P L D 1952 Lahore 495 (PLP)

CORNELIUS,J.‑This second appeal raises the question of the Court‑fee which is properly leviable upon the plaintiffs -appellants' suit relating to certain shares in the Lahore, Ferozepore Co‑operative Transport Society Limited, of the face value of Rs. 19,

800. There were 198 shares, each of the face value of Rs. 100, which stood in the name of the defendant Sh. Muhammad Sadiq who is the father of the five plaintiffs appellants. The allegations of fact made in the plaint were that 66 of these shares had been sold by Muhammad Sadiq to his wife Mst. Sakina Begum and she had further sold the same shares to one Mohan Lal. Subsequent to these transactions, the Society had by resolution forfeited the entire block of 198 shares. The plaintiffs have no direct interest in the shares, and gain locus standi to challenge these transactions upon the allegation that Muhammad Sadiq had created a waqf‑alai‑aulad in 1944 of all his property, including the shares in question, and as direct descendants of Muhammad Sadiq, the plaintiffs, are beneficiaries of this waqf. With respect to the sale to Mst. Sakina Begum they contend that it is ultra vires of Muhammad Sadiq in terms of the waqf, and consequently in effectual as against the waqf. As respects the order of for feiture they contend that it was made without authority and on no valid ground. Basing on these contentions, they claim four separate reliefs in the suit, the terms of which, as repro duced below, are taken from the judgment of the trial Court with slight modification.

1. A declaration that the suit property is waqf.

2. A declaration that the alienation of 66 shares in favour of Mst. Sakina Begum is void and ineffectual against the waqf property.

3. A declaration that the alienation in favour of Mohan Lal is similarly void and ineffectual against the waqf property.

4. A declaration that the order of forfeiture of 198 shares by the Society is void, illegal and ineffectual against the waqf property, and, by way of consequential relief, the issue of an injunction to the Society to cancel its resolution of for feiture. The Courts below have attempted to analyse the different reliefs claimed in the suit and to place them in various cate gories for purposes of taxation. They have held that the prayer for a declaration that the property is waqf is one‑ for a pure declaration. They have further held that the prayers for declarations in respect of the alienations in favour or Mst. Sakina Begum and Mohan Lal are prayers, not for con sequential reliefs, but for substantial reliefs which should be taxed independently, ad valorem. The prayer in respect of the forfeiture by the Society has been similarly regarded as a prayer for a substantial relief, to be taxed ad valorem under Article 1 of Schedule I of the Court‑fees Act. Upon the plaintiffs' failing to make good the deficiency of Court fee, in compliance with this determination, the trial Court rejected the plaint. An appeal was dismissed by the Senior Sub‑Judge, and the plaintiffs have now come to this Court in second appeal. The lower appellate Court has made specific reference to the Full Bench decision of this Court. published as Zeb‑ul‑Nisa v. Din Muhammad A I R 1941 Lah. 97 in support of the con clusions reached by itself and by the trial Court. That was a case in which a declaration was sought by certain persons, alleging themselves to be beneficiaries under a waqf, that certain property which had been alienated by their relatives was waqf, and further declarations were sought that these alienations were null and void and ineffectual as against the waqf property. The plaintiff had paid a Court‑fee of Rs. 10 only, as on a declaration without consequential relief falling under clause (iii) of Article 17 in the second Schedule of the Court‑fees Act. It was held by the Full Bench that the latter reliefs, although sought in the form of declarations, were tantamount to setting aside or cancellation of the alienations in question, and therefore could not be treated as merely declara tory reliefs. The Full Bench found that these reliefs had been properly taxed on the value of the property involved in the alienations. The question whether, in the present case, the face value of the shares in suit represents also their value for purposes of taxation has not been examined in the Courts below, and in the view we take of the proper Court‑fees payable, such examination appears to be unnecessary. Ignoring this possible, point of difference, the conclusions reached by the learned judges of the Courts below are indeed supported by the decision in Mst. Zeb‑ul‑Nisa's case. The authority of that decision has, however, been materially affected by two more recent decisions of Full Benches of this Court, reported as Ghulam Qadir v. Bulaqi Mall, P L D 1949 Lah. 461 and Karam Elahi v. Muhammad Bashir, P L D 1949 Lah.

8. In Mst. Zeb‑ul‑Nisa's case, the expression "consequential relief" as employed in section 7 (iv) (c) Court‑fees Act was interpreted in the sense placed upon it by a Full Bench of five judges of the Allahabad High Court in the case Kalu Ram v. Babu Lal, I L R 54 All. 812, viz., some relied which would flow directly from the declaration given, the valuation of which is not capable of being definitely ascertained, and which is not specifically provided for anywhere in the Court‑fees Act, and cannot be claimed independently of the declaration as a "sub stantial relief". Although‑in Mst. Zeb‑ul‑Msa's case the plaint iffs had not sought to bring their case under section 7 (iv) of the Act, but had treated all the declarations sought by them as a single declaration taxable under Article 17 (iii) in Schedule II of the Act, the Full Bench held that while the first declaration sought, viz., that the property involved was waqf, was a purely declaratory relief, the other declarations viz., that the alienations were void as against the waqf property were not "consequential reliefs" within the true meaning of that expression as defined by the Full Bench of the Allahabad High Court: These other reliefs were held to amount to "the setting aside or cancellation of the alienations". Again, follow ing the decision of the Full Bench of the Allahabad High Court, it was held the relief by way of cancellation of aliena tions fell to be taxed under Article 1 of Schedule I of the Act, i.e., ad valorem on the subject‑matter of the sales. The learned Judges went on to observe that even if the case fell under section 7 (iv) (c), the value for Court‑fees would necessarily be the same as that fixed by the plaintiffs for purposes of jurisdiction viz., ten lacs of rupees, in view of section 8, Suits Valuation Act 1887, and the absence of any rules under section 9 of that Act covering the particular case. The correctness of the latter conclusions was brought under examination before two Full Benches in 1949. In the first case, viz., Ghulam Qadir v. Bulaqi Mall, it was found that since the decision in Mst. Zeb‑ul‑Nisa's case, a rule had been framed under section 9, Suits Valuation Act, covering the later case, which would also apply to the facts of the earlier case, and the effect of the rule was to enable a plaintiff to fix a distinct and different value for the purposes of the Court- fees Act from that which was to apply, under the rule, for the purposes of the Suits Valuation Act. The earlier case was thus distinguishable, on this short ground, but the learned judges of the Full Bench went on to observe, with reference to the interpretation of the expression "consequential relief" adopted by the Allahabad High Court in the case Kalu Ram v. Babu Lal that it was "too restricted a meaning", and they cited with approval a Division Bench decision of this Court, reported as Harkishen Lal v. Barkat Ali, A I R 1942 Lah. 209, in the following terms :‑‑ "In the case of Harkishen Lal v. Barkat Ali, it was laid down by a Division Bench of this Court that where it is open to the plaintiff to frame his suit in one of 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. In other words, if it is open to the plaintiff to bring a suit for posses sion or to bring a suit for a declaration with consequential relief for possession; it is entirely for the plaintiff to choose in which form he brings the suit and to the results that may flow from his choice in the way of limitation or otherwise the question of Court‑fee payable is wholly irrelevant. 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. It cannot he said that in all suits where possession is one of the reliefs claimed, the suit must of necessity fall within section 7 (v) any more than if the relief was not possession but was somewhere specifically provided for, say in Art. I of the Schedule, the relief would necessarily fall within that Article. It will depend on the facts and circumstances of each case whether the relief by way of possession or any other relief claimed is or is not consequential on the declaration sought." In the later Full Bench decision of 1949, viz., Karam Ilahi v. Muhammad Bashir it was laid down that, for the application of section 8, Suits Valuation Act, the correct process is to determine the value for purposes of Court‑fee first, and that value shall also be the value for purposes of jurisdiction. This conclusion has a direct bearing upon certain observations of the Full Bench in Mst. Zeb‑ul‑Nisa's case viz :‑ "In the present case, therefore, the plaintiffs were bound to fix the same value on the relief claimed for purposes of Court‑fee and jurisdiction. Plaintiffs have already fixed the value of the relief in the plaint for purposes of jurisdiction at ten lacs. They had the advantage of having the suit heard by a Court having jurisdiction to try a suit of that value and also of a direct appeal to this Court. The value of the relief was apparently fixed on the basis of the value of the subject‑matter of the alienations in dispute, and no reasonable ground has been suggested for allowing the plaintiffs tc amend the plaint and put a different valuation on the relief at this stage. The only object of the proposed amendment obviously is to evade payment of Court‑fee on the value of the relief as stated in the plaint." The following observations of the later Full Bench furnish a direct answer to the above view :‑ "The only reason that can be discovered from the authorities for the view that where the value for purposes of jurisdiction is stated by the plaintiff in a suit which originally was never intended to be a suit under section 7 (iv) (c) of the Court‑fees Act, the value for purposes of Court‑fee can be ascertained by treating the value for purposes of juris diction as the value for purposes of Court‑fee by reason of section 8 of the Suits Valuation Act is that the plaintiff in such a case must be deemed to have stated his valuation for the purposes of Court‑fee as required by section 7 (iv) (c) or because having obtained a hearing from a particular Court on the basis of the jurisdictional value stated by him in the plaint he is estopped from varying such value and, therefore, by reason of section 8 of the Suits Valuation Act he must adopt the same value for purposes of Court‑fee. Neither of these reasons can stand a moment's scrutiny. So far as the first argument is concerned, it reduces itself to a construction of the plaint and can work only if, as a matter of construction of the plaint, the Court arrives at the result that the plaintiff has in such a case stated the amount at which he values the relief for purposes of section 7 (iv) (c) of the Court‑fees Act. Now if the plaintiff, while drafting the plaint, professes to ask merely for a declaratory decree without any consequential relief and expressly states in the plaint that for the kind of suit he is framing a fixed Court-fee of Rs. 10 is required by the law, it cannot possibly be held that while stating the value for purposes of jurisdiction he is also stating the value for purposes of Court‑fee under section 7 (iv) (c) Ex‑hypothesi the provision which requires the plaintiff to state the value for purposes of Court‑fee is not present to his mind and in fact he does not state any value for any such purpose. If, therefore, the question is purely one of construction of the plaint, it is impossible to hold that in such a case the plaintiff has stated the value of the relief for purposes of Court‑fee, and unless the Court arrives at this result, the value for purposes of jurisdiction itself remains undetermined. Nor does the argument founded on estoppel work in such cases. If the value for purposes of jurisdiction is determined by the value for purposes of Court‑fee, and the latter is not stated, the former cannot be ascertained." In the light of this discussion, we are constrained to conclude‑we do so with the greatest respect‑that the effect of the decision in Mst. Zeb‑ul‑Nisa's case must now be regard ed as being confined to the pecular facts of that case. No question under the Suits Valuation Act arises in this case, and it is only necessary for us to consider whether the various reliefs claimed correctly fall to be taxed as held by the Courts below. In doing so, we shall adopt, with respect, the principles laid down in the case Harkishen Lai v. Barkat Ali. Treating the various reliefs in this light, the conclusions which we arrive at are as follows. The basic declaration that the property is waqf has the effect of giving locus standi to the plaintiffs to call in question any alienations of the pro perty which are contrary either to the law of waqf or to the general law. Such a declaration falls to be taxed under clause (iii) of Article 17 of the Schedule II to the Court‑fees Act. The two declarations sought in respect of the alienations of 66 shares first to Mst. Sakina Begum and then by Mst, Sakina Begum to Mohan Lal, are not sought as consequential reliefs, in relation to the first declaration. They are claimed, and must be claimed, independently of the first declaration, except to the extent that the latter declaration, if granted, furnishes locus standi. From the first declaration, if granted. it will not follow as a matter of course that these alienations will be avoided, but certain facts will require to be established, in order to procure this result. Consequently, the effect of the alienations cannot be avoided unless a declaration of their illegality be first obtained. Prima facie, it would seem sufficient to claim a declaration avoiding these alienations. It is not shown that any further relief can be, or ought to be claimed, in respect of these alien ations. Subsequently to these alienations, the entire block of 198 shares was forfeited by the Society, and if the forfeiture is set aside, the Society can hardly fail to give effect if effect be necessary, to any declaration obtained by the plaintiffs in res pect of these intermediate alienations. Therefore, I consider that the relief by way of declaration in respect of these alienations is competent, and each such declaration falls to be taxed under the same head as the first declaration. Then, as respects the forfeiture, the mode adopted by the plaintiffs for stating their claim is firstly that they seek a declaration, and secondly that they ask for a consequential relief, namely, cancellation of the Society's resolution directing the forfeiture. So far as I can see, the declaration sought is necessary, i.e., as in the case of the alienations in favour of Mst. Sakina Begum and Mohan Lal, the mere fact of the property being waqf is not sufficient to avoid the forfeiture, but it will be necessary also for the plaintiffs to establish that the order of forfeiture is void by reason of failure to comply with the provisions of law applicable to the matter. The con sequential relief also cannot be regarded as merely colourable or superfluous. Unless there be cancellation of the resolution, the mere declaration by the Court may not have the effect desired by the plaintiffs qua the proprietorship of the shares. This last relief would fall for purposes of taxation under section 7 (iv) (c) of the Court‑fees Act. It will be for the plaintiffs to fix such value as they please upon this relief for purposes of taxation, and the same value shall be accepted for purposes of jurisdiction. The Court‑fee payable will be the total of the separate Court‑fees assessed as indicated above. We accordingly allow this appeal and direct that the trial Court shall allow the plaintiffs one reasonable opportunity to take action as indicated above to revalue the various reliefs id the suit and make good the balance of Court‑fee. If due compliance is made, the plaint shall be restored to its original number, and shall be proceeded with in accordance with law. If, on the other hand, compliance is not made, the plaint shall stand rejected. In all the circumstances, we leave the parties to bear their own costs of this appeal. A. H. Appeal allowed.