DEOKALI KOER Vs. KEDAR NATH

JUDGEMENT

(1.) This appeal raises the question whether the lower court has rightly held that sufficient Court-fee has not been paid on the plaint. Holding that it has not, the Subordinate Judge has dismissed the suit. On the appeal being opened, a preliminary objection has been raised that the memorandum of appeal is insufficiently stamped. The considerations involved in the objection are substantially those which govern the appeal.

(2.) The suit has been treated by the plaintiff as one to obtain a declaratory decree where no consequential relief is prayed; and so she contends, the proper fee both on the plaint and the memorandum of appeal is ten rupees.

(3.) The prayers to her plaint are framed in these terms: Relief sought for- (i) That it may be declared that the Registered Deed, dated 1st June 1896, for Rs. 14,000, executed by defendant No. 9 in favour of the father and ancestors of the defendants Nos. 1 to 8, is collusive, nominal, invalid, fraudulent and without consideration ; that the decree passed on the basis thereof which is pending execution in No. 83 of 1909 in the 1st Court of Subordinate Judge at Arrah, has been collusively and fraudulently obtained and it is ineffectual, inoperative and invalid ; and that for the satisfaction of the said decree, the mortgaged property in question mentioned in said decree cannot be sold. (ii) That if the Court finds any obstacle in granting the above relief, then it may be adjudicated and declared that without the deduction of the fair value of A annas shares of each of the mouzahs Sudhia Baradhi, Sirihira, Aailasi-Khurd, Pakdihar, Pira Shankarwar, Aniarha, Dadvva and Bhadawra, and excluding the same, defendants Nos. I to 8 have no right to lay the whole charge on the remaining property, in claim and to bring about the sale of the said property, and that such decree is not fit for execution and it is invalid, ineffectual and inoperative. (iii) That any other relief, which the Court may find the plaintiff entitled to, be granted to her against the defendants, and that the costs of this suit with interest till realization may be awarded against defendants Nos. 1 to 9.