JUDGMENT Mukerji, J.
1. This is the plaintiff's appeal and is directed against an order rejecting his plaint. The suit, out of which this appeal has arisen, was instituted to obtain a declaration that the entire family property in the hands of the plaintiff, as the head of a joint family belonged equally to the plaintiff and the male defendant, defendant 1, and that certain documents executed by certain deceased members of the family did not affect the jointness of the family.
2. When the suit was filed, the Munsarim reported that the relief called for payment of an additional court-fee of Rs. 10, as, in the opinion of the Munsarim, there were two declarations involved in the relief. Thereupon the plaintiff got the relief amended, and the Court decided that the court-fee paid, namely, Rs. 10, was sufficient.
3. Defendant 1 in his written statement, filed on 17th July 1928, took the plea that the court-fee paid was insufficient. He did not ask that the question of court-fee should be tried as a preliminary issue. Before any issues could be framed, in the case, the Munsarim made a second report on 4th September 1919 and stated that in view of a decision contained in Arunachalam Chetty v. Rangasamy Pillai [1915] 38 Mad. 922 he was of opinion that the plaintiff ought to pay an additional court-fee of Rs. 1,415 being the ad valorem court-fee payable on the value of the suit fixed for the purposes of jurisdiction.
4. The plaintiff contended before the Court below that the court-fee was sufficient, but this contention was rejected, and^ time was given to the plaintiff to make good the deficiency. As the plaintiff failed to make good the deficiency, the plaint was rejected, as already stated by us.
5. The learned Counsel for the appellant argued that he never asked for any consequential relief either openly or impliedly, and tint the Madras case quoted by the Munsarim was not applicable. He also relied on a decision of this Court, namely, Radha Krishna v. Ram Narain A.I.R. 38 All. 369, where it was hold that for the purpose of determination of the court-fee the actual relief asked for should be looked into, and it was entirely beside the consideration of the Court whether the suit was likely or not to fail, because the plaint did not ask for a consequential relief.
6. We are entirely agreed with the decision of our Court, and we are further of opinion that the Madras decision has no application to the facts of this case. In that case an injunction had been asked for and that was certainly in the nature of a consequential relief.
7. Mr. S.P. Sinha, learned Counsel appearing for respondent 1, did not resist the appeal and said that the responsibility for the costs of the appeal should not be laid on his client. He further stated that the plea that there was a deficiency of court-fee had been taken only as a matter of form, but it was never pressed in the Court below. In this, he seems to be right, but the plaintiff's costs cannot be entirely thrown away, and we think he ought to get them in case of his success in the suit, although not as a result of his success in this appeal.
8. Holding as we do that the plaint was sufficiently stamped, we set aside the order of the Court below and send back the case to it for trial on the merits. Costs here and hitherto will abide the result.