This is an office reference objecting to the amount of court---fees paid on the memorandum of appeal by the appellants.
2. The relevant facts, for the purpose of this reference, are that respondent Mst. Aisha is widow of Haji Mohammad Ayub, who died on 27-4-67 leaving behind considerable. Property, consisting of 600 acres of agricultural land, 5 houses, one building plot and Rs. 1,40,000 in cash. As he had no issue or ether near relation, except the respondent, he is said to have made a will on 2-11-63, by which he bequeathed his entire property to the respondent. As the appellants claimed that the will peas forged and they being the distant kindred of Haji Mohammad Ayub were entitled to inherit 3/4th stare of his estate and the respondent was entitled only to 1/4th share of the property of the deceased, the respondent on 1-6-64 filed a suit against the appellants in the Court of the Civil Judge, Hyderabad, praying for a declaration that she is the full owner of the entire; estate of her deceased husband which was in her possession std also for an injunction to restrain the appellants from distributing her possession. The suit was decreed in favour of the respondent and an appeal to the District Court against the said decree was unsuccessful. The appellants have now filed a memorandum of appeal to this Court against the judgments and decrees of the two Courts below.
3. In the opening sheet filed with the memorandum of appeal, the value for the purposes of jurisdiction as well as for the purpose of the court-fees has been shown as Rs. 15,500, while the court-fees paid on the memorandum of appeal is Rs.
45. On the office objection as to hour the appeal is valued, the learned Advocate for the appellants submitted a written explanation contending-
(a) that in the original suit the respondent had paid court---fees of Rs. 15 for declaration and Rs. 15 for injunction and the court-fee once fixed for the suit holds good for filing the appeals ;
(b) that in case the appeal of the appellants is allowed, they will only get a declaratory decree, which is not executable, but only the suit of the respondent will be dismissed, resulting in the parties being in the same position as they were before the filing of the suit ; and
(c) that under section 12 of the Court Fees Act, the appellate Court can determine the court-fees only when a wrong decision is taken in the lower Court, but since the lower Court gave no finding or decision on this issue, the question can be agitated only if the appeal is admitted and notice given to the other side.
4. The office referred the matter to the Taxing Master who considered that as a question of valuation was involved, which could only be decided by a Court, and as under section 5 of the Court Fees Act he was neither a Court nor an officer to whom the Court had delegated any of its powers, the matter be placed before the Court for necessary orders. An additional ground advanced by him for referring tae matter to the Court was that the questions involved were of general importance and it was desirable to have authentic decision of the Court.
5. I have heard Mr. A. K. Niazi for the appellants and Mr. G. M. Qureshi, who appeared for the respondent. The first contention of Mr. Niazi is that as the original suit was only for declaration that the respondent was the full owner of the property and not for possession, the court-fee on the suit was governed by Article 17 (iii) of the Second Schedule to the Court Fees Act, which prescribes a fixed fee of Rs.
15. This contention is repelled on the short ground that the suit filed by the respondent was not only for a declaration but also for injunction. It was therefore clearly a suit for a declaration with consequential relief, as held by a Full Bench of the Sind Chief Court in Lakhomal Deepchand and another v. Deepchand Tolaram and others (AIR 1937 Sind 241) and, therefore, fell under section 7 (iv) and not Article 17 (iii) of the Second Schedule. A similar view was taken by a Division Bench at Karachi of the erstwhile High Court of West Pakistan in Mohammad Siddique and others v. Haji Ahmed & Company (PLD 1957 Kar. 468), and by the Calcutta High Court in the case reported in AIR 1954 Cal. 34.
6. In cases falling under section 7(iv)(c) of the Court Fees Act the amount of court-fee payable is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The said section, however, as observed by Vivian Bose, J. In Shiekh Rehman v. Bal--chand and another (AIR 1937 Nag. 6), does not stand by itself but has to be read with section 6, which is the charging section, and which Prescribes, with certain exceptions, that the fees prescribed undo the relevant Articles of the First or the Second Schedule, as the case may be, are required to be paid on plaints, memoranda of appeals, etc. The relevant Article to the instant case, in my opinion, is Article 1 of the First Schedule, which provides to payment of ad valoram fees in accordance with the amount of value of the `subject-matter' in dispute. Although two Full Benches of the Lahore High Court in Mian Karam Ilahi v. Mohammad Bashir and others (PLD 1949 Lah. 8) and Ghulam Qadir v.
M/s. Balakimal & Sons (PLD 1949 Lah. 461), have held that in cases coming within the purview of section 7(iv)(c) of the Court Fees Act, the plaintiff has an absolute discretion to decide and fix the value of the suit for the purposes of court-fee and jurisdiction, this view was dissented from by the Karachi Division Bench in Mohammad Siddique v. Haji Ahmed & Company, which adopted the view of the Full Bench of the Sind Chief Court in Lakhomal Deepchand and another v. Deepchand Tolaram and others and of the Patna High Court in Thakurjee v. R. R. S. Rat (I L R 27 Pat. 494), that a suit for declaration and injunction, being a suit for consequential relief, it was not open to the plaintiff to put an arbitrary value upon the injunction sought and pay court-fee accordingly.
Waheeduddin, J., who delivered the judgment on behalf of the Division Bench, observed as follows:- "It seems to us that ordinarily in suits falling under section 7(iv) (c) a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court-fee on the valuation. We are in respectful agreement with the view of Davis, J. C. That absence of the 6 rules tender section 9 of the Suits Valuation Act is no bar to the exercise of the power under Order VII, rule 11, C. P. C. And that the question as to what is proper valuation depend upon the circumstances of each suit and the judicial decision of the Court. To hold otherwise would mean to give unlimited power to litigants In drafting their prayers so as to include or exclude relief with a view to confer jurisdiction on the Court to try the suit."
7. The learned counsel for the appellants has next contended that as the respondent, according to the averment made by her fn the plaint, was in possession of the property hence no ad valoram court-fee was payable and for this he has placed reliance on a decision of a Division Bench of the Dacca High Court in Tarachand Mondal and others v. Bazari Sheikh and others (PLD 1967 Dacca 203). That was a case of a plaintiff in possession of property filing a declaratory suit that the Kabala executed by his Benamidar was not binding upon him and praying further that the defendants be restrained from interfering with his possession. The plaintiff had paid fined court-fee as well as court-fee for the consequential relief prayed for in the shape of permanent injunc--petition. It was held that the plaint had been properly stamped and the contention that the suit was not maintainable in the absence of payment of ad valorem court-fee was without substance. It appears that the decision in that case was based on the fact that as the plaintiff was not the executant of the Kabala it was not necessary for him to pray for tile cancellation of the deed. It ray be pointed out that In the above reported case, not only the various rulings on the point of the Sind Chief Court and the Karachi Bench of the erstwhile High Court of West Pakistan were not considered and referred to, but in Manohar Khan v. Mst. Momin Jan Bibi and another (PLD 1967 Dacca 164), another Division Bench of the Dacca High Court, of which one Judge was a party to the decision in Tarachnnd Mondal v. Hazari Shaikh, held that In a suit praying for a declaration of the plaintiff as the full owner of the suit property and a declaration that the defendant has not right, title or interest in the suit property, the second prayer was a consequential prayer to the first prayer and ad valorem court-fee was payable.
8. The next contention of the learned counsel for the appellants that the provisions of section 12(11) of the Court Fees Act are attracted and an appellate Court can determine the court-fees payable only in those cases where a wrong decision is taken by the lower Court and not where no decision is taken one way or the other, as in the instant case, also appears to me to be without any substance. It appears from the judgment of the learned Civil Judge that a specific issue was framed as to the sufficiency or otherwise of the court-fees paid on the plaint, but as this issue was not pressed by the defendants, no decision was given thereon. There is a plethora of rulings to the effect that an appellate Court can interfere where deficient court-fees has been paid and that for the exercise of that power it is not necessary that there should have been a formal decision by the Court below. In re: Lakhmiamal (AIR 1926 Mad. 96), it was held that when a Court receives a plaint, petition or any other pleadings and files it as properly stamped, its act amounts to a decision that proper court-fees have been paid and if the appellate Court finds that the court-fee paid is deficient, it can demand proper court-fees in the lower Court as well as in the appellate Court. In Bidhu Busan Bakhshi v. Kalachand R.I (AIR 1926 Cal. 775), it was held that it was not necessary for application of section 12(ii) of the Court Fees Act that there should have been a formal decision on the question of sufficiency of court-fees in the Court below. In Jani and others v. Bishan Singh and others (AIR 1935 Lah. 699), a Division Bench of the Lahore High Court, following the Full Bench decision reported in 109 P R 1912 held that an appellate Court can call upon a party to make good the deficiency in court-fees under section 12(ii) of the Court Fees Act though no dispute as to the amount bad arisen or been specifically decided in the lower Court. In a very recent case decided by this Court, which is reported in 1972 S & B L R 478, it has been held that the approach that every decision of the trial Court touching the subject of the court-fee is not open to question in appeal appears to be misconceived and the finality declared by sec--petition 12(1) of the Court Fees Act is not absolute. The rule laid down to Baboo Narain Parshad and others v. Choudhry Karreshwar Parshad Singh (43 I C 489), is that it is the duty of the High Court to see that the court-fees are paid in the High Court and the Courts below from which the case has come.
9. I am also not impressed with the contention of the learned counsel for the appellants that in all cases the court-fee paid on the memorandum of appeal should be the same as the court-fee paid on the plaint in the suit. No doubt, if the 'subject---matter' both in the original suit and in the appeal is the same, the court-fee on the memorandum of appeal would be the same as on the plaint, but if the reliefs claimed in the suit and appeal are different or the 'subject-matter' in the suit and appeal differ, and the court-fee has to be paid on ad valorem basis, the court-fee payable on the memorandum of appeal would be different from the one paid on the plaint, and would have to be determined in accordance with the 'subject matter' and the relief claimed by the appellant.
10. In the instant case the relief claimed by the appellants is to get rid of the decrees of the two Courts below rejecting their claim to three-fourths of the estate of deceased Haji Muhammad Ayub, declaring the respondent to be the owner of the said estate and restraining them from interfering with her possession. This, however, does not mean that the 'subject---matter' in the appeal is either the full estate of the deceased or even the 3/4th share thereof claimed by the appellants, for even if the appellants were to succeed in the appeal, they would not be entitled to any part of the property of the deceased and would have to file a suit for possession and enforcement of their right. As pointed oat by Vivian Bose, J. In Shaikh Rahman v. Balchand and another, the value of the amount of the `subject-matter' is not always the value of the property. In Rahmat A.I v. Banaras Silk Industry (PLD 1967 Dacca 113), a Full Bench of the Dacca High Court examined at some length the connotation of the expression 'according to the subject-matter' and pointed out that the value of the 'subject-matter' for The purposes of the Court Fees Act, 1870, did not mean the value of the property but the expression meant "a right sought to be established, a wrong to be remedied and defence asserted in justification of the wrong".
11. The question thus which falls for determination in the instant case is what is the 'subject-matter' of the present appeal and how is its value to be determined. The 'subject-matter' of the relief claimed is obviously not the property itself or even 3/4th share thereof, for that property is admittedly in the possession of the respondent and the appellants have not asked for that property or sought possession thereof. The appeal is only to contest the decree awarded to the respondent which was mainly a declaratory decree together with an injunction. If, therefore, the appellants succeed in the appeal they will not be entitled to the property or possession thereof; but as pointed out by the learned counsel for the appellants both the parties will be in the same position in which they were before the decree was awarded to the respondent. The question to be considered, therefore, is whether under these circumstances the appellants are entitled to value the relief arbitrarily. I am inclined to this view, since it is not possible to determine at this stage at least the valuation of the relief claimed by the appellants, which clearly is not the property itself. It may, however, be pointed out that the appellants have themselves valued the relief claimed by them, both for the purposes of jurisdiction as well as court-fee at Rs. 15,500. This may, therefore, be considered to be the value to them of the relief which they have claimed. In S. T. Rao Chandarkar v.
V. S. Subhedar and others (AIR 1937 Nag. 316), Pollock, J. Held that in a suit for declaration with consequential relief, the plaintiff's own valuation upon the consequential relief determines the valuation both for the purposes of court-fee and also for jurisdiction. In Muhammad Aslam Khan v.
Muhammad Hassan and others (PLD 1959 Pesh. 109), a Division Bench of the erstwhile High Court of West Pakistan observed as follows:- "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 jurisdic--petition 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."
12. I am, therefore of the opinion that the appellants are required to pay court-fee according to the value of the relief claimed by them, namely on Rs. 15,500.