K. Sundaramoorthy Mudaliar vs Manickammal and Another

T. Venkatadri, J.—This Civil Revision Petition arises out of proceedings in an Unnumbered Original Suit of 1962 on the file of the Court of

the District Munsif of Ranipet. The plaintiff is the petitioner herein. He filed a suit for a declaration that the equitable mortgage executed by the

second defendant to the first defendant on 20th May, 1953 is not binding on the plaintiff.

The facts necessary for the disposal of this Revision Petition are as follows. The property originally belonged to the second defendant and he

sold the same to the plaintiff on 30th August, 1958. It is only after this purchase the plaintiff came to know that there was an equitable mortgage in

respect of the property created by the second defendant in favour of the first defendant and that in respect of that the first defendant had obtained

a decree and that execution proceedings are now pending. In order to remove the cloud to title he had filed the suit for a declaration that the

mortgage deed executed by the second defendant in favour of the first defendant is not binding on him, and, that any decree passed in

consequence of that will not affect his right to the property.

When this plaint was filed in the lower Court the Office took objection in respect of the Court-fee payable on the plaint and directed the

plaintiff-petitioner to pay Court-fee on the value mentioned in the equitable mortgage. The plaintiff-petitioner had valued u/s 25(d) of the Court-

fees Act, whereas the Office insisted that it should be u/s 40 of the Act.

The question now is whether the petitioner is liable to pay Court-fee u/s 40, that is, for the cancellation of the equitable mortgage created by the

second defendant in favour of the first defendant, or whether he should pay Court-fee u/s 25(d) of the Act for a mere declaration that the equitable

mortgage is not binding on him.

On reading the allegations in the plaint it is clear that plaintiff''s intention is to get a declaration from the lower Court that the mortgage is not

binding on him. The learned Counsel for the petitioner has cited before me the decision in In re Thirupathicammal AIR 1956 Mad. 179 in which

Ramaswami, J., held that a party can always pay the Court-fee u/s 25(d) if he is not a party to the document. Here the petitioner is not a party to

the document created by the second defendant in favour of the first defendant. Applying the principle laid down by Ramaswami, J., I feel that the

petitioner is entitled to pay Court-fee u/s 25(d) of the Act. It is also represented to me on behalf of the petitioner that he wants only a declaration

that the equitable mortgage deed dated 20th May, 1953 is not binding on him. Therefore, it is enough if the petitioner pays Court-fee u/s 25(d).

The Civil Revision is allowed. Therefore will be no order as to costs.