S R M RAMANUJAM PILLAI Vs. RAMASWAMI PILLAI

JUDGEMENT

(1.) The question involved in this petition is whether certain reliefs in the plaint should be valued for Court-fee purposes under Section 7(iv) A as for cancellation of an instrument. The matter was considered by the lower Court on an objection raised by the Court-fee examiner and it was found that the valuation had to be made under the aforementioned provision and an additional Court-fee should be paid ad valorem on the amount of the mortgages and the value of the properties comprised in the sale deeds, in favour of defendants 5 and 6, mentioned in the plaint.

(2.) The suit is on a mortgage bond executed by the first defendant in plaintiff's favour on the 17 January, 1931, for Rs. 2,000. The first defendant at the time of the execution of the mortgage was the manager of a joint Hindu family consisting of himself and his brothers, defendants 2, 3 and 4. They are the sons of one Muthu Karuppa Pillai, who died shortlybefore the execution of the suit mortgage. During the lifetime of Muthu Karuppa Pillai he had executed on the 9 May, 1928, a mortgage in favour of the fifth defendant of item 4 in the plaint schedule. The fifth defendant is the son-in-law of Muthu Karuppa Pillai. He had also executed in favour of the sixth defendant on the 16 August, 1928, a mortgage of items 1 to 5. On the 29 March, 1938, item 4 was sold by defendants 1 and 2 after the, death of their father to the sixth defendant. The fifth defendant filed O.S. No. 54 of 1938 on the basis of the mortgage in his favour dated the 9 May, 1928, concerning item 4 and impleaded the sixth defendant therein. He impeached the validity of the mortgage and sale in favour of the sixth defendant and that suit was decreed in favour of the fifth defendant holding that those transactions were of a nominal character.

(3.) In paragraphs 7 and 11 of the plaint in this suit these facts have been recited and it is averred that the respective transactions referred to above, being nominal and never intended to be given effect to, were not binding on the plaintiff. It was also alleged that no consideration passed under the said documents and the recitals of consideration contained therein are false and fraudulent. It was urged that the fifth and sixth defendants were not entitled to any rights in respect of the respective items under these instruments. The decree obtained by the fifth defendant in O.S. No. 54 of 1938 was also attacked as not being valid or binding on the plaintiff. As an alternative remedy it was urged that if the hypothecation was deemed to be valid and binding on the plaintiff, the plaintiff was willing and ready to redeem item 4 by paying a proportionate share of the sum due on the hypothecation bond in favour of the fifth defendant. In paragraph 15 it was stated that as the decree should be binding on all the defendants therein, they were all impleaded as parties to the suit. Lastly in paragraph 18, the relief that was asked for was a preliminary decree directing the defendants to pay the amount due under the mortgage bond and " in default to sell the properties free from the claims of defendants 5 and 6, or if the Court finds that the claims of defendants 5 and 6 are in any way binding on the plaintiff to give appropri ate directions to redeem items 1 to 5 of the undermentioned properties on payment of the proportionate amount due on them" With reference to the alternative relief concerning the redemption of items 1 to 5 on payment of the proportionate sum due to defendants 5 and 6, it appears that the order of the lower Court that it was admitted by the plaintiff that in addition to the court-fee paid for the suit mortgage debt, he was liable to pay court-fee in respect of the relief for redemption of the mortgage in favour of defendants 5 and 6. So the only question that remains is whether in view of the relief asked for--the sale of the suit properties free from the claims of defendants 5 and 6 in the event of default in payment of the mortgage money the court-fee paid is correct or whether, as contended by the court-fee examiner, the plaintiff is bound to pay court-fee under Section 7(iv) A on the basis of relief for the cancellation of the respective documents.