J.B.MEHTA - (1.) This revision application is against the decision of the Taxing Officer as to the correct court fee payable on a memorandum of appeal filed by the mortgagees against a decree in which it was declared that the mortgages were not binding on the 1/8th share of the plaintiffs.
(2.) The short facts which have given rise to this petition are as under:- 3. The plaintiffs are the heirs of one deceased Liladhar Chhaganlal. The father of the deceased Liladhar was one Chhaganlal Sunderji who had left behind him seven sons and one widow and so the share of the plaintiffs father was 1/8th in the properties left by the said Chhaganlal Sunderji The others brothers of the deceased Liladhar were the original defendants 1 to 6. Those brothers had executed three mortgages Exs. 46 to 48 of different suit properties to secure different amounts. Defendant No. 1 had executed the said mortgages also as a guardian on behalf of the minor plaintiffs. The said mortgages were in favour of the original defendants Nos. 13 14 and 15 respectively who are the present petitioners. The plaintiffs who were the heirs of the said deceased Liladhar had filed a suit for partition against defendants Nos. 1 to 6 and others and they also prayed for a declaration that the said mortgages Exs. 46 to 48 in favour of the present petitioners who were defendants Nos. 13 to 15 were not binding on the plaintiffs 1/8th share in the suit properties. The trial Court gave a declaration that the mortgage deeds Exs. 46 to 48 were not binding on the 1/8th share of the plaintiffs and gave other reliefs. Defendants Nos. 13 to 15 therefore filed the appeal and on the memorandum of appeal a court-fee stamp of Rs. 36 was paid. The matter having been referred to the Taxing Officer he was of the view that Article 5 of Schedule I applied to such a memorandum of appeal in a suit which was one for setting aside the alienation and he accordingly ordered the appellants advocate to state the valuation of 1/8th share of plaintiffs. The petitioners have therefore filed the present Revision Application against the said order.
(3.) In order to determine the correct court-fees payble on this memorandum of appeal in question we must first consider the charging section 5 of the Bombay Court-fees Act 1959 hereinafter referred to as the Act which provides that no document of any of the kinds specified as chargeable in the first or second Schedule annexed to this Act shall be filed exhibited or recorded in any Court of Justice unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document. We must therefore turn to Schedules I and II to find out the fees payable on the present memorandum of appeal. The Taxing Officer has relied on Article 6 of Schedule 5 which deals with a plaint in a suit application or petition including memorandum of appeal to set aside an alienation to which the plaintiff applicant or appellant as the case may be was a party either directly or through a legal guardian other than de facto or ad hoc guardian manager partner or court and the corresponding fee prescribed is on the extent of the value of the alienation to be set aside according to the scale prescribed under Article I.;