J.N Kaushal, J.:— Muni Lal Brahmin of Kaithal by a registered deed dated 13th July, 1962 mortgaged without possession a factory styled as the Kaithal Expeller Workshop and foundry Kaithal for Rs. 15,000/- in favour of Shamsher Singh defendant No. 1. In the document it was recited that the mortgagor Muni Lal was the sole owner and possessor of the factory Rs. 15,000/- the consideration of the mortgage, consisted of a partnership debt due to the mortgagee from the mortgagor. The mortgage amount not having been paid, a suit was brought by the mortgagee for the recovery of the mortgage amount and interest. On the basis of a compromise a preliminary decree for Rs. 16,000/- with interest at the rate of Rs. 6/- per cent per annum till realisation was passed. On 9th October, 1964 the decree was made final. The mortgagee took out execution proceedings for the sale of the aforesaid property. When notice was issued under Order 21, rule 66 of the Code of Civil Procedure, the present suit was filed by Rajinder Parshad and Sarwan Kumar sons of Muni Lal, the mortgagor. Out of them Sarwan Kumar is a minor and has filed the suit through his mother Smt. Laxmi Devi.
2. The allegations in the plaint are that the plaintiffs and their father Muni Lal defendant No. 2 are co-parcenars and own and possess joint Hindu family property known as the Kaithal Expeller Workshop and foundry Kaithal. The mortgage deed executed by defendant No. 2 was without consideration and family necessity and hence null and void and ineffectual against the plaintiffs. It was further stated that the plaintiffs were not liable to be dispossessed from the property in dispute in execution of the decree which was obtained by defendant No. 1 against defendent No. 2. The allegations of immorality were also levelled against defendant No. 2 and it was stated that if any amount was proved to have been paid to him, it was incurred for immoral and illegal purposes and not binding on the suit property. A prayer was consequently made for a decree for declaration to the effect that the mortgage deed dated 13th July, 1962 executed by defendant No. 2 in favour of defendant No. 1 was null and void and ineffectual as against the plaintiffs, as the property in dispute was a joint Hindu family property and the mortgage had been effected without consideration and family necessity, the plaintiffs were not liable to be dispossessed from the property in question in execution of the decree of defendant No. 1 against defendant No. 2. On an objection being taken the trial Court framed the following issue:—
Whether the suit is properly valued for the pusposes of court fees and jurisdiction?
3. The court fee of Rs. 19.59 was paid on the plaint and the jurisdictional value was fixed by the plaintiffs at Rs. 16,000/-, the decretal amount. At the time of arguments the counsel for the plaintiffs, however, conceded that in fact two declarations were claimed in the plaint and he agreed to pay an additional court fee of Rs. 1950. On behalf of the defendants, however, a further objection was raised that the decree which was obtained by defendant No. 1 against defendant No. 2 was binding on the plaintiffs they being parties to that decree constructively and consequently it was necessary for them to have the decree set aside before obtaining the declaration prayed for. Reliance was placed on a Full Bench decision of the Lahore High Court in Zeb-Ul-Nisa v. Din Mohammad . A.I.R 1941 Lah. 97, Faced with this decision it was not seriously constested on behalf of the plaintiffs that 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. It was however, argued that the plaintiffs were free to place their own valuation inasmuch as the second proviso added to section 7(iv)(c) of the Court-fees Act by Punjab amendment did not apply to the case. The learned trial court relying on a Full Bench authority of this Court in Prabhu v. Girdhari . 1965 67 P.L.R 339., found that although the case was covered by section 7(iv)(c) but the proviso being applicable and the amount of the decree being Rs. 16,000/- with interest, the same should be the valution for purposes of the court-fee. He directed the plaintiffs to make up the deficiency. Since the deficiency was not made up by the plaintiffs the plaint was rejected on 21st December, 1985. This is an appeal by the plaintiffs against that order.
4. The learned counsel for the plaintiffs-appellants has contended that the suit as framed was purely a declaratory suit and no consequential relief was prayed. According to the learned counsel the decree in execution of which the property in dispute was sought to be sold was not binding on the plaintiffs and consequently they were not required in law to set aside that decree. On the other side it is vehemently contended that the mortgage, which was created by defendant No. 2, was binding on the plaintiffs inasmuch as it was an alienation by the Manager of the joint Hindu family consisting of Muni Lal defendant No. 2 and his sons, the plaintiffs. The property being joint Hindu family property, the Manager had the power to alienate that property under certain circumstances. The alienation, according to the counsel, as well as the decree which was passed on the basis of that alienation were not void so far as the plaintiffs were concerned although those were voidable and unless set aside were binding on the plaintiffs. It was, therefore, argued that the second declaration regarding the non-executeability of the decree could not be granted unless the decree was set aside and this constituted a consequential relief within the meaning of section 7(iv)(c) of the Court fees Act.
5. A number of decided cases mostly by the Lahore High Court were cited by the learned counsel on both sides. It was pointed out that there was a conflict of Judicial opinion. After examining carefully the entire case law cited at the Bar we are of the opinion that on the facts of the present case the plaint is properly stamped. As observed in the earlier part of the judgment the alienation in the present case was not made by Muni Lal as the Karta of the family. On the other hand, he executed the mortgage deed by saying that he was the sole owner of the factory in dispute, similarly, the decree which was passed against him was not passed as a Manager of the joint Hindu family but only against him in his individual capacity. It can, therefore, be truly said that there is no alienation which is made by Muni Lal as the Manager of the joint family consisting of himself and his sons. There is no decree either which is passed against Muni Lal as the Manager of the joint Hindu family. As a matter of fact neither the mortgage deed nor the decree makes any mention that there is any joint Hindu family or that Muni Lal was the Manager of such a family. That being the position, there can be no doubt that the plaintiffs are not at all bound by the mortgage in dispute or the decree. Unless a decree is passed against the Manager of a joint Hindu family as a Manager, the other members of the family are not bound by such a decree. When it is said that any alienation by the Manager of the joint Hindu family is binding on the other members of the family unless it is avoided by them it presuppose that they are represented by the Manager. Same is the case with the decree. In other words it can be said that when the Manager acts, he acts on behalf of the entire family and when a decree is passed against him in that capacity, then the other members of the family are a party to that decree in the person of the Manager.
6. The cited cases may now be examined, in Sukh Dial v. Durga Das . A.I.R 1929 Lah. 446., it was held by Advisor, J.—
“A suit for a declaration that a mortgage-decree to which the plaintiff was not a party is not binding on the plaintiff is merely a declaratory suit without consequential relief; the value for purposes of jurisdiction is the value of the property mortgaged.”
7. In this case the mortgage-decree had been obtained against the father of the plaintiffs and the suit was brought when the decree-holder applied for the sale of the mortgaged-house. Arunachalam v. Rangaswamy Pillai . I.L.R 38 Mad. 922. was relied upon for distinguishing the case of Hakim Rai v. Ishar Dass Gorakh . A.I.R 1927 Lah. 499., and it was remarked that in the Lahore case the judgment-debtors were trying to avoid a decree passed against them. In Rattan Lal v. Allahabad Bank, Limited, Lahore . I.L.R 16 Lah. 752, (a Division Bench case decided by Tek Chand and Abdul Rashid, JJ.) Sukh Dial's case, was followed and it was observed—
“That a suit by the son of Hindu governed by the Mitakshara, for a declaration that a mortgage of joint family property by the father had not been effected for legal necessity or for the benefit of the family and that the property was not liable to sale in execution of the decree obtained on foot of the mortgage against the father (the son not having been made a party to the mortgage suit) is governed by Article 17(iii) Schedule II of the Court Fees Act, and a court-fee of Rs. 10/- is sufficient, and that section 7(iv)(c) of the Act is not applicable to such a suit.”
Shri Kishan Das v. Sat Narain . A.I.R 1932 Lah. 132, is a case which has taken the opposite view and it was held—
“Where a minor in a joint Hindu family on attaining majority attacks a mortgage executed by his father during his minority on ground of fraud, etc., and asks for a declaration that the decree for those reasons is not binding on him, the setting aside of the decree being a natural result amounts to consequential relief and the suit falls within the ambit of section 7(iv)(c).”
8. The facts in this case, however, were as follows: Lachmi Narain had three sons: Balkishan Das, Ramkishan Das and Sri Kishan Das, the last of whom was a minor. Balkishan Das had two sons: Jai Kishan and Radha Kishan. Lachmi Narain, for himself and as the guardian of his minor son, Sri Kishan Das, joined Balkishandas and Ramkishan Das in executing two mortgages of certain property in favour of Sat Narain. Sat Narain later instituted a suit for possession of the said property in the terms of the mortgage-deeds. In this suit Shri Kishan Das minor was represented by his mother. The suit resulted in a decree. Shri Kishan Das after becoming major instituted a suit for a declaration to the effect that he was not bound by the mortgages as well as by the decree.
9. The above facts would, therefore, clearly show that mortgages in disputes were executed by the father for himself and as the guardian of his minor son as well as by his other sons Balkishan Das and Ram Kishan Das. These mortgages therefore were executed on behalf of the whole family and the plaintiff was trying to get out of the decree and the alienation to which he was a party.
10. Sohindar Singh v. Shankar Dass . A.I.R 1936 Lab. 166., is another authority which says that a suit by a son for a declaration that certain mortgage-decree and sale in execution thereof are invalid and as such not binding on his interest involves a consequential relief and is governed by section 7(iv)(c), and the fact that the minor has not been personally impleaded in the suit on the mortgage does not make any difference.
11. In this case the facts were that certain property had been mortgaged by the grandfather of the plaintiff. The mortgagees brought a suit on the mortgage impleading the sons of the mortgagor as his legal representatives. The suit was decreed and the property was sold in execution. The plaintiff, who was minor, sought a declaration that the decree and sale were invlaid. The learned Judges observed that when the suit was brought on the mortgage executed by the grandfather, the father of the plaintiff was a party and he could and should have raised the plea, that the mortgage was not binding on the family property. The plaintiff was a minor at that time and his father was entitled to represent him. It will, therefore, be clear that the basis of the decision was that in the decree the minor was deemed to be represented by the father.
12. The matter came before a Full Bench in Zeb-Ul-Nisa v. Din Mohamad. The Full Bench was concerned with an alienation by a Mutwalli of Waqf property and it was observed that if the Mutwalli makes an alienation it was binding on all concerned, until and unless it was 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. While examining the contention that unless the plaintiff was a party to the deed or decree it was not necessary for him to seek a declaration that the decree did not bind him and he could ignore it, it being void, there Lordships made the following observations which are strongly relief upon by the learned counsel for the respondents in the present case:—
“It seems to me that neither the answer to the question whether the plaintiff is or is 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 dues not fall within the purview of S. 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 mast, 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 Sohinder Singh v. Sankar Das seems to have been of this description.”
13. According to the above-mentioned observations although generally speaking where the plaintiff is not a party to the decree or the deed, the declaratory relief does not include any consequential relief, but in exceptional cases decrees are binding even though the plaintiff is not a party and one such instance given by their Lordships was of the sale or mortgage of joint family property effected by a Manager of the joint Hindu family. The alienation is binding on the other members of the family even though they were not parties until and unless set aside. Similar observations were made regarding the decree passed against a Manager. These observations obviously mean that the alienation to be binding on other numbers of the joint family must be made by the Manager in his capacity as Manager. Unless the alienation is by the Manager in his representative capacity, it would be a misnomer to say that the alienation is by the Manager. Similarly, unless the decree is passed against the Manager in a representative capacity, it will not be considered to be a decree against the Manager.
14. In Harikishan Lal v. Barkat Mal Ali . A.I.R 1942 Lah. 209, similar observations are repeated and it is said that inasmuch as an alienation by the father of a Hindu joint family is not void but is only voidable at the instance of his sons, it is, therefore, necessary for the plaintiff to get rid of the voidable document by having the Court declare that in the circumstances of the case it should be avoided at the plaintiff's request. It is not clear from the body of tin judgment as to whether tin alienation was made by the father in his capacity of a father and it will have to be assumed that this was so. The entire discussion proceeds on that basis. The proposition is unexceptionable, if it is found that the alienation is in the capacity of a father of tin joint family. The position will however be totally different if the father alienates the property in his individual capacity and in assertion of his full ownership rights in the property.
15. In Harwant Singh v. Jagan Nath . A.I.R 1943 Lah. 348. the conflict between Rattan Lal's case and Sohinder Singh's case has been noted but it was observed that those cases had no bearing on the case before the Bench. It was observed:—
“They were cases in which junior members of a joint Hindu family sought declarations that decrees passed against the manager of the family were not binding on them. There is a conflict of opinion as to whether in such cases the plaintiff is to be taken to have been represented by the manager of the family in the suit which resulted in the decree”.
16. The case before their Lordships was of an utter stranger and consequently it was held that the plaintiff was not entitled to have the sale cancelled and the relief for cancellation of sale did not follow from the declaration asked for and must be regarded as a surplusage.
17. The last case decided by the Lahore High Court, cited is Prithvi Raj v. D.C Ralli . A.I.R 1945 Lah. 30. This case also proceeded on the proposition of Hindu Law that a decree against the father is a good decree against the son though the son has been given a special remedy for setting aside the decree on the ground of a few special defences that are open to him. Sohinder Singh v. Shanker Das Zeb-Ul-Nisa v. Din Mohammad were followed. There can be no doubt that this case also proceeds on the assumption that the alienation was made on behalf of the joint family. The facts reveal that the decree on the basis of a mortgage which was being challenged by the son had been passed against the father and the grandfather of the plaintiff.
18. No other case decided by the Lahore High Court or by this Court was brought to our notice.
19. The learned Single Judge of the Nagpur High Court (Sen, J.) in Pandurang Mangal v. Bhojalu Usanha . A.I.R 1949 Nag. 37., has expressly dissented from the view taken in Prithvi Raj's case. He observed that a suit by the sons of a mortgagor who were neither parties to the mortgage no to the mortgage decree, for a mere declaration that the auction sale held in execution of the mortgage decree was inoperative against them, without seeking to set aside the mortgage decree or the sale held in pursuance thereof is maintainable. Such a suit, according to the learned Judge, is a suit for a pure declaration in which no consequential relief is involved and ad valorem Court-fee is not payable under section 7(iv)(c) under Article 17(iii), Sch. 2 of the Act. He went on to observe that in such a case it is not necessary for the plaintiffs to set aside the decree.
20. Full Bench decision of the Allahabad High Court in Thakur Din v. Sita Ram . A.I.R 1939 All. 399., cited by the learned counsel for the respondents does not help him. No question of court-fee was involved in this case. The observations therein, however, go to support the contention of the plaintiffs appellants. The observations read—
“The Karta or a head of a joint Hindu family represents the interests of all the members of the family in a litigation in which an interest of the family is involved and no representation order is necessary to make absent members of the joint family liable under the decree passed against the head of the family.”
21. On the question whether a mortgage executed by the manager of a joint Hindu family not as a manager is void or voidable against the other members, their Lordships of the privy council in Balwant Singh v. K. Clanoy . I.L.R 34 All 296. have observed:—
“Having found as a fact that Maharaj Singh was a minor on the date of the mortgage, it is not necessary for their Lordships to consider any other issue. This suit has been brought on the mortgage deed of 28th of October, 1892, by the asignee of that mortgage, and as their Lordships have held that the mortgage was not made by Sheoraj Singh, as the manager of the family or in any respect as representing Maharaj Singh, and as Maharaj Singh was then a minor the mortgage deed as against him and his interest in the estate was not merely voidable, it was void and of no effect and must be regarded as a mortgage deed to which he was not even an assenting party, and as a mortgage deed which did not affect him or his interest in the estate”.
22. This decision is an authority for the proposition that an alienation to be binding on the other members of the family must be by the manager as a manager; unless that is so, the alienation is not voidable but void. Mela Mal and Shib Dayal v. Gori . I.L.R 3 Lah. 288, is in line with the above mentioned view. It was held—
“Where a creditor sues for a debt due from a joint Hindu family and does not join all the members of the family as defendants and obtains a decree against one of the members of the family alone, it cannot be executed against the whole coparcenary property unless the person sued happens to be the manager of the family and the decree is obtained against him in his capacity as manager representing the family”.
23. While considering the date of an alienation by the guardian of a minor for the purposes of Article 44 of the Indian Limitation Act, 1908, Venkatarama Ayar, J. (as he then was) in Rangaswami v. Marappa . A.I.R 1953 Mad. 230., made highly pertinent observations:—
“It cannot be doubted that if a person is not a party to a deed there is no need on his part to have it set aside and when the property of a minor is transferred under a deed executed by his guardian, he is under no obligation to have it set aside unless he is a party to it. The question, therefore, to be decided is whether on a fair construction of the deed of transfer, the minor can be held to be party to it and whether the transfer thereunder is made on his behalf. If the answer is in the affirmative, he is bound to have it set aside within the time prescribed by Article 44; if in the negative, he is entitled to ignore the transaction and a suit by him to establish his rights will not be governed by Article 44.”
24. On facts it was found by his Lordship that since the deed was not executed as a guardian, it was wholly void against the minor and it was not necessary for the minor to have it set aside and he could simply ignore it.
25. There can thus be no doubt that the correct view of law would be that in the present plaint there is no consequential relief involved inasmuch as neither the decree nor the alienation binds the plaintiffs in any manner. The suit bears a proper court-fee stamp.
26. The other contention raised at the Bar need not detain us since it does not arise. The contention was that if suit was held to be governed by section 7(iv)(c) of the Court fees Act whether the trial Court was justified in asking the plaintiffs to pay the court-fee at Rs. 16,000/- and interest. If we are called upon to decide that contention our decision would be that the Full Bench case (Prabhu's case) is applicable and the trial Court came to a correct conclusion. For the reasons stated above, this appeal is accepted, order of the rejection of the plaint is set aside and the trial Court is directed to proceed to decide the case on merits. In the circumstances the parties will be left to bear their own costs.
27. Harbans Singh, J.:— I agree.
28. Appeal allowed.