SUKH LAL Vs. DEVI LAL

JUDGEMENT

(1.) The only question which we are called upon to decide at this stage is one of court-fees. We give below a few facts out of which the present question has arisen.

(2.) The appellants were defendants in the trial Court. The plaintiffs-respondents are sons of the respondent Bakhtawarlal who was impleaded as defendant No. 5 in the suit. The plaintiffs' case was that their father Bakhtawarlal & the plaintiffs were members of a joint Hindu family, and that Bakhtawarlal sold certain property to defendants Nos. 1 to 4, namely, Sukhlal, Hukmichand, Kastoorchand and Gahrilal, by a sale-deed dated 10-6-1944, for a sum of Rs. 800/-, and that the said property was ancestral property of the family and had been sold to the vendees above-named without the consent of the plaintiffs and without any family necessity. The plaintiffs, therefore, prayed that the sale-deed executed by Bakhtawarlal in favour of the vendees be cancelled. The plaintiffs valued their suit at Rs. 6000/- for purposes of jurisdiction. They alleged that they were in possession of the property in question and so paid a court-fee of Rs. 7/- only. The court-fee paid in the trial Court was correct according to the Mewar Court-fees Act, Smt. 1988. The learned Civil Judge who tried the suit granted a decree in favour of the plaintiffs that the sale-deed dated 10-6-1944, was null and void and left the parties to bear their own costs. Defendants Sukhlal, Hukmichand and others filed this first appeal on 7-12-1951 against the judgment and decree of the trial Court, They have paid a fixed court-fee stamp of Rs. 10/- only on the appeal. Learned counsel for the plaintiff-respondents has raised a preliminary objection that the court-fee paid by the appellants was insufficient.

(3.) It is urged by learned counsel for the defendant-appellants that the correct provision of the Court-fees Act, which applied to their appeal was Article 17 (iii) Schedule II. That Article provides that in suits to obtain a declaratory decree where no consequential relief was prayed for, the requisite court-fee was a sum of Rs. 10/-. It is contended, on the other hand, by learned counsel for the respondents that the plaintiffs' suit was not one for a mere declaration only; but it was a suit for a declaration and a consequential relief and, therefore, Article 17 (iii) Schedule II did not apply at all, but that the proper court-fee payable was under Section 7 (iv) (c) according to the amount at which the relief sought was valued in the plaint or memorandum of appeal, and that the plaintiffs had valued their claim for purposes of jurisdiction at a sum of Rs. 6000/- and, therefore, defendant-appellants should have paid court-fee on that amount.