1. This is a stamp reference in respect of an appeal which purports to seek the relief of a mere declaration. The reference arises out of a suit for sale upon a mortgage. One of the defendants, Makund Ram, was impleaded as a subsequent transferee of a portion of the mortgaged property. Subsequently, it transpired that Makund Ram had parted with his proprietary interest in the property by a partition in favour of his two sons and a grandson. Under the terms of the partition the property went to the sons, while Makund Ram himself was entitled to get a maintenance allowance of Rs. 80 per mensem from his sons and grandsons. The latter were to be personally liable for payment of this amount, and the allowance was further secured by a charge upon the property in the hands of the sons. The suit was dismissed as against the sons as being time barred, but was decreed against the remaining defendants, including Makund Ram; and the decree contained a direction that Mukund Ram's charge upon the mortgaged property was to be sold in execution of the decree.
2. Makund Ram appealed against the decree, claiming his relief as follows:
That the Hon'ble Court will be pleased to modify the decree of the Court below by granting a declaration that the plaintiffs are not entitled to get the right of Makund Ram sold, or grant such other and further relief as it may deem fit.
3. The appeal was valued at Rs. 7,970 (the decretal amount) and a court-fee of Rs. 10 only was paid on the memorandum of appeal as for a declaration.
4. Objection was taken by the Chief Inspector of Stamps that the court-fee was insufficient, as the declaration asked for was not without consequential relief, and by merely filing a copy of the judgment in the execution proceedings the appellant would be able to save his charge from sale.
5. The Taxing Officer, after hearing the advocates for the parties, was of opinion that the relief for a declaration was misconceived, and the appellant was really claiming that the charge should not be sold under the decree appealed against. The Taxing Officer was however of opinion that the subject matter in dispute was incapable of being estimated at a money value and that therefore a fixed fee might be paid under Schedule 2, Article 17,. Clause 6.
6. It has been contended before me that this is an appeal for a mere declaration in which no consequential relief is prayed, and that the fixed court-fee of Rs. 10 is sufficient. It is also urged that, in any case the value of the subject matter in dispute cannot be estimated at a money value, since this is not a claim for maintenance, but only a claim that a certain charge for maintenance shall not be sold in execution of the decree.
7. It has been contended by the learned Assistant Government Advocate that the court-fee is payable under Section 7, Clause 4 (c), to obtain a declaratory decree or order where consequential relief is prayed. It is pointed out that the appellant himself has asked that the decree of the trial Court be modified by granting a declaration. This means that the appellant asks the High Court to grant a declaration that the plaintiffs are not entitled to sell the right of Makund Ram and to modify the decree of the Court below in accordance with that declaration. I think this clearly amounts to a claim for a declaration where , consequential relief is prayed. It is contended by the appellant's counsel that the relief for modification of the decree of the Court below is merely superfluous since that would follow necessarily by the granting of the declaration. I do not think that that relief is in any way superfluous. What the appellant really desired was to get the decree of the Court below modified; and he sought to obtain his object by obtaining a declaration to the effect that the plaintiffs are not entitled to get his right sold. I hold that Section 7, Clause 4 (c), governs the case.
8. That being so the question whether the subject matter in dispute is capable of being estimated at a money value does not arise, since the fee is to be paid according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In this case the appellant has valued it at Rs. 7,970. The court-fee therefore must be paid ad valorem at that amount. The appellant is allowed fifteen days from the re opening of the Court after the vacation for depositing the court-fee.