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1960 Supreme(Pat) 137
PATNA HIGH COURT
K.Sahai, J.
Kedar Nath Gupta
Versus
Dulhin Moti Kuar
First Appeal No. 49 of 1957 ;
Decided On : AUGUST 16, 1960
In a suit for a declaration that a previous decree is not binding, fixed Court-fee is payable under Article 17 (iii) of Schedule II of the Court-fees Act, if the declaration sought may or may not have the effect of setting aside the previous decree.
Headnote:
COURT FEES - Suit for declaration that a previous decree is not binding - Whether ad valorem Court-fee payable under Section 7 (iv) (c) or fixed Court-fee under Article 17 (iii) of Schedule II of the Court-fees Act - Held, fixed Court-fee payable.
Fact of the Case:
Plaintiffs filed a suit for a declaration that a previous decree in a title suit was not binding on them, as plaintiff No. 1 was not properly represented and plaintiff No. 2 was not a party. The plaintiffs paid fixed Court-fee under Article 17 (iii) of Schedule II of the Court-fees Act.
Finding of the Court:
The court held that the plaintiffs were liable to pay Court-fee in accordance with Article 17 (iii) of the second schedule, and that the Court-fee paid by them was, therefore, sufficient.
Issues: Whether ad valorem Court-fee payable under Section 7 (iv) (c) or fixed Court-fee under Article 17 (iii) of Schedule II of the Court-fees Act.
Ratio Decidendi: The court held that the necessary effect of a declaration granted in accordance with the prayer made in a suit is to grant a consequential relief also, for instance, the setting aside of a previous decree, and valorem Court-fee is undoubtedly realisable. If, on the other hand, a declaration made as prayed may or may not have that effect, the Court cannot insist that the plaintiff should pray for the consequential relief so that Court-fee may be charged from him on that basis.
Final Decision: The court held that the plaintiffs were liable to pay Court-fee in accordance with Article 17 (iii) of the second schedule, and that the Court-fee paid by them was, therefore, sufficient.
Kamla Sahai, J.
1. The Taxing Officer has made this reference to me as Taxing Judge. The only question for consideration is whether the plaintiffs are liable to pay on their memorandum of appeal in this Court ad valorem Court-fee under Section 7 (iv) (c) on Rs. 19,000, at which they have valued the suit and the memorandum of appeal, or have properly paid the fixed Court-fee under Article 17 (iii) of Schedule II of the Court-fees Act.
2. The following genealogical table of the plaintiffs family is useful in appreciating the facts of the case:
JAGU LAL
|
___________________________________________________
| | |
sheo Prasad Sahu Ganesh Parsad Sahu Lakshmi =Gulabo Kuer Prasad
| Sahu
Sheonandan Prasad Gupta |
| |
Kedarnath Gupta(Plaintiff No.1) Dulhin MOti Kuer
| (defendant No.2)
Kanhaiya Prasad(minor)(Plaintiff No.2)
3. Shortly stated, the plaintiffs case is that Sheo Prasad and Ganesh Prasad instituted Title Suit No. 41 of 1939/36 of 1942 for partition of the family properties against Lakshmi Prasad, who was defendant No. 1. Kedar, plaintiff No. 1 of the present suit, i.e., Title Suit No. 24 of 1955, was impleaded in that suit as minor plaintiff No. 3 under the guardianship of Ganesh Prasad, and plaintiff No. 2, who is still a minor, was not a party at all. Gulabo Kuer, defendant No. 1 of this suit, was defendant No. 3 in the earlier suit. That suit was decreed; but the Court held, on issue No. 1, as follows:
"Defendant No. 3 is in fact married to defendant No. 1 in sagai form and the two defendants Nos. 1 and 3 have been for some time past living together as husband and wife along with plaintiff No. 3. Defendant No. 3, being the grandmother of the minor plaintiff No. 3, is the natural guardian of the aforesaid plaintiff No. 3 since the latter has been for long neglected and virtually abandoned by his grandfather, plaintiff No. 1. From my above findings, it follows conversely that plaintiff No. 3 never lived with, nor is under the guardianship of, plaintiff No. 2, and, as such, the latter cannot sue as his guardian."
4. The plaintiffs suit has been dismissed, and hence they have filed this first appeal in this Court. At the time of presentation of the appeal, the prayer in their plaint stood as under:
"1. That, on the submissions made above, it be declared that, the plaintiffs being the only surviving coparceners of their family and the judgment and decree in Title Suit No. 41 of 1939/36 of 1942 being illegal, erroneous and not binding on them, the defendants cannot get any relief or prosecute any proceedings on their basis against the plaintiffs.
"2. That the costs of this suit be awarded to the plaintiffs.
"3. That any other relief or reliefs to which the plaintiffs may be entitled be awarded to them".
Subsequently, the plaintiffs-appellants filed an application in this Court for amendment of their plaint by deleting relief No. 1 as it stood and substituting in its place the following relief:
"That, on the submissions made above, it be declared that the judgment and decree in Title Suit No. 41 of 1939/36 of 1942 is not binding upon the plaintiffs.
A Bench of this Court allowed this application by an order dated the 25th March, 1960. In the course of the order, their Lordships stated:
"The petiti
