MADAN MOHAN Vs. RAGHUNANDAN PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal under Section 6A, Court-fees Act. To understand the facts of the case it will be necessary to set out a short pedigree:

(2.) One Beni Madho had obtained a decree for sale on the basis of a mortgage against defendants 2 to 4. In execution of the mortgage decree the property included in the mortgage, house No. 61/14 and plot No. 65/20, were put to sale on 3 July 1941, and were purchased at auction by defendant 7, Laxmi Narain. After the auction sale but before the confirmation of the sale Madan Mohan filed this suit. His allegation in the plaint was that the family was joint, that his father Raghunandan was not in his proper senses and the joint family was not bound by the mortgage or by the decree on the basis of the mortgage and the property was, therefore, not saleable in execution of the decree. The suit was valued by the plaintiff at Rs. 11,000 and the relief claimed by him was as follows: (a) the Court may be pleased to declare that the house No. 61/14 and the plot No. 65/20 were joint family properties, belonging to the joint family of the plaintiff and defendants 2 to 4 and they were entitled to joint possession over the same and the said properties were not liable to attachment and sale in execution of the decree in Suit No. 47 of 1937 Beni Madho V/s. Mst. Ram Piare and Ors., judgment-debtors--by the Court of the learned Sessions and Civil Judge, Cawnpore. (b) The costs of the suit may be awarded to the plaintiff against the defendants, (c) Such other and further relief may be granted to the plaintiff as is just and proper. The plaintiff filed a suit on 11 July 1941 on payment of a court-fee of Rs. 20 only. On the date that the suit was filed the munsarim filed a report that ad valorem court-fees were payable under Section 7(iv)(a), Court-fees Act. On 24 July 1941 on further consideration, however; the Munsarim filed a further report that the court-fees paid were sufficient. On 11 November 1941 the Chief Inspector of Stamps made a report that under Section 7, Clause (viii), Court-fees Act, the court-fee payable was half of the amount for which attachment was made or half of the value of the property whichever was less and the deficiency in the court-fees should, therefore, be made good.

(3.) On 24 November 1941 the plaintiff filed objections that he had merely prayed for a declaratory relief and the court-fee paid by him was sufficient. The learned Civil Judge considered this matter on 23 April 1942 and he overruled the contention of both the plaintiff as well as the Chief Inspector of Stamps and came to the conclusion that ad valorem court-fees were payable under Section 7, Sub- section (iv), Clause (a), Court-fees Act inasmuch as the plaintiff had filed a suit for a declaratory decree and had asked for a consequential relief. It is against that order that the plaintiff has come up in appeal to this Court. The plaintiff's case is that the relief claimed by him in his plaint comes under Schedule II, para. 17(iii), Court-fees Act and as it is a suit merely for declaration and no consequential relief has been asked for, the court-fees paid by him were sufficient.