ISHWAR DAYAL Vs. AMBA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-appellant for a declaration that the hypothecation bond, dated 2 January, 1925, executed by defendant 2, the father of the plaintiff, in favour of defendant 1, was unenforceable and that the family property mortgaged by that deed was not saleable in execution of an ex parte; decree for sale obtained by defendant 1; on the basis of the said mortgage deed. The plaintiff also prayed for a declaration that the purchase made by defendant 3 in execution of a simple money decree is null and void as against the plaintiff and the property in dispute.

(2.) The plaintiff valued the suit for the purpose of jurisdiction at Rs. 10,000 and paid a court-fee of Rs. 20. The plaintiff's case was that there was no legal necessity for the execution of the mortgage-deed by defendant 2, and the amount, if any, borrowed by defendant 2 was spent by him on "improper acts and immoral purposes." It was recited in the plaint that defendant 1 obtained an ex parte decree on the basis of the mortgage-deed without impleading the plaintiff. The relief as against defendant 3 mentioned above was based on the allegation that the purchase made by her was in execution of a simple money decree with respect to a debt that was taken by defendant 2 for immoral purposes.

(3.) Defendant 1, alone contested the suit and one of the pleas raised by him was that ad valorem court-fee on Rs. 10,000 was payable and the plaint was insufficiently stamped. The learned Subordinate Judge relying on the Full Bench decision in the case of Kalu Ram V/s. Babu Lal 1932 All. 485, accepted the contention of the defendants and called upon the plaintiff to pay ad valorem court- fee on Rs. 10,000. He granted time to the plaintiff for making good the deficiency in the court-fee, but as the plaintiff failed to make good the deficiency, he dismissed the suit with costs. The plaintiff has come up in appeal to this Court and it is contended on his behalf that the court-fee paid on the plaint was sufficient and the view taken by the Court below was erroneous. In our judgment this contention is well-founded.