SARANGAPANI AYYANGAR Vs. PICHU AYYAR

JUDGEMENT

(1.) The only point in this second appeal is whether the rejection of the appeal for nonpayment of court-fees in the lower appellate Court on the market value of the two-thirds share of the properties mortgaged and belonging to the appellants or on the decree amount, whichever is less, was right.

(2.) The respondents-plaintiffs brought a suit on a mortgage executed by defendant 1, the undivided father of the present appellants, who were defendants 2 and 3. They contended that the debt was incurred by their father for illegal and immoral purposes and that their share of the mortgaged property was not responsible for the debt. The first Court found that the appellant's defence was unfounded and gave a decree for the amount sued for against the properties mortgaged. From that decree the present appellants filed an appeal to the lower Court and paid court-fees on the value of their two-thirds share of the mortgaged property valuing it on the footing of ten times the assessment. On objection taken, the lower Court on 1 September 1928 held that this fee was insufficient and made an order as stated at the beginning of this judgment and gave three weeks time to the appellants to pay the deficient amount. The appellants asked for time to pay the amount on four successive occasions and were granted time, in all about two and a half months. Finally the appellants having neither stated what the market value of the two-thirds share of the mortgaged property was nor paid the deficient court-fee on that amount, the appeal was rejected.

(3.) In their appeal against this rejection it is contended that the court-fees in the lower Court were properly calculated upon the value of the property taken at ten times the assessment. The provision for levying court-fees in appeals is Art. 1, Schedule 1, Court-fees Act, according to which on a memorandum of appeal ad valorem court-fee ought to be paid on the amount or value of the subject-matter in dispute. It is not denied, and cannot be disputed, that in a suit on a mortgage which is governed by Section 7, Clause (1), Court-fees Act, the amount or value of the subject-matter in dispute is the sum which is claimed by the plaintiff. Therefore the subject matter in dispute in the appellant's appeal to the lower Court was the liability of their property for the mortgage. The value of this subject-matter must be either the whole mortgage debt or the value of the property, whichever is less. So much is admitted. The appellants contended that the value of their property was less than the mortgage debt. If so, the question is what is the method of valuing the property for the purpose of the appeal? The appellant's argument is that the method of valuation to be adopted is the method mentioned in Section 7, Clause (v), which is mainly based on the annual revenue to Government in cases of revenue-paying lands such as the present.