so far as he is concerned and it is unnecessary for him thereafter to have it declared as void by a Court of law. Where, therefore, an alienation of a joint Hindu family property is made by the manager or a coparcener and another member of the family sues for joint possession of the alienated property, all that the plaintiff has to prove before he can claim possession is that he has avoided the alienation and for this the1 mere bringing of a suit for possession on the allegation that he did not affirm the alienation, amounts to the exercise of the option on his part. In such a suit, the declaration claimed by the plaintiff that the alienation does not affect his interest and is not binding on him is a mere surplusage and the real relief being that of possession, the suit falls within the purview of S. 7 v for the purpose of court -fee and not S. 7iv c. AIR 1954 Madh -B 17 C is also to the same effect. Here the suit was by a person claiming a declaration that an alienation of a certain joint family property made by his uncle is not binding on him and for possession of the property. The court -fee was to be paid on the market value of the property and not according to the amount at which the plaintiff had valued the relief sought. In AIR 1952 Pepsu 168 D, AIR 1942 Lah 209 A was referred to and dissented from. The reason given was that even when an alienation stood in the plaintiffs way, according to law, he can ignore that alienation & bring a suit for possession of the alienated property on the mere assertion that the alienation was not binding upon him & if he still sued for declaration and possession and described the relief for possession as consequential, it was plain that he was splitting up the relief of possession which was the real relief, into two parts with a view to avoiding payment of proper court -fee. I have considered these cases with care. For the purpose of the case before me I do not think it necessary to decide the point with respect to which the Lahore ruling and the PEPSU ruling supported by Madhya Bharat ruling are at variance. The learned counsel for the respondent has argued that assuming that the Lahore ruling referred to above enunciates the correct legal view even then the present revision application should be dismissed because of the observations made in the penultimate paragraph of the Lahore judgment. This reads as follows: - "There is one exception to the above rule, namely, where on the allegations in the plaint itself the document, which is alleged to stand in his way, is not voidable but void. In such a case, it is obvious that a prayer for a declaration that the document be declared void is a surplusage and the suit again remains a suit for possession. The matter is otherwise where, as in this case, the document that stands in the way of the plaintiffs right to possess is not void but is only voidable. X X X X X X X Now in the case before me it is clearly stated in paragraph 2 of the plaint that defendant No. 2 was the widow of Devia and after Devias death she had married another person by chadaradazi and had lived with him for the last 31 years and that she had thereby lost all her rights in the property of her first husband Devia. According to the allegations in the plaint, therefore, the document was not merely voidable but void because it was executed by a person who had no interest whatsoever in the property at the time when the deed was executed. Under these circumstances there is no doubt that the trial Court has correctly decided the issue before it. Without expressing any opinion on the merits of the Lahore case referred to above it is clear that the plaintiff applicants case does not even come within the rule laid down in that case. This revision application is, therefore, dismissed. Costs shall abide the event.