P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.‑The material facts of the case which are relevant for the purpose of this appeal may be briefly stated as follows :‑ On the 17th February 1934, one Haji Muhammad Akram Khan, a landlord of village Khan Mahi, executed a trust, com monly known as "waqf‑ul‑aulad" under Muhammadan Law in respect of his entire movable and immovable property for the benefit of himself, his descendants and also for certain charitable objects. According to this deed, he appointed himself to be the first Mulawali, and on his death the ablest and most honest among his descendants was to succeed him. Under the scheme of the waqf income of 1/3rd of the dedicated property had to be utilised towards the maintenance of the descendants of the Mutawali. His ten sons were to get two shares each, his eight daughters one share each and his three wives one eight shares jointly on the 12th November 1952, Muhammad Aslam Khan a son of Haji Muhammad Akram Khan instituted a suit against waqf‑al‑aulad (trust) through the Mutawali, praying for the following relief, namely:‑ "That a decree for a declaration to the effect that he Was in possession of lands measuring 1861 Kanals 3 marlas, a house called "Qila" situated in village Khan Mahi and a shop situated in Peshawar City, and that he was entitled to appropriate the income of the said property as maintenance allowance under the trust may be granted with costs. In the alternative, decree for the possession of the above property be passed." One Abdullah Khan purporting to be an attorney of Haji Muhammad Akram Khan Mutawali put in a written statement through his counsel Muhammad Akhtar Pleader on the 15th December, 1952, substantially conceding the claim of the plaintiff, with this difference that he agreed to the retention by the plaintiff of 1465 kanals of land instead of 1861 kanals 3 marlas. On the 22nd December, 1952 the plaintiff and Abdullah Khan submitted a compromise deed to the trial Court, according to which the plaintiff was to enjoy‑the possession and income of 1465 Kanals of land (described in the deed), the Qila situated in village Khan Mahi and the shop situated in Peshawar City. The same day a decree in the terms of the compromise deed was passed in favour of the plaintiff. On the 8th January, 1953, Muhammad Hassan, Muhammad Hasham and Muhammad Salam, three sons of Haji Muhammad Akram Khan and beneficiaries under the trust brought a suit against their brother Muhammad Aslant. Khan, their father Haji Muhammad Akram and the latter's alleged attorney Abdullah khan for a declaration to the effect that the decree passed in favour of Muhammad Aslam Khan on the 22nd December 1952, was obtained by fraud and that it was null and void and ineffectual against their interests. Haji Muhammad Akram Khan died during the pendency of the suit and accordingly his representatives‑in‑interest were duly impleaded as defendants. The plaintiffs' case was that Haji Muhammad Akram Khan Mutawali did not appear in the case throughout, and that the plaintiff Muhammad Aslam Khan taking undue advantage of his absence and in collusion with Abdullah Khan obtained the decree by fraud, It was further averred that Abdullah Khan had no power to compromise the suit with the plaintiff. The suit was contested by Muhammad Aslam Khan and in the result the following issues were framed:‑ (1) Whether the suit had been properly valued for court‑fee? (2) Whether the suit was not in proper form ? (3) Whether the plaint was bad for non‑description of the particulars of the fraud ? (4) Whether the plaintiffs were estopped from suing? (5) Whether the plaintiffs had no cause of action ? (6) Whether the compromise decree dated the 22nd December 1952, was void and ineffective on arty ground mentioned in para. 4 of the plaint? (7) To what relief were the plaintiffs entitled ? The first issue was answered in the affirmative. Issues No. 2, No. 3 and No. 4 were answered in the negative. Issue No. 5 was decided against the defendants. Under issue No. 6 it was held that the decree was the result of collusion between Muhammad Aslam Khan and Abdullah Khan and was obtained by fraud. The trial Court accordingly granted the plaintiffs a decree with costs for a declaration to the effect that the decree dated the 22nd December 1952, in favour of Muhammad Aslam Khan was obtained by fraud, and was therefore ineffective. Muhammad Adam Khan defendant has now preferred an appeal. At the request of the parties, the Court of Wards has also been made a party to the appeal, because the property in dispute is now under their management. Mian Qaim Shah counsel for Muhammad Hassan and Muhammad Hasham plaintiff respondents has raised a preliminary objection that the appeal abates since the heirs of Muhammad Salam who had died on the 2nd July 1955, were impleaded by the appellant on the 2nd June 1957, long after the prescribed period had expired. His contention is that the decree being joint and indivisible the failure of the appellant to implead the representatives‑in‑interest of Muhammad Salam deceased in time must result in the abatement of the appeal. In our opinion, the objection cannot prevail. The legal representatives of Muhammad Salam deceased respondent are his real brother Muhammad Bashir and his real sisters Mst. Harnida, Mst. Khatima, Mst. Amina, Mst. Khudeja, Mst. Madaina and Mst. Aisha, and his mother Mst. Khurshid. Except Mst. Khurshid all the rest were already impleaded as respondents in the first instance, and there fore it was not necessary for the appellant to implead them again after the death of Muhammad Salam. As regards Mst. Khurshid, the true position is that she had been divorced by Haji Muhammad Akram Khan, her husband, long before the appeal was filed, and according to the terms of the trust she had left no interest in the waqf property as a beneficiary. Secondly, it has been expressly mentioned in' the trust deed dated the 17th February 1934 that if any of the sons of the Mutawali died issueless, his share would go to the fund reserved for education. It is, there fore, quite obvious that Mst. Khurshid was not a legal heir of Muhammad Salam deceased in respect of the waqf property which is in dispute between the parties, and as such, she is not a necessary party having no interest as a beneficiary. This factual position is not denied by Mian Qaim Shah. Therefore, the appeal, as it stands, is competent, and we hold that it should proceed against the surviving respondents. We also order that an entry to the above effect be made on the record as provided for under Order XXII, rule 2, C. P. C. The first objection raised by the learned counsel for the appellant is that the suit against his client was one for declaration with consequential relief, and as such, under section 7 (iv) (c), Court Fees Act, ad valorem court‑fee was payable on the value of the property in dispute, whereas the plaintiffs had paid a court‑fee of Rs. 10 only, and that therefore there being no proper plaint before the trial Court the suit should have been dismissed. Mian Qaim Shah's reply to the objection is that the suit was purely for a declaration and no consequential relief was either prayed for or granted by the Court, and as such, the plaint was properly stamped with a Rs. 10 court‑fee. On a careful examination of the question in all its aspects, we are disposed to hold that the objection must prevail. As already pointed out, the suit was for a declaration that the decree was obtained by fraud. A further prayer was made to the effect that the decree being null and void was ineffectual against the interests of the plaintiffs. The decree passed by the trial Court was in the following terms :‑ " In the end I therefore grant the plaintiffs a decree against defendant No. 1 with costs for a declaration to the effect that the decree dated the 22nd December 1952, in favour of Muhammad Aslam Khan was obtained bar fraud and is ineffective. We are unable to accept the argument of Mian Qaim Shah that no consequential relief was asked for in the suit and that in so far as the language of the plaint goes, there is no prayer for any relief beyond mere declaration. The true test for determining the question of court‑fee in cases of the present type is the substance of the relief claimed as disclosed by the plaint, taken as a whole and not merely the form or the exact terms in which the relief claimed is expressed. The mere fact that the relief as stated in the prayer clause is couched in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed constitutes a declaration pure and simple and involves no other relief, the suit would undoubtedly fall under Sch. II, Art. 17 (iii), Court Fees Act, and the court‑fee payable would be Rs. 10 only. But if, on the other hand, it is found that though consequential relief is not asked for expressly but the declaratory relief claimed does involve a consequential relief, the suit will fall within the purview of section 7 (iv) (c). For instance, if a plaintiff sues for a declaration, that a certain decree passed is null and void, and as such is ineffectual against his interests, the latter part of the declaration certainly tantamounts to a consequential relief flowing from the former. If the declaration that a certain decree was obtained by fraud is granted, the effect of the declaration will be nothing short of the cancellation or setting aside of the decree. In the present case, the averments in the plaint, taken as a whole show clearly that the real object of the suit was not merely to secure a declaration that the decree was obtained by fraud, but also to have the decree set aside and have it held ineffectual against the interests of the plaintiffs. Therefore, we are firmly of the view that in substance and in effect the decree in question is not one merely for a declaration but also for a consequential relief, as asked for in the plaint, and consequently the suit falls within the purview of section 7 (iv) (c) and the court‑fee payable on the plaint would be ad valorem. In this view of the matter we are supported by a Full Bench authority of this Court in Mst. Zeb‑un‑Nisa and others v. Chaudhri Din Muhammad and others (A I R 1941 Lah. 97). This brings us to the consideration of the second question as to what ad valorem court‑fee is payable on the plaint. Section 7 (iv) (c) lays down that the plaintiff shall state the value of the relief in the plaint. In the present case, the plaintiffs have themselves valued the relief in the plaint at Rs. 5,

100. They did so no doubt for the purpose of jurisdiction but it can hardly be contended that the plaintiff can value the relief for the purpose of jurisdiction at one figure and for the purpose of court‑fee at another. Sections 8 and 9, Suits Valuation Act, show that except when specific rules to the contrary have been framed, the value for purposes of court‑fee and jurisdiction must be the same. In the present case, therefore, the plaintiffs were bound to fix the same value on the relief claimed for purpose of court‑fee and jurisdiction. The value of the relief for the purpose of jurisdiction was apparently fixed by the plaintiffs on the basis of the value of the subject‑matter in dispute, and we see no reason to find the value of the suit for the purpose of court‑fee to be a different one. There are a number of authorities in support of the view that the value stated by the plaintiff for the purpose of Jurisdic tion should also be taken as the value for the purpose of court‑fee. Therefore, we hold that the value of the relief for the purpose of court‑fee in the present case is the same as fixed by the plaintiffs in their plaint for the purpose of jurisdiction, which is Rs. 5,

100. It is not disputed by the learned counsel for the appellant that if the suit is found to fall under section 7 (iv) (c) of the Court Fees Act, his client is also liable to pay ad valorem court- fee on the memorandum of appeal. Consequently for the reasons given above, we direct under section 28 and section 12 read with section 10 of the Court Fees Act the plaintiff‑respondents to pay ad valorem court‑fee on the value of the subject‑matter of the suit; which is Rs. 5,

100. Since there is no proper and sufficiently stamped memorandum of appeal before us, we direct the appellant also under the same provisions of law to pay ad valorem court‑fee on the same amount. The plaintiff‑respondents and the appellant should pay their respective court‑fee by the 13th February 1959, (13th February including) In case of default the appeal or the suit, as the case may be, shall stand dismissed with cost. We have heard the learned counsel for the parties on merits also at great length. They do not wish to argue the appeal again. Final order on the remaining points raised and argued before us will be announced in due course after the 13th February 1959. FINAL ORDER HABIBULLAH KHAN, J.‑The facts of the case have been sufficiently detailed in our previous order of the 30th January 1959, which should be read as a part of this judgment, and these need not be repeated here. Next, it was argued by Mr. Peer Bakhsh Khan, learned counsel for the appellant, that the plaintiffs had no cause of action to bring the suit, and as such, the finding of the trial Court on the relevant issue was incorrect. His argument in brief was that it was only the Mutawali who could challenge the decree passed in favour of his client Muhammad Aslam Khan, and that Muhammad Hassan, Muhammad Hasham and Muhammad Salam lead no locus standi to sue. We do not see any substance in the contention. It is not disputed that Muhammad Hassan, Muhammad Hasham and Muhammad Salam plaintiffs were beneficiaries under the trust which, among other things, provided that the descendants, of Haji Muhammad Akram Khan Mutawali would receive only specific shares in the income of the trust property. The possession was to remain with the Mutawali, and none of the beneficiaries could take possession of any part of the property. Since the plaintiffs were beneficiaries and the retention of possession of a part of the waqf property by the plaintiff was likely to interfere with the administration of the trust and to adversely affect, the interests of the plaintiffs, they were certainly interested in bringing the suit and in having the decree passed in favour of Muhammad Aslam Khan declared null and void and ineffectual against their interests. The fact that Muhammad Salam ‑and Muhammad Hassan, two of the plaintiffs were some time later, after the creation of the trust disinherited by their father, apart from the question whether the father was or was not competent to disinherit them, will make no difference, because even if it is conceded that they were not competent to bring the suit the other plaintiff Muhammad Hasham had a right to sue and have the decree set aside. We, therefore, repel the objection. The last point argued before us was whether the suit brought by Muhammad Aslam Khan was compromised by an authorised person on behalf of Haji Muhammad Akram Khan defendant. It will be recalled that Haji Muhammad Akram Khan, the only defendant in the case, did not participate in the proceedings of the trial at any stage. The written statement was filed on his behalf by one Abdullah Khan who claimed to be his auhorised agent. On perusal of a copy of the power of attorney dated the 2nd July 1949 executed by Haji Muhammad Akram Khan in favour of Abdullah Khah, we find that in the first place the executants delegated no power to Abdullah Khan to file written statements in suits on his behalf, and secondly he had been expressly debarred from compromising suits without his written authority. Therefore, it is abundantly clear that Abdullah Khan was not competent either to file a written statement on behalf of Haji Muhammad Akram Khan, or to effect a compro mise in the suit. It is alleged that Haji Muhammad Akram Khan during the pendency of the suit had given a written chit to Abdullah Khan to compromise, and that this chit had been actually shown to his counsel, Muhammad Akhtar Khan. The allegation seems to be absolutely unfounded. The alleged chit has not been pro duced, while Muhammad Akhtar Khan pleader has completely denied any knowledge of it. In the alternative, it was urged by Mr. Peer Bakhsh Khan that even if it was held that Abdullah Khan was not competent to either file the written statement or to compromise the suit, Muhammad Akhtar Khan Pleader was empowered to do so on the strength of the power‑of‑attorney executed in his favour by Haji Muhammad Akram Khan. There is nothing on the record to prove that Haji Muhammad Akram Khan executed any power of‑attorney in favour of the pleader. When we consider the circumstances under which the power‑of‑attorney is alleged to have been executed and signed by Haji Muhammad Akram Khan, the story appears to us to be extremely improbable. It is said that Haji Muhammad Akram Khan personally came from his village to Peshawar for the purpose of engaging a pleader, but since Muhammad Akhtar Khan had no printed form of power‑of -attorney with him at that time, he sent back Haji Muhammad Akram Khan and later a printed form of power‑of attorney was delivered to Haji Muhammad Akram Khan in his village where he signed it in the presence of Abdullah Khan, and the same was brought back and handed over to Muhammad Akhtar Khan Pleader. It is important to point out that the printed form of the power‑of‑attorney which is alleged to have been signed by Haji Muhammad Akram Khan, is evidently borrowed from Sayad Ghazanfar Ali Shafi, Bar‑at‑Law. His name has been struck out and substituted by that of Muhammad Akhtar Khan, Pleader. In the first place, it is not cash to believe that no printed form of power‑of‑attorney was available with Muhammad Akhtar Khan when he was approached by Haji Muhammad Akram Khan, and secondly it is not quite understandable as to why no such form was borrowed from any other pleader at that time. It is also important to point out that Haji Muhammad Akram Khan has not been produced in evidence to prove that he either engaged Muhammad Akhtar Khan, Pleader or signed any power -of‑attorney in his favour. Muhammad Akhtar Khan in his statement in the trial Court was unable to say whether the power‑of‑attorney was actually signed by Haji Muhammad Akram Khan, because at that time he was not present. 1n view of the suspicious circumstances under which Abdullah Khan conducted himself during the trial of the suit and the fact that before the institution of the suit he had obtained a money decree against his master Haji Muhammad Akram Khan and had actually executed it, we do not consider it safe to act on his evi dence alone. So far as Muhammad Akhtar Khan, Pleader is concerned, on his own showing he acted on the instructions of Abdullah Khan and not of Haji Muhammad Akram Khan. Therefore, Abdullah Khan who had no authority from Haji Muhammad Akram Khan could not legally empower Muhammad Akhtar Khan, Pleader either to file a written statement on behalf of the defendant, or to compromise the suit. There are clear indications in the evi dence produced by the parties that the decree was secured by collusion between Muhammad Aslam Khan and Abdullah Khan. We consequently reject the objection and concur in the finding of the trial Court that the decree was obtained by fraud, and as such, was ineffectual against the interests of the plaintiff respondents. No other point was argued. In the result we dismiss the appeal with costs. Pleader's fee Rs. 200 (Two‑hundred). K. B. A./A. H. Appeal dismissed