Jwala Prasad, J.

1. This is a reference to me as a Taxing Judge to determine the Court-fee payable upon the memorandum of appeal.

2. The Plaintiffs are the Appellants. The Defendant No. 1 had executed a mortgage bond in their favour on the 27th February 1914 hypothecating the properties of the joint family consisting of Defendants Nos. 1 to 6. Defendants Nos. 1 and 2 are brothers; Defendants Nos. 3 to 6 are sons of Defendant No. 2; Defendant No. 7 is the mother of defendants Nos. 1 and 2; Defendant Nos. 8 and 9 are wives of Defendants Nos. 1 and 2 respectively and the Defendant No. 10 is the father's sister's son of Defendants Nos. 1 and 2. On the 18th June 1918 the Plaintiffs commenced an action to enforce the mortgage, impleading Defendants Nos. 1 to 6 as parties to the suit.

3. The decree was, however passed only against Defendant No. 1 upon the ground that no legal necessity for the debt was established. The decree was a personal decree and was dated the 17th of June 1919. The Plaintiffs levied execution of the decree and sought to sell the right, title and interest of defendant No. 1 in the family properties The execution was resisted by Defendants Nos. 3, 7, 8 and 10. The objections of defendants Nos. 3, 7 and 8 were founded upon a certain partition decree in Suit No. 81 1918 The suit was instituted by Defendant No. 3 alleging himself to be the adopted son of defendant No. 1. In the partition the shares of the different members of the family in the property were ascertained. Defendants Nos. 7, 8 and 9, the mother and wives of defendants Nos. 1 and 2 got certain shares in lieu of maintenance under the Hindu law. Defendant No. 3 also got a share out of what was allotted to Defendant No. 1 as his adopted son. Thus, the share of defendant No. 1 was considerably diminished. Even this diminished share was disposed of by a sale deed, dated the 30th January 1919, executed by him and Defendant No. 2 in favour of Defendant No. 10. The aforesaid distribution of the shares in the properties to the different members in the family and to Defendant No. 10 was before the plaintiffs' decree was put in execution. Defendant No. 10 put in an objection and the property sold to him was exempted from the sale under Order XXI, Rule 58 of the Civil Procedure Code. Similarly, the shares allotted to Defendants Nos. 3, 7 and 8 were exempted from the liability of the Plaintiffs' decree in a proceeding instituted under Section 47 of the Civil Procedure Code.

4. The Plaintiffs, therefore, instituted the present suit by presenting their plaint in the Court of the Subordinate Judge, Patna. In the plaint the following reliefs were claimed:

It may be adjudicated and declared that the deed of absolute sale, dated the 30th January 1919 executed by Defendant Nos. 1 and 2 in favour of Defendant No. 10 is altogether a nominal and collusive document without consideration, that it has not at all been made operative up to this time, that Defendants Nos. 1 to 6 are still in joint possession of the properties covered by the sale deed and that the said sale deed is by no means a genuine document.
It may be further adjudicated that the partition suit No. 84 of 1918 filed on behalf of Defendant No. 3 was got filed by Defendant No. 1, that Defendant No. 3 is by no means the adopted son of defendant No. 1, that the partition has not at all been made operative up to this time, that the entire estate of Defendant No. 1 is still joint and that Defendant No. 1 is still in possession thereof jointly with Defendants Nos. 2 to 6.

It may also be adjudicated and declared that Defendant No. 1 fraudulently took the aforesaid measures after the decree in favour of the Plaintiffs was passed, with a view to diminish his share as also to evade payment of the decree amount payable to the Plaintiffs and that the Plaintiffs are not bound by the same.

On the adjudication of the above points, it may be declared that the plaintiff's are entitled to realize their decree from the estate of Defendants Nos. 1 to 6 by attachment and sale.

5. The plaint was filed on a stamp paper of the value of Rs. 10 under Schedule II, Article 17 of the Court Fees Act treating the suit as a declaratory one.

6. The peripatetic Stamp-Reporter objected to the Court-fee paid and reported that the suit was not only for a declaration but for a declaration and consequential relief, and consequently the Court-fee leviable was ad valorem under Section 7, Clause (4)(c) of the Act. The Subordinate Judge before whom the plaint was presented however, disagreed with the view of the Stamp-Reporter and held that the Court-fee paid was sufficient.

7. The preliminary issues were disposed of by the Subordinate Judge on the 14th May 1923, and the other issues were disposed of on the 11th June 1923. As a result of the final decision of the Subordinate Judge the Plaintiffs' suit was decreed as against Defendant No. 1 and dismissed as regards Defendants 2 to 6 and 9 to 10.

8. The plaintiffs filed an appeal before the District Judge of Patna upon the ground that the suit was valued at Rs. 2,100 only. The District Judge held that the Court-fee paid was insufficient and that the fee payable was ad valorem. He accordingly ordered the Plaintiffs to value the property, to pay Court-fee upon the subject matter of the suit and to make up the deficiency within a certain time. Assessing the value upon the principle laid down by the District Judge, the Plaintiffs valued the appeal at Rs. 5,100, which made the appeal incompetent in the Court of the District Judge and entertainable only by this Court. Accordingly, the memorandum of appeal was taken back from the Court of the District Judge, and has now been presented to this Court.

9. The Stamp-Reporter is of opinion that the Court-fee payable is ad valorem under Section 7, Clause (4)(c). The Taxing Officer, however, is doubtful as to the view taken by the Stamp-Reporter and seems to be inclined to take the view that the Court-fee paid is sufficient treating the reliefs as being only declaratory.

10. It is remarkable that the Taxing Officer was the District Judge at the time when the memorandum of appeal was presented in the District Court and at that time he was of opinion that ad valorem Court-fee was livable. He says that upon further considerations and upon the law having been placed before him he has now changed his opinion.

11. The decision of the question depends upon the scope of the Plaintiff's suit and the reliefs claimed by them. The Plaintiffs want to have it declared that the properties in suit belong to defendant No. 1 and that the other Defendants have no interest therein. Accordingly, they pray for reliefs Nos. 1, 2 and 3. On account of the circumstances disclosed in the execution proceedings, the Plaintiffs had to set-forth those circumstances in their plaint and also in the reliefs. Those are the circumstances upon which Defendants Nos. 3, 7, 8 and 10 base their claim to the property; but the re-iteration of those facts and circumstances in the reliefs do not alter the real nature and scope of the reliefs. The Plaintiffs will be entitled to proceed against the properties in execution of their decree only when Defendant No. 1 has subsisting interest therein and the other defendants have no interest. It is conceded by the Stamp-Reporter as well as the learned Government Pleader that reliefs Nos, 1 to 3 are merely declaratory. It is, however, contended that relief No. 4 is in the nature of consequential relief. That relief has already been quoted above. The Plaintiffs want it to be declared that they are entitled to realise their dues from the estate of Defendants Nos. 1 to 6 by attachment and sale of the interest of Defendant No. 1 only; it was conceded before the Subordinate Judge that the Plaintiffs have no right in execution of the personal decree against defendant No. 1 to proceed against the share of defendants Nos. 2 to 6 and that the relief is merely directed against Defendant No. 1 only. I will quote from the decision of the learned Subordinate Judge on this point:

The prayer No. 4 as it is worded means that the Plaintiff wants to proceed against the estate of all the Defendants jointly , as the does not say there that he may be declared to be entitled to proceed against the right, title and interest of Defendant No. 1 only in the joint estate. He cannot proceed against the shares of Defendants 2 to 6. The learned Pleader for the Plaintiff, however, states that this prayer means he wants to proceed against the right, title and interest of Defendant No. 1 only. Taking this to be so, let us see if be can bring into hotchpot the properties which have been released in favour of Defendant No. 10 or allowed in favour of Defendants 3 to 6.
12. Therefore that relief was confined in the Court below against Defendant No. 1 only. A number of authorities have been cited on both sides. It is not necessary to refer to all of them. The following only may be cited: Kosavar Appu Ramakrishna Reddi v. Kotta Kata Reddi 80 M. 96 : 1 M.L.T. 811 : 16 M.L.J. 458; Sarihar Prasad Singh v. Shyam Lal Singh 21 Ind. Cas. 401 : 40 C. 615; Bibi Phul Kumari v. Ghanshyam Misra 12 C.W.N. 169 : 7 C.L.J. 30 : 10 Bom. L.R. 1 : 5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 25 C. 202 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C.); Dhondo Sakhiram Kulkarni v. Govind Babaji Kulkarni 9 B. 20 : 5 Ind. Dec. (N.S.) 13; Aisa Siddika v. Bidhu Sehhar Banerjee 18 Ind. Cas. 633 : 17 C.L.J. 30; Ganeshi Lal v. Beni Pershad 9 Ind. Cas. 673 : 1 P.R. 1911 : 47 P.L.R. 1911: 22 P.W.R. 1911 and Zinnatunnessa Khotun v. Girindra Nath Mukherjee 30 C. 728.

13. The other cases have all been referred to in these cases I have gone through the cases very carefully and I am of opinion that the principle laid down in Harihar Prosad Singh v. Shyama Lal Singh 21 Ind. Cas. 401 :40 C. 615 would not apply to the present case. In that case the Plaintiff prayed for a declaration (1) that a decree amounting to Rs. 2, 794 and odd should be declared forged, illusory and unfit for execution; and (2) that the family property valued at Rs. 7,000 was not liable to be sold in execution of the decree. It is conceded by the Stamp-Reporter that this is a converse case to the present one. In the present case the plaintiff has obtained a decree against the Defendant No. 1 on payment of full Court-fee and he would be entitled to sell the property if the Defendant no. 1 has got any right, title or interest therein. He need not in the present case seek any further relief such as has been claimed by him in relief No. 4 for a declaration that "they are entitled to realise their decree from the estate of Defendants Nos. 1 to 6 by attachment and sale. "

14. In the case of Zinnaturnessa Khatan v. Girindra Nath Mukherjee 30 C. 728 it was considered sufficient that a suit in which the only prayer was to have it declared that a certain decree is ineffectual and inoperative against the plaintiff was held to be a sufficient prayer to give the plaintiff relief and the Plaintiff need not have prayed for a consequential relief.

15. The case of Ganesh Lal v. Beni Pershad 9 Ind. Cas. 673 : 1 P.R. 1911 : 47 P.L.R. 1911:22 P.W.R. 1911 has reviewed all the authorities on the subject. It would seem that a consequential relief can be insisted upon only when the plaintiff will not get any redress by having merely a declaratory decree; for instance, when the property is in possession of the Defendant, the Plaintiff will not be allowed to seek merely a declaration of his title but must pray for recovery of possession as a consequential relief, and where a mere declaration is sufficient be give the Plaintiff full relief a further declaration will be deemed to be redundant; and the fact that the Plaintiff asked for a redundant relief will not alter the nature and scope of the suit and would make the suit one for a declaration with consequential relief. The present is a case where relief No. 4 in the plaint is a mere surplusage, for upon the declarations made under" reliefs Nos. 1 to 3 the plaintiffs would be entitled be attach and sell the right, title and interest of Defendant No. 1 in the property in suit. On the other hand, the granting of relief No. 4 will not at all improve the position of the Plaintiffs for they would not be entitled to get the property unless Defendant No. 1 has interest therein. The decision of their Lordships in the case of Bibi Phul Kumari v. Ghanshyam Misra 12 C.W.N. 169 : 7 C.L.J. 30 : 10 Bom. L.R. 1:5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 25 C. 202 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C.) is instructive.

16. I would, therefore, hold that the relief should be treated only as declaratory and the Court-fee should be charged under Schedule II Article 17 of the Court Fees Act. Hearing fee two gold mohurs.