# Vasu v. Chakki Mani (A.l.R. 1962 Kera/a 84 refe"ed to)

- **Citation:** [1974] 1 S.C.R. 322
- **Court:** Supreme Court of India
- **Decided:** 1973-08-03
- **Bench:** D: G. Palekar, A. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vasu-v-chakki-mani-a-l-r-1962-kera-a-84-refe-ed-to-5976
- **Pages:** 6

## Headnote

llindu Law-Joitu Hindu fa111ily-Wliethcr sons are liable for the dtbts of
1he father incurred l¥ithout consideraJlon and family necessity-Court Fees A.ct
.I'. 7(fr)(7)-/ls &eopr.
·
'rherc was a mortgage of a prope-rty in favour of the appellant for a sun1
.of Rs. 15,000/-. The mortgagee filed a suit and obtained a decree. When he
1ricd to take out execution proceedings for the sale of the mortgaged property,
J·cspondents 1 and 2 filed a suit for a declaration that tho mortgage executed by
their father was null and void as against them. a& the property was a joint
·Hindu family property and the mortgage had been c.ffcctcd without considera·
tion and family necessity. The ·plaintiffs (Respondent 1 and 2) paid a Court
Fee of Rs. 19.50 and th! v~ue of the suit for purposes of jurisdiction was
-given "Ii R,. 16,000 /·.
A preliminary objection was raised by the Appellant that the suit W'!S not
properly valued for purposes of Court Fee and jurisdiction. The Subordinate
Juclge held that although the case is covered by S.7(iv)(c) of the Court Fee
,\ct; the proviso to that Section applied and directed the plaintiffs to pay Court·
Fee on the value of ·RB. 16,000/-. Thereafter, the Court Fee not having been
paid, the plaint was rejected. The plaintiff appealed before the High Court
against that dedsion. ·The High Court held against the defendants taking the
view that the plaintiffs were not at all bound by the mortgage in dispute since
~t 'vas a joint family property. The finit defendant appealed before this Court.
In this Court, preliminary objection were raised that the present appeal is
11ot competent and secondly, the plaintiffs were not bound
by the
mortgage
of the joint Hindu family property where there was no legal necessity to ex~
ecutc the mortgage. Allowing the appea),
HELD (i) In the present case, the plaint was rejected under Order 7, Rule
11 of the C.P.C. Such an order amounts to a decree under S.2(ii) and there
is a right to appeal op~n to the plaintiff. ' Furthermore, in a case in which
ibis C-ourt has granted special leave, the question whether an appeal lies or not,
.Joes not arise. Even otherwise, a second appeal would lie under S.100 of the
C.P.C. on the ground that the decision of the !st appellate Court on the
interpretation of S.7(iv)(c) is a question of law. There is thus no merit in
the preliminary objection. [324E-G]
Vasu v. Chakki Mani (A.l.R. 1962 Kera/a 84 refe"ed to).
Ratl11111varma·
rct/a v. Smt. Vim/a, A.l.R. 1961 S.C. 1299 referred ·to and distinguished.
·
hi) While the Court Fee payable on a plaint is ccrtaloly to be dcddcd on
1he basis of the allegations and the prayer in the plaint and the question
whether the plaintiff's suit will have to fail for failure to ask for consequential
relief is of no concern to the Court at that stage, the Court in deciding the
question of Court Fee, should look into the allegations in the plaint to 1ec
what the substantive relief that is asked for. Mere cleverness in drafting the
plaint will not be allowed to stand in the way of the Court looking at the
'Substance of the relief asked for. In the present case. the relief asked for i~
on the basis that the property in dispute is a joint Hindu family property and
there was no legal necessity to a:ecute the mortgage. It is now well s~ttled
that under Hindu Law, if the manager of a joint family is the father and the
other members are sons, the father may, incur a debt, so long as it is not for
imm')ral purposes and the joint family estate is open to be taken in execution
<>f proceedings upon a decree for the payment of the debt. (324G-325B]
Fakir Chand v. Harnam Kaur 1967 1 S.C.R. 68, referred to.
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SJi.\,\!SllER SINGH v. RAJINDER PRASHAD (Alagiriswami, J.)
(iii 1 In the present case, when the plaintiffs sued for a declaration
th;,it
the decree obtained by the appellant against their father was not binding on
them, they were really asking for setting aside the dci;ree or for the consequent<il
relief

## Text

J22
SHAMSHER
SINGH
'·
RAJINDER PRASHAD & ORS.
August 3, 1973
[D: G. PALEKAR AND A. ALAGIRISWAMI, JJ.]
llindu Law-Joitu Hindu fa111ily-Wliethcr sons are liable for the dtbts of
1he father incurred l¥ithout consideraJlon and family necessity-Court Fees A.ct
.I'. 7(fr)(7)-/ls &eopr.
·
'rherc was a mortgage of a prope-rty in favour of the appellant for a sun1
.of Rs. 15,000/-. The mortgagee filed a suit and obtained a decree. When he
1ricd to take out execution proceedings for the sale of the mortgaged property,
J·cspondents 1 and 2 filed a suit for a declaration that tho mortgage executed by
their father was null and void as against them. a& the property was a joint
·Hindu family property and the mortgage had been c.ffcctcd without considera·
tion and family necessity. The ·plaintiffs (Respondent 1 and 2) paid a Court
Fee of Rs. 19.50 and th! v~ue of the suit for purposes of jurisdiction was
-given "Ii R,. 16,000 /·.
A preliminary objection was raised by the Appellant that the suit W'!S not
properly valued for purposes of Court Fee and jurisdiction. The Subordinate
Juclge held that although the case is covered by S.7(iv)(c) of the Court Fee
,\ct; the proviso to that Section applied and directed the plaintiffs to pay Court·
Fee on the value of ·RB. 16,000/-. Thereafter, the Court Fee not having been
paid, the plaint was rejected. The plaintiff appealed before the High Court
against that dedsion. ·The High Court held against the defendants taking the
view that the plaintiffs were not at all bound by the mortgage in dispute since
~t 'vas a joint family property. The finit defendant appealed before this Court.
In this Court, preliminary objection were raised that the present appeal is
11ot competent and secondly, the plaintiffs were not bound
by the
mortgage
of the joint Hindu family property where there was no legal necessity to ex~
ecutc the mortgage. Allowing the appea),
HELD (i) In the present case, the plaint was rejected under Order 7, Rule
11 of the C.P.C. Such an order amounts to a decree under S.2(ii) and there
is a right to appeal op~n to the plaintiff. ' Furthermore, in a case in which
ibis C-ourt has granted special leave, the question whether an appeal lies or not,
.Joes not arise. Even otherwise, a second appeal would lie under S.100 of the
C.P.C. on the ground that the decision of the !st appellate Court on the
interpretation of S.7(iv)(c) is a question of law. There is thus no merit in
the preliminary objection. [324E-G]
Vasu v. Chakki Mani (A.l.R. 1962 Kera/a 84 refe"ed to).
Ratl11111varma·
rct/a v. Smt. Vim/a, A.l.R. 1961 S.C. 1299 referred ·to and distinguished.
·
hi) While the Court Fee payable on a plaint is ccrtaloly to be dcddcd on
1he basis of the allegations and the prayer in the plaint and the question
whether the plaintiff's suit will have to fail for failure to ask for consequential
relief is of no concern to the Court at that stage, the Court in deciding the
question of Court Fee, should look into the allegations in the plaint to 1ec
what the substantive relief that is asked for. Mere cleverness in drafting the
plaint will not be allowed to stand in the way of the Court looking at the
'Substance of the relief asked for. In the present case. the relief asked for i~
on the basis that the property in dispute is a joint Hindu family property and
there was no legal necessity to a:ecute the mortgage. It is now well s~ttled
that under Hindu Law, if the manager of a joint family is the father and the
other members are sons, the father may, incur a debt, so long as it is not for
imm')ral purposes and the joint family estate is open to be taken in execution
<>f proceedings upon a decree for the payment of the debt. (324G-325B]
Fakir Chand v. Harnam Kaur 1967 1 S.C.R. 68, referred to.
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SJi.\,\!SllER SINGH v. RAJINDER PRASHAD (Alagiriswami, J.)
(iii 1 In the present case, when the plaintiffs sued for a declaration
th;,it
the decree obtained by the appellant against their father was not binding on
them, they were really asking for setting aside the dci;ree or for the consequent<il
relief of injunction restraining the decree holder from executing the decree
against the mortgaged property. [3258-Cj
In deciding whether a suit is purely declaratory, the substance and nl1t
merely the language or the form or relief claimed
should
be
considered.
[325GJ
Ztb-uf·iYisa v. Din kfolianunad, -\.LR. l94t Lahore 97 referred to
(i,-) ln 4 suit by the son for a declarJ.tion that the mortgage decree obtained against his father is not binding upon him. it is essential for the son to
ask for setting aside the decree as a consequence of the declaration clai1ned and
to pay ad i:t./orem Court fee under s. 7(iv)(c). A decree against the father
is a good <lecree against the son and unless the decree is set aside. it will reroai11
executable against the son and it is essential for the son to ask to set aside the
decree.
Further, in a suit by the son for a declaration that a decree against th~
father, does not affect his interest in the family property, conscquental relief
is involved and ad vcloren1 Court fee is necessary, [326F-GJ
Prit/11·i Raj v. D. C. &Iii, A.l.R. 1945 Lahore 13, and
Vinayakrao
».
Mankw1war Bai, A.J.R. 1943 Nagpur 70, referred to
The Judgment of the Court was delivered by
ALAG!RlSWAMI, J.-This appeal raises the question of the court fee
payable in the suit filed by the 1st respondent and his minor brother
the 2nd respondent against their father the 3rd respondent and the
aliencc from him the appellant.
On 13-7-1962 the father executed a mortgage deed in favour of
the appellant of a property of which he claimed to be the sole owner
for a sum of Rs. 15,000/-. The mortgagee, the appellant filed a suit
011 the foot of this mortgage and obtained a decree. When be tried
to take out execution proceedings for the sale of the mortgaged property, respondents 1 'lllld 2 filed a suit for a declaration that the mortg-
·age executed by their father in favour of the appellant is null ~nd void
and ineffectual as against them as the property was a joint Hindu
family proper1iy, and the mortgage had been effected without consideration &nd family necessity. On this plaint the plaintiffs paid a fixed
court fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16.000.
A preliminary objection having been
raised by the appellant that the suit was not properly valued for purposes
'!f ~ourt fees and jurisdiction, the Subordinate Judge tried it as a preli~mary issue. He held that although the case is covered by section
7(1v)(c) of the Court Fees Act, the proviso to that section applied and
directed the plaintiffs to pay court fee on the value of Rs. 16 000 which ·
wa~ tl~e ~~ount at which the plaintiffs valued the suit for the purposes
?f 1unsd1~1ton. .1'.te court fee not h~ving been paid the plalnt was reJCCtcd. 1 he plamttffs thereupon earned the matter up on appeal before
the High Court of Punjab _& Haryana.
Before that Court the plain·
tills did not seriomly contest the position that the consequential relief
of setting aside the decree within the meaning of Section 7(iv)(c) of
the Court Fees Act was inherent in the declaration which was claimed
with regard to the decree.· But taking the view that the plaintiffs were
not at all bound by the mortgage in dispute or the decree, the High
324
SUPREMB COURT REPOUS
[ 197'4 ) 1 S.C.R.
Court held that there wu no consequential relief involved since neither
the decree nor the alirnation binds the plaintiffs in any l:illlllDCC· The
l st defendant in the suit has, therefore, filed this appeal.
Before us a preliminary objection was raised based on the observaliOWJ of this Court in Rathnavaramaraja v. Smt. Vim/a ( 1) that the
present appeal is not competent. In that cue this Court observed that
whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who maiy believe
and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision
apinst. the order adjudging payment of court·fee payable on the plaint.
But the observations must be ·understood in the background of tlte facts
of that case. This Court was there dealing with an application for revision filed before the High Court under s. 115 of the Code of Civil
Procedure and pointed out that the jurisdiction in revision exercised
by the High Court is strictly conditioned by clauses (a) to (c) thereof
and may be invoked on the ground of refusal to exercise jurisdiction
vested in the Subordinate Court or assumption of jurisdiction whch the
court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and
the provisions of ss. 12 and 19 of the Madras Court Fees Act do not
ann the defendant with a weapon of technicality to obstruct the pro·
gress of the suit by approaching the High Court in revision against an
order determining the court fee payable. The ratio of that decision w33
that no revision on a question of court fee lay where no question of
.i'lrisdiction was involved. This decision was corroctly interpreted by
the Kerala High Court in Vasu v. Chakki Mani(') where it was pointed
out that no revision will lie against the decision on the question of
adequacy of court-fee at the instance of the defendant ...... unless the
question of court fee involves also the question of jurisdiction of the
court. In the present case the plaint was rejected under Order 7, Rule
11 of the CP.C. Such an order amounts to a decree under section
2(2) and there is a right of appeal open to the plaintiff. Furthermore,
in a case in which this Court has granted special leave the question whether an appeal lies or not does not arise. Even otherwise a second
appeal would lie under section 100 of the C.P. C. on the ground that
the decision of the 1st Appellate Court on the interpretation of s. 7(iv)
( c) is a question of law. There is thus no merit in the preliminary
objection.
As regards the main question that wises for decision it appears to
us that while tho court·fee payable on a plaint is certainly to he decided
on tho basis of the allegations and the prayer in the plaint and the question whether the plaintiff's suit will have to fail for failure to ask for
consequential relief is of no concern to the court at that stage. the cowt
in deciding the question of court-fee should look into the allegations
in the plaint to sec wlylt is the substantive relief that is asked for. Mero
astuteneliS in drafting the plaint will not be allowed to stand in the
way of the court looking at the substance of the relief asked for. In
this case the relief asked for is on the biiis that the property in dli·
puto is a joint Hindu family property and there was no Ieaal neCCSlity
(I) A. I. R. 1961 S. C. 1299.
(2) A. I. It. 1962 Kerala 84.
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5i!AMSHER. SINGH V. RAJINDER. PRASHAD (A./agiri.1Wami, /.) 325
to execute the mortgage. It is now well settled that under Hindu Law
if the manager of a joint family is the tatker and the other members are
the sons the father may by incurring a debt so long as it is not for an
immoral purpose Jay the joint family estate open to be taken in execvtion proceedings upon a decree for the p~ment of the debt not only
where it is an unsecured debt and a simple money decree for the del>t
but also to a mortgage debt which the tather is personally liablo to
pay ·and to a decree for the recovery of the mongage debt by the sale
of the property even where the mortga&e is not for legal necessity or
for payment of antecedent debt (Faqir Chand v. Hamam Kaur(').
Cons;:quently when the plaintiffs sued for a declaration that the Jecrec
obtained by the appellant against their father was not bindin& on them
they were really asking either for settin& aside the decree or for the
consequential relief of injunction restraming the decree holder from
executing the decree against the mortga~ed property as he was entitled
to do. This aspect is brought out in a decision of the Full Bench of
tho Lahore High Court in Zeb·ul-Nisa v. Din Mohammad(') where it
was held that :
''The mere fact that the relief as stated in the prayer
clause is expressed in a declaratory form does not necessaricy
show that th~ suit is for a mere declaration and no more. If
the relief so disclosed is a declaration pure and simple and
involves no othj:r relief, the suit would fall under Art.17(iii)."
In tliat care the plaintiff had sued for a twofold declaration:
(i) that
the property d~scribed in the plaint was a waqf, and (ii) that certain
alienations thereof by the mutwalli and his brother were null and void
and were ineffectual against the waqf property. It was held that the
second :>art of the declaration was tantamount to the setting aside or
cancellation of the alienations and therefore the relief claimed could
not be treated as a purely declaratory one and inasmuch as it could
not be said to follow directly from the declaration sought for in the
first part of the reiief, the relief claimed in the case could be treated as
a declaration with a "consequential relief." .... It was substantive one
in the shape of setting aside of alienations requiring ad valorem court·
fee on the value of the subject matter of the sale, and even if the relief
sought forfell w!thin the purview of s. 7(iv)(c) of the plaintiffs in view
of ss. 8 and 9, Suits Valuation Act, having already fixed the value of
the ref1ef in the plaint for purposes of jurisdiction were hound to Ji~
ihe same value for purposes of court-fee. It was also pointed out that
in deciding whether a suit is a purely declaratory, the substance and not
merely the language or the form of the relief claimed should be con·
sidered. The court also observed :
"It seelllll to me that neither the answer to the question
whether the plaintiff is or is not a party to the decr~ilr the
deed sought to be declared as null and void, nor to the question whether the declaration sought does or docs not fall within
the purview of s. 42, Specific Reli~f. Act. furnishes a satisfac·
tory or conclusive test for detenmnmg the court fee payable
--Cl) [1967) (I) S.C.R. 68.
{2) A. I. R. [1941] Labcre 97.
326
SUPREMI!• COURT REPO!lTS
( 1974 ]' 1 S.C.ll.
in the suit of this description. When the plaintiff is a party
to the decree or deed, the dcclaratony relief, ifgranted, necessarily relieves the plaintiff of his obligations under the deLTCe or the deed and, h~nce it seems to have tieen 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 docs 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 dec!ara·
tion must I think be held to include consequential relief in the
same maiy as in those cases in which the plantiff is himself
a party to the alienation or the decree, which is sought to be
declared null and void. The case dealt with in AIR 1936
Lah 166 seems to have been of this description. 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."
The decision of the Lahore High C.Ourt in Prithvi Raj v. D. c. Ra/Ii(')
is exactly in point. It was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not
binding upon him it is essential for the son to ask for setting aside of
the decree as a consequence of the declaration claimed and to pay
ad mlorem court fee under s. 7(iv)(c). It was pointed out that a
decree against the father is a good decree against the son and unless
the decree is set aside it would remain executabfe against the son, and
it was essential for the son to ask for setting aside the decree.
In
Vinayakrao v. Mankunwarbai( 2 ) it was held that in a suit by tl1e son
for a declaration that ~decree against the father docs not affect his interests in the family property, consequential relief is involved and ad
valorem court fee would he necessary.
We should now refer to certain decisions relied upon by the respondents. We do not consider that the decision of the learned Single
Judge of the Madras High Court in Venkata Ramani v. Maravanaswami( 3 ) lays down the correct law. It proceeds on the basis that
(I I A.1.R. 1945 .Lnhorc 13.
(21 A.J.R. 1943 Nngrur 70.'
(.1) A.LR. 1925 rvt<1dras 713.
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SHAMSHER SINGH v. RAJINDER PRASHAD (Alagiriswami, !.) 327
the plaintiffs not being parties to the document they were not bound to
get rid of it by having it actually cancelled, but it ig1iores me effect of
Hindu Law in respect of a mortgage decree obtained against the father.
As pointed out by the Lahore High Court in such cases in suing for
declaration that the decree is not binding on him the son is really asking
for a cancellation of the decree.
This aspect does not seem to have
been taken into consideration by the learned Single Judge. The decision of a learned Single Judge of the Nagpur Hign Court in Pandurang Mangat v. Bhojalu Usanna( 1) suffers from
the same error.
Though it refers to the decision of the Full Bench of the Lahore High
Court as well as the same High Court's decision in Prithvi Raj v. D.
C. Ralli(') it does not seek to distinguish them for holding otherwise.
The learned Judge gi".es no reason whether and if so why he dissents
from the view taken in the latter case. ,This decision also suffers from
the learned Judge's misapprehension that there is a difference between
a simple moneiy decree and a mortgage decree obtained against a Hindu
father when it is questioned by the son and its view that in execution
of a simple
money decree the entire joint family property,
inclusive of the interest of the sons, is liable to be sold in execution of
the decree, but that in the case of a mortgage decree it is not necessary
for a son to allege or prove that the debt was incurred for an illegal or
an immoral purpose and he can succeed if it is proved that the mortgage
was not for legal necessity or for the payment of antecedent debt. We
have already referred to the decision of the Court on this point. We
must also hold in view of the reasons already set forth that the decision of the Allahabad High Court in Jshwar Dayal v. Amba Prasad(')
is not a good law.
As regards the. decision of the Full Bench of the
Allahabad High Court in Bishan Sarup v. Musa Mal(') there is noth·
ing to show whether the alienation was made by the manager of a
joint Hindu family and therefore the decision is rtot in point.
.
We, therefore, hold that the decision of the High Court was not
correct and allow this appeal with costs. The plaintiffs would be given
a month's time for paying the necessar;y court fee.
(1) A.l.R. 1949 Nagpur 37.
(2) A.I.R. 1945 Lahore 13.
(3) A.I. R. 1935 Allahabad 667.
(4) A.l.R. 1935 Allahabad. 817.
Appeal allowed.