Venkataramana Rao, J.
1. The question involved in this reference relates to the amount of court. fee payable on the memorandum of appeal. The appellant is defendant 11 in a suit to enforce a mortgage executed on 7th August 1920 in favour of the plaintiff's assignor by defendant 1. Defendant 11 was impleaded as a party to the suit on the ground that he is in possession of the suit property as an assignee from a purchaser at a sale in execution of a mortgage decree obtained by one Nagappa Chetty in respect of a mortgage dated 7th August 1915 executed by defendant 3 in favour of Nagappa Chetti's father Venkatachalam Chetti. One of the defences urged by defendant 11 was that he is entitled to set up the mortgage of 1915 as a shield being a mortgage prior in date to the mortgage sued on and that the priority claimed by him should be recognized. One of the issues raised in the case was 'whether defendant 11 is entitled to the priority claimed and is plaintiff obliged to redeem him'. There were other subsidiary questions in the case and one of them was whether the suit mortgage executed by defendant 1 is binding on all the members of the family, that is defendants 2 to 10.
2. A similar question also arose in respect of the plaintiff's mortgage. The learned District Munsif found that both the mortgages were binding on all the members of the family. He also found that defendant 11 would be entitled to priority to the extent of Rs. 1,784 in respect of the mortgage set up by him. He accordingly ordered sale of the property free of all encumbrances and directed that the sale proceeds should be applied in the manner stated by him in para. 4 of his decree, namely
first of all in payment to defendant 11 of a sum of Rs. 1,784 in discharge of his prior rights under the mortgage of 1915, and secondly the balance, if any, shall be paid to the plaintiff.
3. This was modified by the learned Sub-ordinate Judge in appeal. The learned Subordinate Judge recognized priority only in respect of defendant 3's share and held that neither previous consent nor subsequent ratification of the mortgage by defendants 1 and 2 was proved and that it was not executed for a valid and binding joint family purpose. In the view he held, he passed the decree thus:
In the result the decree passed by the learned District Munsif is set aside and a mortgage decree in plaintiff's favour for the amount claimed with costs and subsequent interest is passed. The two thirds share of defendants 1 and 2 in the suit property will be sold and the sale proceeds credited first towards the plaintiff's claim, the balance, if any, being payable to defendant 11. The one-third interest of defendant 3 in the suit property shall be sold and after first crediting the sale proceeds towards the mortgage Ex. 1, the balance, if any, will be used to discharge the plaintiff's claim.
4. It is against this decree this second appeal has been preferred. The appellants has paid a sum of Rs. 15 for the memorandum of appeal. The question is, is the court-fee paid sufficient? Of course this will depend on what in substance is the relief he claims. On the exact point in this case there is no deci-sion of our High Court; my attention has been invited by the office to two decisions of other High Courts, one of Patna, Premsukh Das v. Shah Gopi Baran AIR 1919 Pat 233, and the other of Allahabad, Moti Begam v. Har Prasad AIR 1918 All 79. Both those decisions seem to take the view that an ad valorem court-fee may have to be paid. During the course of the argument, another decision of the Allahabad High Court has been brought to my notice, namely Kundan Lal v. Dulichand : AIR1932All221 . As the matter is of some importance, I directed notice to the Government Pleader and he argues that the view taken by the Allahabad and Patna High Courts is correct and that in any view the appellant must be directed to pay either on the amount of his claim, or if it exceeds the value of the property, on the amount of the value of the property. Mr. Ramchandra Iyer, who appears for the appellant, contended before me that the relief sought is only in the nature of a declaratory relief and the court-fee paid is sufficient. In the alternative he contends that the relief must be said to be incapable of valuation having regard to the nature of the decree passed by the learned Subordinate Judge and therefore the court-fee paid by him must be held to be sufficient. Under the Civil Procedure Code where a puisne mortgagee files a suit, he is not obliged to redeem a prior mortgage; he can have a sale subject to the prior mortgage; that is, in oases where he admits the prior mortgage; but where he disputes the prior mortgage either on the ground that it does not subsist or on the ground that his mortgage should take precedence over it, he has to seek a declaration that the alleged prior mortgage is not entitled to priority. In such cases, it is clear from the forms of the mortgage decrees framed by the Legislature and found in Appx. D, Sch. 1, Civil P.C., that the Court will have to declare priority which is questioned in the suit. Clause 2 of Form 9 in Appx. D runs thus:
It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant 2 or (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively.
5. Vide also Clause 2 of Form 10. It will thus be seen that in cases where the amount is not disputed and where the liability of the morgaged property is also not disputed and the only question is who is entitled to be paid the sale proceeds, so far as the prior mortgagee who is a defendant in the case is concerned, the only relief that could be got by the puisne mortgagee in the suit brought by him will be a declaratory one. In this case, the order for sale has been-passed at the instance of the puisne mortgagee. The other directions necessarily follow from this order for sale by reason of the prior mortgagee being made a party to the suit. Speaking with reference to the mortgages both prior and subsequent to the mortgage sued on, Mukerji, J. observed thus in Akhilbandhu v. Suradhuni Debya : AIR1934Cal377 :
The decree, which has been or may be passed in the suit, will, no doubt, be a decree to their advantage.... But their position in the appeal must be that, as defendants in the plaintiff's suit, they are entitled to have certain rights of theirs protected in the decree which the plaintiff obtains or has obtained. This being the true view to take of the situation, I am unable to see how the dues on the appellant's mortgage or mortgages can be regarded as the value of the subject-matter in dispute, or how the dispute, such as there is in the appeal, may be valued in terms of such dues.... It should be remembered that it has not been the policy of the law to tax with court-fees, ad valorem every advantage which a party is seeking for in courts.
6. There has already been an order for sale; there has already been a declaration of liability of the suit property in respect of the mortgage set up by defendant 11; the only question is whether he is entitled to any priority. All that he is seeking in appeal is to get rid of the declaration made against him and to have a declaration in his favour. Therefore a relief for declaration would be in my opinion enough and he is entitled to value the relief as one for a declaration and the court-fee therefore paid by him would be sufficient under Article 17-A(1) of Schedule 2, Madras Court-fees Amending Act. I am unable to agree with the view taken both by the Allahabad and Patna High Courts in this matter. In Kundan Lal v. Dulichand : AIR1932All221 , the reason assigned by King, J. is stated thus:
The appellants obviously seek to get the decree of the trial Court modified in their favour so as to get the property sold subject to their mortgage for which they claim priority. I think the substance of the relief sought, and not merely its form, must be considered. Their interest in the property is valued at Rs. 1,600 and this must be the value of the subject matter in dispute in the appeal.
7. The learned Judge fails to notice that where there is already an order for sale, the prior mortgagee in appeal does not seek any fresh order for sale. The order for sale is already passed at the instance of the plaintiff and the substance of the a relief sought by him is only a declaration. Mr. Champakesa Iyengar relied on Ramakrishna Reddi v. K. Kota Reddi (1907) 30 Mad 96, and other cases which followed it. In those cases it will be noticed that either the amount of the decree or the liability of the property was in dispute and in my view they have no application to the facts of this case. Even if I am not correct in the view I have now taken, having regard to the form of the decree in this case it may be stated that the relief is one incapable of valuation. The learned Subordinate Judge has directed that two-thirds share in the property will be sold first and after payment to the plaintiff, defendant 11 will be paid the balance. How much the two-thirds share will fetch and what balance will remain payable to defendant 11 and whether it would satisfy the entire claim or only a portion of the claim it is not possible to ascertain. It may be that the balance will be enough to satisfy defendant 11's claim or may not be enough. He can only be called upon to pay the court-fee on the amount of the deficit which he will get as a result of the Subordinate Judge's decree and which is incapable of ascertainment. I think in this view that the court-fee paid is sufficient.