1. In these two cases the appellants are Mitakshara sons. They sought in two suits in the Court of the Subordinate Judge to set aside decrees made upon mortgages entered into by their father and to obtain possession of their individual shares in the joint family property. In one case they valued their shares in the joint family property at Rs. 11,000 and in the other case at Rs. 5,400, the decrees sought to be set aside being for Rs. 11,647 in one case and Rs. 10,810 in the other. They averred that inasmuch as their suits were for recovery of, possession of property, they were entitled to maintain them on payment of a Court-fee upon a sum equal to ten times the Government revenue on the property.
2. The learned Subordinate Judge differed from them and was of opinion that the Court-fee to he paid was to be calculated on the suit as a suit for a declaratory decree with consequential reliefs [section 7, clause 4(c), of the Court Fees Act]. He, therefore, declared that the consequential relief was obviously the total amount of the decrees and called for ad valorem fees upon the sum decreed in each case. This the appellants declined to pay, and appeal to this Court against the order made.
3. Reliance is placed in appeal upon the decision of the Judicial Committee in Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 503 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C.). In that case nothing was decided save that a Court-fee of Rs. 10 is to be paid upon a suit to set aside an order of a Civil Court refusing to release an attachment under section 283 of the Civil Procedure Code.
4. Reliance is next placed upon the decision in Ganesh Bhagat v. Sarada Prasad Mukerjee 30 Ind. Cas. 111 : 42 C. 370 : 19 C.W.N. 895, in which it was held that in a suit to set aside a decree the valuation should be based upon the extent of the plaintiff's interest in the decree.
5. The later decision is no doubt in point, but the whole basis of the case-law upon the subject, beginning with Boidya Nath Adya v. Makhan Lal Adya 17 C. 680 : 8 Ind. Dec. (N.S.) 994 and exhaustively dealt with in Umatul Batul v. Nauji Kuar 6 C.L.J. 427 : 11 C.W.N. 705, is that when a consequential relief is sought in addition to a declaratory decree, the plaintiff is bound to fix upon the consequential relief a reasonable value. If he puts upon the consequential relief a ridiculous value, then the Court must step in and fix a reasonable value for him. This rule is based upon section 54 of the old Code, now Order VII, rule 11(b). Such a case must be dealt with on its own merits. In the case before us the plaintiff has actually valued the relief sought at Rs. 11,000 in one case and Rs. 5,400 in the other. Rs. 11,000 is obviously a reasonable valuation, nor can we say that Rs. 5,400 is an unreasonable valuation, in view of the fact that the decree was a decree upon a mortgage and that the whole of the mortgaged property has been sold and that as far as we know from the written statement there is no other property but the mortgaged property which can be sold. We cannot allow the plaintiff to now turn round and say that if he had known that he would be made to pay an ad valorem. Court-fee on the value which he put on the relief sought, he would have valued that relief less highly. We must direct that the Court-fee to be paid in these cases be the ad valorem Court-fee on Rs. 11,000 in one case and Rs. 5,400 in the other.
6. Payment of the deficit Court-fee in the lower Court must be made on or before the 15th of July. The record may be sent down at once.
