P L D 1957 (W (PLP)

KAIKAUS, J.‑

Haji Jalal Din, who owned some immovable property in Lahore, died on the 4th of November 1950 leaving behind Mst. Fazl‑un‑Nisa, his widow, Mst. Wazir Begum and Mst. Bakht‑un‑Nisa (alias Bakhtawar), two daughters, and Muhammad Siddiq and Muhammad Amin, sons of a brother. Muhammad Siddiq and Muhammad Amin filed a suit for administration of the property of the deceased which suit is still pending. During the pendency of the suit, on the 5th of May 1951, Mst. Fazl‑un‑Nisa, Mst. Bakht‑un‑Nisa and Mst. Wazir Begum executed a deed of relinquishment in favour of Haji Ashiq Husain, the son of Mst. Bakht‑un‑Nisa, releasing all their rights in the estate of Haji Jalal Din in favour of Haji Ashiq Husain. The suit out of which the present application for revision arises was filed by Mst. Wazir Begum against Haji Ashiq Husain. The allegations in the plaint are that Haji Ashiq Husain represented to the plaintiff as well as to the other two executants of the deed of relinquishment that in order to defeat Muhammad Siddiq and Muhammad Amin in the administration suit, it was necessary that the ladies execute a deed of relinquishment in his favour. The reliefs claimed in the suit are that it may be declared that the deed of relinquishment dated the 5th of May 1951 is fictitious, ineffective and void, and does not affect the rights of the plaintiff in the estate of Haji Jalal Din and that the said deed be cancelled. Defendants to the suit are Haji Ashiq Husain and Mst. Bakht‑un‑Nisa, Mst. Fazl‑un‑Nisa having died in the meantime. The plaintiff valued the plaint for the purpose of Court fee at Rs. 130, the contention on her behalf being that the case was one of a declaratory decree with consequential relief and under section 7 (iv) (c) of the Court Fees Act, valuation for Court‑fee rested with the plaintiff. Haji Ashiq Husain, the contesting defendant, objected to the valuation of the suit 'on the ground that the relief of cancellation could not be claimed as a consequential relief and that for the purpose of Court‑fee, the suit did not fall under section 7 (iv) (c) of the Court Fees Act but Court fee will have to be paid on the relief of cancellation as a substantial relief under Schedule I, Article 1 of the Court Fees Act. The learned Civil judge, who tried the suit, framed the following two issues :‑ (1) Can the plaintiff pray for the cancellation of the document in dispute as a consequential relief, if not what is its effect ? (2) If issue No. 1 is proved, had the suit been properly valued for the purpose of Court‑fee and jurisdiction ? On issue No. 1, he reached the conclusion that cancellation was a relief which could not be asked for as a consequential relief. He held, therefore, that the plaintiff should ask for the cancellation of the document as a substantial relief and should pay proper Court‑fee on it. Second issue was left undecided in view of the finding on the first issue. This is an applica tion in revision by the plaintiff challenging the order of the Court. The contention on behalf of the plaintiff, as already stated, is that the suit falls under section 7 (iv) (c) of the Court Fees Act, i.e., it is a suit in which a declaratory decree as well as consequential relief has been claimed. It is contended that the declaration as to the relinquishment deed, being void and ineffective on account of fraud etc., is a declaration within the meaning of section 7 (iv) (c) and cancellation of the document is a consequential relief. The learned Civil judge has, in support of the view that he has taken, relied on the Full Bench Judgment of this Court in Mst. Zeb‑un‑Nisa and others v. Chaudhri Din Muhammad and others (A I R 1941 Lah. 97) and the same has been relied upon before me by learned counsel for the respondents. It is argued on behalf of the respondents that the principle of that judgment is fully applicable to the present case. Before I proceed, therefore, to discuss the question which arises before me, I will examine that judgment in some detail. The facts in Mst. Zeb‑un‑Nisa and others v. Chaudhri Din Muhammad and others were that one Ghulam Rasul had executed a Waqf‑al‑Aulad for the benefit of himself as well as his descendants and for certain charitable purposes. He was the first Mutawalli and on his death, his son, Din Muhammad, was to succeed him. Din Muhammad repudiated the Waqf, and he and his brother effected certain alienations of the dedicated property. At this some of the descendants of the Waqif, who had an interest in the proper administration of the Waqf, filed a suit claiming a two‑fold declaration: (1) that the property described in the plaint was Waqf and (2) that the alienations thereof effected by the Mutawalli and his brother were null, void and were ineffectual against the Waqf property. The learned judges of the Full Bench held (1) that the first part of the relief was purely declaratory ; (2) that the second prayer involved the substantial relief of cancellation and was not merely a declaration, and (3) that the relief of cancellation could nit flow from the declaration that the property was Waqf and was not, therefore, a consequential relief so far as that. declaration was concerned. The learned judges defined consequential relief to be one which was not otherwise provided for in the Court Fees Act, which flowed directly from the declaration asked for, and which could not be granted independently of the declaration as a substantial relief. The learned judges further held that cancellation being a substantial relief and not a consequential relief it was necessary to pay Court fee on it under Article 1, Schedule 1 of the Court Fees Act, i.e., according to the value of the relief. It is contended before me on behalf of the defendant‑ respondents that the present case is covered by the Full Bench decision, for it is on facts indistinguishable from that case. Both are suits for declaration bf the invalidity of a deed and for its cancellation, with this difference only that here cancell ation has been expressly prayed for while there it was regarded as involved in the relief of declaration as to invalidity. The difference obviously is not material. There is no doubt that on the facts, this case is similar to the case before the Full Bench although the plaintiff is, in the present case, challenging a deed to which he is a party and in that case beneficiaries were suing to set aside deeds executed by a Mutawalli. The learned judges of the Full Bench had held that although the plaintiffs in that suit were not parties to the deeds which they sought to set aside, they were bound to sue for their cancellation, for without cancel lation there could be no effective declaration in favour of the plaintiffs and therefore cancellation was necessarily involved in the second relief prayed for. So the reliefs claimed in the present case can quite legitimately be said to be similar to those involved in the second part of the declaration in the Full Bench case and had matters stopped here there would be good deal of force in the argument that in the present case too ad valorem Court fee should be paid. However, though the actual decision in that case favours the defendants there are some rules stated in the judgment, or some observations which go in favour of the plaintiff petitioner and with great respect to the learned Judges who decided the case, the judgment is self‑inconsistent. Ah the same time, this Full Bench case, which has in part been expressly overruled in Mian Karam 1lahi v. Muhammad Bashir (P L D 1949 Lah. 8), has not been approved in a later Full Bench case namely B. Ghulam Qadir v. Messrs. Bulaqi Mall & Sons (P L D 1949 Lah. 461), it has been distinguished in a D. B. case in 1949 and not applied to a case of declaration relating to decree (A I R 1941 Lah. 284) and in another D. B. case, the observations in it were regarded as confined to the particular facts of the case Abdul Aziz v. Muhammad Sadiq (P L D 1952 Lah. 495). I will first explain observations in that judgment which go to help the plaintiff and which are not consistent with the actual decision of the case. The learned judges had pro nounced the relief of cancellation to be not a consequential relief on the ground that it did not directly flow from the first declaration granted; namely, that the property was Waqf. The learned judges did not, however, consider further whether in the second part of the relief there was not, in addition to the relief of cancellation, a declaration prayed for, and whether cancellation did not directly flow from that declaration. The second part of the relief prayed for was a declaration that the alienation‑were null and void and ineffectual. Cancella tion had not been expressly prayed for and it had only been regarded as involved in the second part of the declaration. The learned Judges did not consider whether cancellation was not a relief that flowed directly from the declaration as to invalidity of the alienation. The effect of their actual decision is that this did not involve a declaration at all. If it did, then the relief of cancellation would flow from it and the suit, (quite apart from the first part of declaration relating to the Waqf nature of the property) would be one for a declaratory decree and consequential relief. Yet in other parts of the judgment the learned judges have regarded a declaration as to the invalidity of a deed like the one before them, or the invalidity of a decree as including a declaration as well as consequential relief. Of course it was open to the learned Judges to take the view that a declaration that a particular deed, transaction, decree, award or instrument, is void and ineffectual as against the plaintiff, is not one in which a declaratory decree can be said to be claimed. Whether such a view could be supported on authority or in reason or not, the learned Judges would have been consistent had they held that this would not be a declaratory decree. But it is only if the learned judges held this that they could have said the suit before them was not one falling under section 7 (EN) (c). Yet the judgment would show that the learned judges did regard a declaration as to the invalidity, nullity or ineffective ness of a deed or decree' a declaratory decree within section 7 (iv) (c) which, when it was coupled with some relief that flows from this declaration, would become a declaratory decree with consequential relief. For instance, while dis cussing the question as to whether a relief of declaration includes a consequential relief in cases whether a deed or decree is challenged, Bhide, J. (with whom the other learned Judges agree) says :‑‑ "It seems to me that neither the answer to the question whether the plaintiff is or not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the Court‑fee payable in a suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and hence it seems to have been held in such cases that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family, (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the family. If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must, I think, be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree, which is sought to be declared null and void. The case dealt with in Sohindar Singh v. Shankar (A I R 1936 Lah. 166) seems to have been of this des cription. The case of an alienation by a Mutwalli of Waqf property would also appear to stand on a similar footing. In the case of waqf property, it is only the trustee or the Mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If, therefore, a person sues to get such an alienation declared null and void, he can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief". It will be observed that according to the learned judge in cases of the kind to which he is referring "the declaration must . . . . . . be held to include consequential relief". At more than one place in this paragraph it is made clear that declaration as to the invalidity of a deed or alienation would be declaratory decrees with consequential relief. Even with respect to a deed executed by a Mutwalli it has, been clearly stated in this paragraph that a declaration regarding its invalidity "may be found to include a consequential relief". The word used is "include" and also the words "consequential relief" are appropriate only when declaration is also prayed for. So it should be clear that, according to the learned judges, a declaration that a deed executed by a Mutwalli is null and void amounts to a declaratory decree with conse quential relief. How, in spite of this, the learned Judges held that the case before them was not one of declaratory decree with consequential relief, I have not, with all respect to the learned judges, been able to follow. When dealing with the case before them, the learned judges only considered whether the relief of cancellation directly flowed from the declaration as to the property in dispute being Waqf. They did not consider at all whether the second part of the declara tion claimed itself constituted a declaratory decree with consequential relief. Again at page 105, the learned judge says: "If a plaintiff sues for a declaration that a certain decree passed against him is null and void and is incapable of being executed against him, the latter part of the declaration may be looked upon as a consequential relief resulting from the former". Now, here, the learned judges have held quite clearly, that when a plaintiff sues for a declaration as to a decree being null and void and incapable of execution, then the earlier part of the relief is declaratory and the latter part is consequential relief. I am unable to see any distinction in this respect between a declaration relating to a decree and one relating to a deed, and no such distinction appears in the judgment of the Full Bench. Further on, the learned judge referred to Deokali Koer v. Kedar Nath (I L R 39 Cal. 704), the relief claimed in which was : "That it may be declared that the registered deed, dated 1st June 1896, for Rs. 14,000, executed by defendant 9 in favour of the father and ancestors of defendants 1 to 8, is collusive, nominal, invalid, fraudulent and without con sideration ; that the decree passed on the basis thereof which is pending execution in No. 83 of 1909 in the first Court of Subordinate judge at Arrah has been collusively and fraudulently obtained and it is ineffectual, inoperative and invalid ; and that for the satisfaction of the said decree, the mortgaged property in question mentioned in said decree cannot be sold". and the learned judge said : "It is, therefore, clear that in 39 Cal. 704 the plaintiff was really asking not merely for a declaration but also for substantial relief". It should be clear, therefore, that while in respect of the suit that was before the learned judges, they have regarded the declaration as to ineffectiveness of a deed as amounting to relief of cancellation alone, they have otherwise accepted that such a declaration is not merely a substantial relief but also a declara tion and that in case of declaration as to deeds or decrees the relief of cancellation may be regarded as flowing from the declaration. This is not the first time the Full Bench judgment is being interpreted in this manner. In Mian Allah Yar v. Anjuman Imdad Qarza, Basti Chah Kotwala Dakhli Jalalpur (A I R 1941 Lah. 284), Tek Chand and Beckett JJ. had to deal with a. suit in which a similar declaration had been asked for in respect of a decree. Before the learned judges, Mst Zeb‑un‑Nisa and others v. Ch. Din Muhammad and others was cited against the plaintiff. The learned judges quoted the paragraph from p. 105 which I have quoted above and held that the Full Bench judgment supported the case of the plaintiff. So even if we are to look at the Full Bench judgment itself, it would support the plaintiff's case. It may be urged that there is a definition of consequential relief in the judgment (I have already quoted) and we should ' consider whether, according to that definition, this case is one of consequential relief. In the first place, as the judgment regards a declara tion as to invalidity of a document a declaratory decree with consequential relief, we should assume that this interpretation is in accord with the definition. In the second place, it should be remembered that the judgment in A I R 1941 Lah. 97 has not been followed with respect to its definition of consequential relief in later judgments of our Court. In B. Ghulam Qadir v. Messrs Bulaqi Mall & Sons (P L D 1949 Lah. 461 (F, B.)), the reliefs asked for were a declaration as to invalidity of a decree and a consequential relief in the form of an injunction restraining the defendants from executing a decree. It was argued before the learned judges constituting the Full Bench that, according to the definition of consequential relief as accepted by the Full Bench of the Allahabad High Court in Kalu Ram v. Babu Lal and another (I L R 54 All. 812), the cancellation of a decree was not a conse quential relief. The learned judges were of the opinion that the Allahabad case put too narrow an interpretation on the phrase "consequential relief". It is to be noted that it is the definition stated by this Full Bench judgment of the Allahabad High Court which has been adopted in Mst. Zeb un‑Nisa and others v. Ch. Din Muhammad and others. The learned judges in B. Ghulam Qadir v. Messrs Bulaqi Mal & Sons also approved of the judgment in Mian Allah Yar v. Anjuman Imdad Qarza Basti Kotwala Dakhli Jalalpur delivered by Tek Chand and Beckett JJ., to which I have already referred, and in which it had been held that "where a plaintiff is a party to a decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff or his obligations under the decree or the deed and hence in such cases the declaration involves consequential relief". The learned judges of the Full Bench approved further Harkishan Lal v. Barkat Ali and others (A I R 1942 Lah. 209), in which Dalip Singh and Sale, JJ. had held that even relief of possession could be a consequential relief within the meaning of section 7 (iv) (c), if it was a relief for obtaining which the setting aside of some voidable document was necessary. That was a case of alienation of joint family property. The reliefs prayed for were that the deed be held ineffectual against the rights of the plaintiffs who were members of the joint family and possession be granted. The suit was held to fall within section 7 (iv) (c) of the Court Fees Act in view of the fact that a member of the joint family, though not a party to the deed, could not get possession till the deed was set aside. According to the definition of "consequential relief", as given in Mst. Zeb‑un‑Nisa v. Ch. Din Muhammad a relief that is otherwise provided for in the Court Fees Act, cannot be "consequential relief". The relief of possession is separately provided for and, according to that definition, would not be consequential relief. Yet in Ghulam Qadir v. Bulaqi Mal & Sons, this was regarded as a possible conse quential relief for Harkisan Lal v. Barkat Ali (A I R 1942 Lah. 209), was approv ed. It may also be observed that this case is very similar to the case of a Mutwalli. It should be obvious that to determine the applicability of section 7 (iv) (c) to this case there are two points which call for decision. The first is whether a declaration, that a decree, award, deed or other instrument, is null and void and of no effect is a declaration within the meaning of section 7 (iv) (c) of the Court Fees Act. The second is whether the relief of cancellation is consequential relief in relation to such declaration. As regards the first question the declaration that a decree, order, deed, instrument or transaction is void, or ineffectual is a well‑recognised form of declaratory decree and there does not appear to be any reason for thinking that the Legislature when it enacted section 7 (iv) (c) intended to exclude this form of declaration from the purview of this provision. I may point out here that the question whether a purely declaratory decree can be granted apart from the provisions of section 42 of the Specific Relief Act is irrelevant in this case for the reason, inter alia, that even those Courts which held that a declaratory decree cannot be granted, apart from the provisions of section 42, do not say that a suit for a declaration as to the invalidity of a decree etc. is not a suit for a declaration. They only say it includes consequential relief. That is the view of the Full Bench in Mst. Zeb‑un‑Nisa v. Ch. Din Muhammad too. At page 108, the learned Judges say with reference to the two well‑known Privy Council cases, Robert Fischer v. Secretary of State (ILR 22 Mad. 270) and Partap Singh v. Bhabuti Singh (IL R35 All. 487), the first relating to a suit for a declaration as to the invalidity of an order passed by the Government and the second relating to a suit for setting aside an agreement and a decree based on the agreement, that these "were thus in substance suits for a declaration coupled with a conse quential relief". Earlier the learned judges had said that there was no reason to confine the declaratory decree in section 7 (iv) (c) to the declaration mentioned in section 42 of the Specific Relief Act. No case has been cited before me which may directly support the proposition that suits of the kind in dispute do not include a declaration, except one to which I will presently refer. On the other hand, a large number of cases can be cited in which declarations with respect to deeds, decrees, orders etc., have been regarded as declarations within the meaning of section 7 (iv) (c). The case relied upon by the defendant is the judgment of the Allahabad High Court in Kalu Ram v. Babu Lal and another (ILR 54 All, 812) which was approved in Mst. Zeb‑un‑Nisa and others v. Ch. Din Muhammad and others and which holds, so far as declaration of invalidity of a docu ment is concerned, that such relief is not declaratory at all. In that case the plaintiff had asked for reliefs with respect to a deed as well as with respect to a decree. The learned Judges held that so far as the relief relating to the deed being null and void was concerned, it fell within section 39 of the Specific Relief Act and was not a relief containing a declaration at all. With respect to the decree the learned judges held that, as the plaint asks simply for a cancellation of a decree and did not ask for a declaration at all as to its invalidity, the relief asked for was not within section 7 (iv) (c). The learned Judges apparently accepted, however, that if the relief asked for with respect to a decree was a declaration as to its invalidity as well as cancellation then it would fall within section 7 (iv) (c). With great respect to the learned Judges, I am note inclined to agree to the distinction created by the learned judges between a deed and a decree. Once we accept that a declaration that is beyond section 42 of the Specific Relief Act, is also a declaration within section 7 (iv) (c), there is no good reason for excluding a declaration relating to the invalidity of the documents from the purview of section 7 (iv) (c). The only reason given by the learned Judges for excluding declarations relating to the invalidity of the docu ments from the operation of section ? (iv) (c) is that there is a specific section in the Specific Relief Act, that is section 39, occurring in a separate chapter of that Act, which covers the relief of cancellation and, therefore, whenever a party prays for a relief which in face amounts to cancellation, it cannot be said that he is asking for any declaration. But as the learned judges have themselves observed, the Specific Relief Act was enacted in 1877 while the Court Fees Act was enacted in 1870. We cannot, therefore, while interpreting the Court Fees Act, take account of section 39 of the Specific Relief Act. Suppose a suit for a declaration as to the invalidity of a document was filed before 1877. The argument, which the learned judges have employed now on account of the existence of se5tion 39 of the Specific Relief Act, would not be available at that time. There would not be at that time any distinction between a declaration as to invalidity of a decree or a deed, and the declaration as to invalidity of the deed would have to be regarded also as a declaration within section 7 (iv) (c). It could hardly be urged that with the enactment of the Specific Relief Act, the liability to pay Court fee has undergone a change. There is another point to be considered in this connection. Let us assume that the transaction which is impeached in a suit for declaration as to invalidity is an oral transaction. It may be relating to land and may have subsequently been incorporated in the revenue records by means of a mutation. The plaintiff may have been forced to file a suit with respect to it, and to ask for a declaration as to its invalidity. There would be no question of cancellation of a document involved at all in that suit, because there would be no document executed by the parties to the transaction. It cannot be contended that a declaration as to invalidity of an oral transaction cannot be granted at all, and once it is conceded that it can be granted, there is no good reason why it is not to be regarded as a declaration if the transaction has been embodied in a document. It can even be urged that in all cases where a deed is impeached the real attack is on the transaction and the declaration prayed for relates to invalidity of the transaction itself although that transaction was subse quently incorporated in an instrument and that the cancellation of a document or deed is only a result of the invalidity of the transaction itself. I said there are a large number of cases holding that the cancellation of a deed or document, amounts to a declaratory decree with consequential relief and section 7 (iv) (c) applies. I will simply refer to Mst. Ruqia v. Bhatu Mahton and others (A I R 1944 Pat. 17 (F. B.)), Muhammad Hayat Khan v. Firm Jaspats Rai Babu Ram and others (A I R 1936 Lah. 703), Charan Das v. Mst. Jamna Devi and others (A I R 1929 Lah. 811) Hukam Singh and others v. Mst. Gyan Devi and others (87 P R 1916), Kubar Saran v. Raghubar and another (A I R 1929 Oudh 491), Mathura Prasad v. Ram Lal and others (A I R 1934 Oudh 505), Radha Sundar Roy and another v. Saktipada Roy (39 C W N 250) and Baburao and others v. Balajirao (A I R 1929 Nag. 71). As regards the second question (whether the relief of cancellation is consequential relief) there is no definition of consequential relief in any judgment of this Court except Mst. Zeb‑un‑Nisa v. Ch. Din Muhammad, though there are some cases which may be of help. The definition in Mst. Zeb‑un Niza v. Ch. Din Muhammad, as I have already stated, has not been followed in a later Full Bench case, and we may disregard. that definition though it is reasonable to assume that in he view of the learned judges who decided Mst. Zeb‑un‑Nisa v. Ch. Din Muhammad, even according to that definition, a suit to declare a deed null and void will include consequential relief, for they regard such suits as including consequential relief though without reference to the definition. The next question is whether I should frame my own and exhaustive definition. I do not feel the need of doing so in this case. Prima facie, every relief which directly flows from a declaration is consequential relief and, unless some good reason was shown for taking a different view, it should be liable to Court fee under section 7 (iv) (c). With respect to suits like the present, it has been held in a large number of cases that they fall within section 7 (iv) (c), and I see no reason to differ from them. It is not necessary for me to consider, whether a relief which does flow from a declaration (and is, therefore, prima facie a consequential relief) will, if it is otherwise specifically provided for in the Court Fees Act, be liable to be paid for under section 7 (iv) (c) or under the specific provision, for the relief of cancellation is not specifically provided for in the Court Fees Act. I will, however, in this connection, simply point out that in Harkishan Lal v. Barkat Ali and others (A I R 1942 Lah. 209), the relief of possession we regarded consequential relief and this case was approved by the Full Bench in B. Ghulam Qadir v. Messrs Bulaqi Maid Sons (P L D 1949 Lah. 461). I hold that in cases where a plaintiff seeks a declaration about an order, decree, deed, instrument or transaction and wherein either cancellation is in fact prayed for or it is implied in the declaratory relief, the case is one of declaratory A decree with consequential relief and is covered by section 7 (iv) (c). The plaintiff is entitled to put his own valuation for Court fee. The valuation for jurisdiction is to follow that for Court fees. This application in revision is accepted, the order of the trial Court is set aside and that Court is directed to proceed in accordance with what I have stated above. There is no order as to costs. A.H. Petition accepted