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K. Sundaramoorthy Mudaliar Vs. Manickammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1964)1MLJ152
AppellantK. Sundaramoorthy Mudaliar
RespondentManickammal and anr.
Excerpt:
- .....is liable to pay court-fee under section 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 under section 25(d) of the act for a mere declaration that the equitable mortgage is not binding on him.5. 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 a.i.r. 1956 mad. 179 in which ramaswami, j., held that a party can always pay the court-fee under section 25(d) if he is not a party to the document. here the petitioner is not a party to the document created by the.....
Judgment:
ORDER

T. Venkatadri, J.

1. 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.

2. 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.

3. 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 under Section 25(d) of the Court-fees Act, whereas the Office insisted that it should be under Section 40 of the Act.

4. The question now is whether the petitioner is liable to pay Court-fee under Section 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 under Section 25(d) of the Act for a mere declaration that the equitable mortgage is not binding on him.

5. 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 A.I.R. 1956 Mad. 179 in which Ramaswami, J., held that a party can always pay the Court-fee under Section 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 under Section 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 under Section 25(d).

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


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