Ram Kishen Upadhia vs Dipa Upadhia

Straight and Knox, JJ.—I have had an opportunity of consulting the learned Chief Justice upon the question raised by the learned pleader for the appellant which was not taken in his memorandum of appeal, viz., that by reason of the fact that the memorandum of appeal presented to the appellate Court was insufficiently stamped on the date upon which it was presented, there was no appeal at that time before the Court, and the subsequent payment of the deficiency did not cure the defect and save the bar of limitation. My brother Knox and I, in common with the learned Chief Justice, are agreed that where a question of this kind is not specifically taken in the memorandum of appeal, involving as it does primarily a matter of Court-fees and the other incidental inquiries that necessarily arise in regard thereto, it should not be entertained. That being so, we have to consider whether there is any ground for this appeal. The learned pleader has not seriously contended that the finding of the learned Judge that the plaintiff-appellant was never in possession of the property to which he seeks a declaration of his title, is not strongly in favor of the view that the plaintiff had no title in respect of which he could claim to have a declaration. The appeal is dismissed with costs.