Yogeshwar Dayal, J.

1. This appeal has been placed before the Full Bench in view of the order of reference dated May 18, 1977 passed by Kapur, J.

2. The appeal was filed by the plaintiff-appellants against the order dated May 14, 1973, passed by Shri A.K. Srivastava, Sub-Judge, Delhi holding that the value of the suit for purposes of Court-fees and jurisdiction was Rs. 54,000 and also holding that the suit had not been valued correctly for purposes of Court-fees and jurisdiction that he had no jurisdiction to try the suit and directed that the plaint be returned to the plaintiffs for presentation to the proper Court.

3. The plaintiff-appellants had filed the present suit, out of which the appeal arises, in their representative capacity under Order 1, Rule 8 of the Civil Procedure Code. The prayer made in the plaint was as under:

17. Therefore, the plaintiffs pray that a declaration decree to the effect with costs of the suit be passed in favour of the Ram Sanahi Sect, that the said WILL was not executed and could not be executed by the said Mahant Narsingh Dass and that he said WILL is void, and illegal which confers no right or title whatsoever on the defendants in Ramadwara and the property etc. attached to it as detailed above and the money of the Ramdwara and consequently the said defendants Nos. 1 and 2 be restrained by permanent injunction from interfering in the possession of the Ramdwara and the property and cash attached to it which vests in the entire Ram Sanahi Kharparoa Sect.

4. In para 16, the plaintiffs valued the suit for purposes of Court-fees and jurisdiction at R. 200 and affixed the Court-fees of Rs. 19.50 on the plaint.

5. The prayer in para 17 of the plaint was made on following material allegations:

It was averred that the plaintiffs are members of Ram Sanahi Kharpara Sect. (hereinafter referred to as the Sect) which comprises of innumerable persons. There is Ramdwara, known as Chhota Ram Dwara which belongs to and is dedicated for the benefit of the Sect. where in the general public and specially the members of the Sect have been gathering for purposes of worship and religious sermons.

6. The said Ram Dwara was constructed in olden days and its origin is lost in antiquity. It was dedicated for religious purposes to the followers of the Sect. One of the Mahants of the said Ram Dwara, Mahant Bhagwan Dass, Guru of Mahant Purshottam Dass, the then incumbent Mahant of the said Ram Dwara did a lot of beneficial acts for the upkeep of the said Ram Dwara with the moneys belonging to the Ram Dwara and also received offerings from the followers of the Sect.

7. Thus, the Ram Dwara is a religious and charitable institution built and dedicated for use by the said Sect and its followers in general and is not the property of any individual or of any incumbent Mahant. The incumbent Mahant simply sits as Custodian and Pujari of the said Sect and looks after and manages the Ram Dwara and its properties for the welfare of the followers and for carrying out the religious objectives and directives.

8. It was alleged that the acquisitions made by a Mahant from the Ram Dwara including the offerings or income from the property are the properties of the Ram Dwara and on no account such property could be treated as separate and personal properties by any of the Mahant in the line of succession of the said Ram Dwara.

9. It was then averred that according to law, usage and custom and tenets of the said Sect, no Mahant has the right or power to transfer or give the said Ramdwara or property attached to it or its moneys received as offerings or the rent of the property to any one. The Mahant could only exercise his poer of management of the Ram dwara and to repair the same during his lifetime and then he passes it on to his own Chela who succeeds him when nominated by him or is otherwise elected as a Mahant by the Bank. The last Mahant of the Ram wara in succession was Mahant Narsing Dass who got it from his Guru Mahant Purshottam Dass who exercised his right as a Mahant in the said way (as stated above) till the time he was fit and capable to act as cuh, till his death on or about 19th May, 1964.

10. The further material allegations made in the plaint were that Shri Har Narain (defendant No. 1) alleged the existence of a will alleged to have been executed by late Mahant Narsing Dass in respect of the aforesaid Ram wara and the properties attached to it and some moneys deposited by the late Mahant in his own name in a bank which belonged to the said Ram wara and were acquired and accumulated from the income of the said Ramdwara.

11. It is claimed that the alleged will dated 14th may, 1964 and registered on 15th may, 1964 is obsolutely void and illegal document which could not be executed by the late Mahant in favour of the defendants as he was not competent to do so under the law, custom and usage of the said Sect. The due execution of the will was also challenged.

12. It was thus averred that the defendants, on the basis of the aforesaid will, proclaimed themselves as the owners of the said Ram wara along with the properties attached to it as well as the cash balance mentioned above.

13. The defendants inter alia challenged the valuation of the suit by the plaintiffs for purposes of Court-fees and jurisdiction. The Trial Court framed the following issue:

whether the suit is properly valued for purposes of Court-fee and jurisdiction

14. The parties led evidence on this issue.

15. The Trial Court after examining the evidence held that in the present case the suit against the defendants is against the right of ownership claimed by the defendants. It also took the view that it does not relate to challenge of mere right of management. The Trial Court came to the conclusion that the plaint ought to have been valued in accordance with Section 7(iv)(e) of the Court Fees Act, 1870 read with the second proviso, as applicable to Delhi, The Trial Court, on the evidence led, before, it also came to the conclusion that since major portion of the property has been let out and the rest of it is in occupation of the defendants, it cannot be said that the property was being used exclusively for the Ram wara and incapable of valuation.

16. The Trial Court also took the view that even if the contention of the plaintiffs is accepted that the portion of Ram wara is being used for regiri purposes, the portion in occupation of the tenants cannot be said to be the property being used exclusively for purposes of Ram wara and incapable of valuation.

17. The Trial Court valued the properties in dispute at Rs. 55,000 including the value of agricultural land at Rs. 8,000 and cash deposit of Rs. 10,000 lying in the bank.

18. Mr. K.K. Raizada, learned Counsel who appeared on behalf of the appellants, made the following submissions:

(1) that he suit is mainly for permanent injunction and the prayer regarding declaration is a surplusage and should be ignored;

(2) in the alternative, even if it be held that the relief of declaration is not a surplusage but is a substantive relief claimed by the plaintiffs, the relief of permanent injunction prayed for is not consequential to the relief of declaration prayed for and, therefore, Section; 7(iv)(c) is not applicable and

(3) even if Section 7(iv)(c) is attracted to the averments contained in the plaint and the relief prayed, yet the second proviso to this provision, as applicable in Delhi, as not attracted.

19. As to the first submission of the learned Counsel, it was urged that the plaint had been filed in a representative capacity and the relief was also claimed in the same capacity. The plaintiffs are not parties to the alleged will on the basis of which the defendants are claiming title and therefore, the plaintiffs can ignore the will and this Court should also ignore the averments in relation to the challenge to the will and treat the suit as purely for permanent injunction covered by Section 7(iv)(d) of the Court-fees Act.

20. We has already noticed the material averments in the plaint. Whether the suit is purely for permanent injunction is a matter of construction of plaint in each case. But in construing the plaint, the Court has to look at the substance of the plaint rather than its mere form. If on the whole and in substance, the suit appears to ask for smoke relief as stated, yet the Court can look at the substance of the relief. It is clear from even the form that the suit is for declaration coupled with the consequential relief. But we are to go into the substance of the plaint rather than mere form. In construing the substance of the plaint, it will be noticed that the plaintiffs do not claim to be in possession of the properties in dispute.

21. The Trial Court has found that the defendants are in possession of Ram wara partly through self-occupation and substantially through their tenants. The relief for injunction as prayed cannot be granted to the plaintiffs unless the obstacle in the way is removed. The obstacle is the will which is sought to be challenged by way of declaratory relief.

22.Learned Counsel for the plaintiff referred us to Harchand Singh v. Dalip SIngh, AIR 1965 Punj. 468. H.R. Patel v. Mrs. C.G. Venkatalakshamm, AIR 1955 Mys. 65. Parumal Ailmal v. Motumal (1912) 17 Ind. Cas. 44 (Sind). and Mohendra Sunder v. Dinabandhu. (1913) 21 Ind. Cas. 771 (Cal.)

23. These cases are, however, of no help to the appellants.

24. The case of Harchand Sing (supra) was really a converse case.

It was a suit for injunction field by the plaintiff as a co-sharer in the disputed truck to the exten of which was in possession of the defendant and the defendant was sought to be restrained from disposing it of. Grover, J. took the view that the suit which had been filed was essentially for injunction though the plaintiff, while claiming the relief had asserted that the he had one-half share in the truck in question. The learned Judge also took the view that there was no legal necessity for the plaintiff to get a declaration of his right before he could claim injunction on the facts of that case. The learned Judge, in order to decide whether the prayer for declaration was surplusage or not, laid down a test for determining it, as under (at Page 469).

The correct test which has been laid down in decided cases is that where there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction to protect if the suit will fall under Section 7(iv)(c) even though the plaintiff sought declaration by means of averments in the body of plaint and not prayed for declaration specifically at the end of the plaint. When there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. If the plaintiff merely adverse a title which can be established without the cancellation of a document or the nullification of any adverse title and only the relief are claimed which will naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title and the suit would fall under Section 7(iv)(d) and not under Section 7(iv)(c) and the Court-fee would be payable in such cases under Section 7(iv)(d) vide Venkata Ranga Rao v. Sita Ramchandra Rao. AIR 1941 Mad. 91 [LQ/MadHC/1940/175] .

25. If we say with respect to the learned Judge, we are in complete agreement with the test laid down by him. The test has laid down by him is that a suit for injunction will be treated as a suit under Section 7(iv)(d) of the Court-fees Act if a plaintiff can get an injunction prayed for without the necessity of praying for declaration. The prayer for declaration will be surplusage if the plaintiff can get the relief for injunction without praying for declaration. But the declaration has to be prayed where an obstacle has to be removed before the plaintiff can claim the relief of injunction simpliciter.

26. We have, therefore, to examine whether, in the present case, the plaintiffs have to remove any obstacle out of their way before they can claim the relief of injunction. The plaintiffs do not deny that the defendants claim to be mahants on the basis of the will. As they are mahant, they are entitled to manage the same and retain the possession. The prayer of permanent injunction simpliciter from interfering in the prayer of Ram wara and the property and cash cannot, therefore, be granted on the plaintiffs own averments. As mahants, the defendants are entitled to possession as well as management. For depriving them of their possession, the plaintiffs have sought the declaration that the will executed in their favour by the previous mahant is void and illegal and does not confer any right or title on the defendants in the Ram wara or the properties attached to it. So long as the plaintiffs do not challenge the alleged title claimed by the defendants, the obstacle in the way of claiming relief of injunction remains. As the obstacle to the relief of permanent injunction cannot be removed without claiming the declaration as prayed for by the plaintiffs themselves, it cannot be said that the relief of declaration sought for should be ignored as surplusage.

27. The other three cases cited by the learned Counsel for the appellants are wholly irrelevant and need not be discussed.

28. There is thus no merit in the first submission of the learned Counsel.

29. Coming to the second submission we have held that the relief of decelaration prayed for by the plaintiffs was necessary. Now the question arises; Can the relief of injunction prayed for by the plaintiffs be considered as consequential to the main relief or not

30. For decision of this question, again, the question has to be decided on the basis of the allegations in the plaint and the prayer made therein. Mere astuteness 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.

31. Section 7(iv)(c) without the second proviso reads as under:

7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(i) .

(ii) .

(iii) .

(iv) In suits

(a) .

(b) .

(c) to obtain a declaratory decree or order when consequential relief is prayed..In all such suits the plaintiff shall state the amount at which he values the relief sought:

Provided that the minimum Court-fee in each case shall be thirteen rupees.

32. The essential condition for the applicability of this clause is that apart from a declatory relief which the plaintiff claims the additional relief which the plaintiff asks for must constitute consequential relief. As to what is the consequential relief has been the subject-matter of numerous decisions since the day the provision of Section 7(iv)(c) was enacted but the controversy has since been settled. One of the cases which settled the controversy was the case reported as Mt. Zeb-ul-Nissa v. Din Mahammad. AIR 1941 Lah.97 (FB) This case received approval of the Supreme Court in the case reported as Shamsher Singh v. Rajindir Prasad. AIR 1973 SC 2384 [LQ/SC/1973/224] .

33. In the case of Mt. Zeb-ul-Nissa case (supra) Bhide, J. speaking for the Full Bench explained the meaning of the expression consequential relief in Section 7(iv)(c) of the Court-fees Act. The Bench held:

The expression consequential relief in Article 7(iv)(c) means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for any where in the Act and cannot be claimed independently of the declaration as a substantial relief.

34. We are in the complete agreement with the meaning of the expression consequential relief given by the aforesaid Full Bench decision.

35. The aforesaid Full Bench in the case of Mt. Zeb-ul-Nissa further observed:

In a suit for a declaration that a deed or a decree is null and void neither the answer to the question whether the plaintiff is or is not a partly to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of Section 42. Specific Relief Act, furnishes a satisfactory or conclusive test for determining the Court-fee payable. The true criterion for determining the question of Court-fee in cases of this discription is the substance of the relief claimed as disclosed by the plaint, taken as a whole and not merely the form in which the relief claimed is expressed. The mere fact that the relief as stated in the proper clause is expressed in a declaratory form does not necessarily show that the suits is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Art. 17(iii) and the Court-fee payable would be Rs. 10 only. At the initial stage of determining the Court-fee on a plaint, the question whether the declaratory suit is liable to be dismissed, either because it does not fall within the purview of Section 42, Specific Relief Act, or because the plaintiff has failed to sue for a further relief which was open to him or for some other reason does not arise. That question arises only after the necessary Court-fee on the true relief as disclosed by the plaint is paid and the plaint is properly before the Court.

36. We have already taken the view that the plaintiffs could not claim the relief of injunction without praying for declaration as prayed for It must, therefore, be held that the relief of declaration and injunction prayed for is a claim to obtain declaratory relief where consequential relief is prayed for.

37. Consequently, the suit is governed by the provisions of Section 7(iv)(c) of the Court-fees Act for determining the valuation for purposes of the court-fee payable on the plaint.

38. We may now deal with the third submission of the learned Counsel for the appellant. Before dealing with this submission, it will be appropriate to notice the second proviso to Section 7(iv)(c) as well, which is as under:

Provided further that in suits coming under sub-clause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of this section.

39.It is clear that if we do not read the aforesaid second proviso, in all suits comong under Section 7(iv)(c) of the Court-fees Act, there is a right given to the plaintiff to place any valuation that he likes on the relief he seeks-subject, however, to any rules made under Section 9 of the Suits Valuation Act, and the Court has no power to interfere with the plaintiffs valuation, (See observation in Smt. Shiela Devi v. Krishan Lal Kalra). ILR (1974)2 Delhi 491. This absolute right has however been curtailed by the aforesaid second proviso if it is applicable.

40. The learned Counsel for the appellant submitted that the material words in the second proviso, so far as the present case is concerned, are where the relief sought is with reference to any property. It was submitted that the relief sought in the present case is not with reference to any property. The argument of the learned counsel was that the declaration sought is in respect of a will which is not with reference to any property. The argument of the learned Counsel was that the declaration sought is in respect of a will which is not property within the meaning of the proviso.

41.In this connection, the learned Counsel referred us to the decision of the Division Bench in M/s. Ranchhoddas Shamji Khirani v. Mrs. Balwant Kaur Malik, ILR (1974)2 Delhi 491. where Andley, J. (as his Lordship then was) and one of us took the view that the second proviso will apply only to such suits which are with reference to any property if the valuation of the suit can be calculated in the manner provided for by Clause (v) of Section 7 and thus the Division Bench took the view that it will apply but only to immovable property referred to in Clause (v) of Section of the Court-fees Act. It is true and we are in respectful agreement with the said decision.

42. But the question arises whether the present suit can be said to be with reference to immovable property or not as Clause v) of Section deals with valuation of suits for the possession relating to land, houses and gardens. For determining the question as to the nature of the relief we have again to look at the substance of the plaint. It is true that the declaratory relief is with reference to the will. The consequential relief is with reference to possession of the immovable property.

43. The expression relief refers to the expression relief mentioned in Section 7(iv)(c) of the Court-fees Act. If the substance of the suit is examined, it will be noticed that it is the title of the defendants which is disputed. The plaintiffs do not claim the title in themselves or assert the same but are disputing the hostile title set up by the defendants which is claimed by them by virtue of the will.

44. It must, therefore, be held that the relief sought is with reference to the properties covered by the will.

45. The fact that the relief claimed in the present suit is in relation to property as contemplated by the second proviso is fortified by the view taken in the decision reported as Shamsher Singh v, Rajindera Prasad, AIR 1971 Delhi 249. Full Bench decision of the Punjab High Court reported as Prabhu v. Girdhari AIR 1965 punj. 1(FB). and in Chhotu Singh v. Jit Singh. (1975) 77 PLR 372 [LQ/PunjHC/1975/46] .

46.The learned Counsel for the appellants, however, referred to the decision reported in Onkar Nath v. Rameshwer Dass. AIR 1972 Delhi 80. Ram Kanwara v. Naurang Raj (1965)Punj. LR 155. Marimuthu Nader v. Tutikorin Municipality. AIR 1955 Mad. 212 [LQ/MadHC/1953/311] . Nariman K. Irani v. A. Batcha Sahib, AIR 1955 Mad.676 and Ramesh Chand v. Smt. Sarla Devi. 1972(2) RLR 1041.

47. It will be noticed that in the case of Onkar Nath (supra) Despande, J, was dealing with a suit in relation to the right to manage the property which was incapable of valuation and no interest in property was in dispute and, therefore, Despande, J. rightly took the view that Section 7(iv)(c) applies, but the proviso will not apply.

48. In the case Ram Kanwar (supra) Bishan Narain, J. was delaing with the lease hold rights to property. The learned Judge took the view that the proviso was applicable but the property involved was not the property as such but leasehold rights in respect of such property and those were directed to be valued in accordance with the second proviso.

49. In the case of Marimuthu Nader (supra) Nayudu, J. was dealing with a suit where no validity of any right to property was invovled. What was involved was the validity of a Municipal Scheme regarding properties.

50. In the case of Nariman K. Nariman decided by the Division Bench (supra), Mack, J. who spoke for the Bench was at pains to point out that no decision or adjudication was required to the parties, title to the property or the respective rights to possession. The relief was purely one directed personally against the mortgagees from doing an act which they had been authorised to do under the mortgage deed by reason of power vested in them under Section 69 of the T.P. Act.

51. Again, in the case of Ramesh Chand (supra) B.C. Misra, J. was dealing with respect to the validity of a decree for money and, therefore, in any case the proviso did not apply.

52. The question arises as to what are those properties and whether they are covered within the meaning of the word property as stated in the proviso. As noticed earlier, in the averments in the plaint, the property covered by the WILL related to immovable property of Ram wara and the properties attached thereto as well as agricultural land and cash. It is the title to these properties which the defendants claim by virtue of the WILL which is being disputed by the plaintiffs. The immovable property and the agricultural land are certainly properties within the meaning of the second proviso and their valuation can be calculated in the manner provided by Clause (v) of Section 7. The title of the defendants to the cash covered by the WILL is not within the purview of the expression any properties in the second proviso but that does not mean that the said proviso would cease to applicable completely because cash is the part of the property in relation to the relief sought.

53. The question then arises how the suit will be valued where part of the relief sought is with reference to the expression any property covered by the second proviso and partly not covered by it. The second proviso would be applicable to the extent where the relief sought is with reference to any property within the meaning of the second proviso and the valuation of the suit in relation to any property not covered by the proviso will be governed by the substantive part of this statutory provision, namely, Section 7(iv)(c) but it cannot be said that the second proviso would be totally inapplicable. It would still be applicable to be extent the relief sought is with reference to any property within the meaning of the second proviso.

54. So far as cash is concerned, since the plaintiffs are not claiming the recovery of the same, for that part of the relief, the plaintiffs will be entitled to value the same themselves. But the immovable property will have to be valued and calculated which shall not be less then the value to be calculated in the manner provided for in Clause (v) of Section 7.

55. So far as the immovable property other than the land is concerned, the manner of calculation is the value on the subject-matter which means its market value.

56. So far as the value of the land is concerned, it has again to be the market value unless the land is of the nature covered by Sub-clauses (a) to (d) of Clause (v) of Section 7. No evidence was led in the Court below whether the agricultural land is of the nature contemplated by Sub-clauses (a) to (d) of Clause (v) of Section 7. Thus, the immovable property as well as the agricultural land have to be valued according to the market value. The market value has been determined by the learned Subordinate Judge at Rs. 45,000. The learned Subordinate Judge was not right in determining the value of the cash for purposes of the relief claimed in the suit tat Rs. 10,000 as the cash is not property within the meaning of the aforesaid proviso. Vis--vis the relief as to cash, the plaintiffs are entitled to put any valuation.

57. Thus, the value of the suit for purposes of Court-fees would be Rs. 45,000 plus the value of the relief for purposes of declaration and consequential relief in relation to cash which the plaintiffs may value. The value for purposes of jurisdiction in a suit, covered by Section 7(iv)(c) of the Court-fees Act, would follow the value fixed for purposes of Court-fees.

58. The learned Subordinate Judge rightly took the view that the suit for purposes of Court-fees has to be valued under Section 7(iv)(c) read with the second proviso but the second proviso is applicable only to the extent indicated above.

59. The learned Subordinate Judge was thus right in holdings that the suit had not been valued properly for purposes of Court-fees and jurisdiction and was also right in ordering the return of the plaint for presentation to the proper Court.

60. For all these reasons, the appeal fails and is dismissed. Parties are however, left to bear their own costs.