VENKATA RAMANI AIYAR Vs. MNARAYANASWAMI AIYAR

JUDGEMENT

(1.) This Civil Revision Petition raises the question of the correctness of the order of the Subordinate Judge regarding the Court-fee payable on the plaint before him. The plaintiffs have filed this suit in respect of a mortgage executed by defendants 2 and 3, that is, their father and brother respectively, in favour of the 1 defendant. The family along with defendants 2 and 3, that the mortgage is not supported by consideration and that it is not binding upon them. The plaintiffs contend that Court-fee is payable under Schedule II, Art. 17-A (1) of the Court Fees Act, that is, that the plaint is filed to obtain a declaratory decree and no consequential relief is asked. On the other hand, the defendants urge that the suit falls within Section 7, Clause 4 (c) of the Court Fees Act; in other words, that the plaintiffs seek to obtain a declaratory decree as well as consequential relief. The learned Subordinate Judge agreeing with the defendants contention directed the plaintiffs to pay additional Court-fee.

(2.) A preliminary objection was raised by the defendants-respondents that the decision of the Lower Court is final under Section 12 of the Court Fees Act. This objection must be overruled as the question is concluded by the authority of Lakshmi Amma V/s. Janamejayan, Nambiar (1894) 4 MLJ 183 (FB) where it was held that a decision as to the category to which a suit or appeal belongs is not final.

(3.) The real question, therefore, to be decided is, whether the suit is governed by Section 7, Clause 4 (c) or by Schedule II, Art. 17-A (1). The answer must in my opinion depend upon the relief which the plaintiff prays for because Court-fee must be determined with reference to the prayer contained in the plaint. The plaintiffs here ask for a declaration that the mortgage is not supported by consideration and is not binding upon them. The learned Subordinate Judge thinks that the plaintiffs have asked, or perhaps he thinks ought to have asked, for not merely a declaration but also for consequential relief, namely, the setting aside of the document. Maclean, C. J. seems, with respect, to have stated the law correctly on this point in his judgment in Zinnat-un-nissa Khatun V/s. Girindranath Mukherji (1903) ILR 30 C 788 : "The safest course in these cases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success. " If this test is applied, the suit has been properly valued, and the order of the learned Subordinate Judge cannot be supported.