LexSHAMSHER SINGH versus RAJINDER PRASHAD & ORS.
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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. A B c D E F G H A B c D F G H 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 L
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