1. The only point in this second appeal is whether the rejection of the appeal for nonpayment of court-fees in the lower appellate Court on the market value of the two-thirds share of the properties mortgaged and belonging to the appellants or on the decree amount, whichever is less, was right.
2. The respondents-plaintiffs brought a suit on a mortgage executed by defendant 1, the undivided father of the present appellants, who were defendants 2 and 3. They contended that the debt was incurred by their father for illegal and immoral purposes and that their share of the mortgaged property was not responsible for the debt. The first Court found that the appellant's defence was unfounded and gave a decree for the amount sued for against the properties mortgaged. From that decree the present appellants filed an appeal to the lower Court and paid court-fees on the value of their two-thirds share of the mortgaged property valuing it on the footing of ten times the assessment. On objection taken, the lower Court on 1st September 1928 held that this fee was insufficient and made an order as stated at the beginning of this judgment and gave three weeks' time to the appellants to pay the deficient amount. The appellants asked for time to pay the amount on four successive occasions and were granted time, in all about two and a half months. Finally the appellants having neither stated what the market value of the two-thirds share of the mortgaged property was nor paid the deficient court-fee on that amount, the appeal was rejected.
3. In their appeal against this rejection it is contended that the court-fees in the lower Court were properly calculated upon the value of the property taken at ten times the assessment. The provision for levying court-fees in appeals is Article 1, Schedule 1, Court-fees Act, according to which on a memorandum of appeal ad valorem court-fee ought to be paid on the amount or value of the subject-matter in dispute. It is not denied, and cannot be disputed, that in a suit on a mortgage which is governed by Section 7, Clause (1), Court-fees Act, the amount or value of the subject-matter in dispute is the sum which is claimed by the plaintiff. Therefore the subject matter in dispute in the appellant's appeal to the lower Court was the liability of their property for the mortgage. The value of this subject-matter must be either the whole mortgage debt or the value of the property, whichever is less. So much is admitted. The appellants contended that the value of their property was less than the mortgage debt. If so, the question is what is the method of valuing the property for the purpose of the appeal? The appellant's argument is that the method of valuation to be adopted is the method mentioned in Section 7, Clause (v), which is mainly based on the annual revenue to Government in cases of revenue-paying lands such as the present.
4. The obvious objection to that argument is that that is a method of valuation fixed for suits for possession of land. The same method has now bean, by the amendment of the Court-fees Act by the Madras legislature, made applicable to suits under Section 7 (iv) (c), that is, declaratory suits where the relief sought is with reference to immovable property and the same method of valuation has been, by a decision of a Bench of this Court in Venkatanarasimha Raju v. Chandrayya AIRl927Mad.825, extended to cases falling within Section 7 (iv) (a) recently added by the Madras Act above mentioned. The appellants' argument is that, wherever for the purpose of court-fees the value of land has to be ascertained and court-fees paid thereupon this method should be adopted. I can find no basis for this in the Act itself or in any decisions that are binding upon me. The appellants relied first upon the decision in Venkatanarasimha Raju v. Chandayya AIRl927Mad.825 already referred to but that has no application to this case because that was a case where a suit had been brought for setting aside a decree a case which strictly falls within Section 7, Clause (iv) (a), and all that that decision can be held to mean is that the value of the property in that clause must be calculated on the same basis as under Section 7, Cl (5). Reference was also made to a decision of Krishnan, J., reported in In Re: Ganapathi Butchi Seethayamma : AIR1925Mad323 . That again is not applicable because the appeal arose from a suit for possession of land and the decision was that in such a case the value of the subject matter in Schedule 1, Article 1, means the same thing as the value of the subject matter as set out in the Sub-clauses of Clause (v), Section 7. The other decision cited Rup Narain v. Bishwa Nath Singh A.I.R. 1922 All.358, is also not in point. That was an appeal from a suit brought by a Hindu coparcener for possession of property alienated by other co-parceners and in that case it was held that the suit should be valued under Section 7 (v) (a), or (b) and as the plaintiff had asked also for a declaration for the invalidity of the alienation, he must pay fee for that relief also in the first Court. There are a number of other decisions of this Court which have a bearing against the appellant's contention.
5. In Krishnamachariar v. Srinivasa Iyengar 4 Mad.339, on the question of jurisdiction, the valuation for which is in most respects the same as that for court-fees it was held that the subject matter of a suit to establish the validity of a charge upon property is, when the property is in excess of the charge, the amount of the charge; when the charge is in excess of the property, the value of the property. In Venkappa v. Narasimha 10 Mad.187, in a suit on a mortgage bond a decree was passed for the principal and interest and, in default, for sale; some of the defendants who apparently had not executed the mortgage appealed; it was held that the proper stamp to be paid on the appeal was on the value of the debt not exceeding the value of the property. In Ramakrishna Reddi v. Kotta Koto, Reddi 30 Mad.96, a case very like the present, the appellant paid court-fees on the market value of the property, and although the particular question whether the value was to be calculated upon ten times the assessment or the market value was not precisely raised, it seems to have been accepted on all hands to be the proper way of valuing the property. I am of opinion that the lower Court's opinion as to the proper court-fee was correct. It is now more than two years since the order of the lower Court was made and the appellants are even now not in a position to state what would be the market value of the property and the court-fee payable thereon. They no doubt said in one of the various applications for time that they would have to pay about Rs. 200 but that was only to obtain an extension of time and was not intended to be in any manner correct. I am myself therefore unable to give any further time for payment of the deficient fee and the only order therefore possible is to dismiss the second appeal and with costs.