Article 7 of Schedule I of the Bombay Court-fees Act, 1959, applies to suits where the substantive relief claimed is capable of being valued in terms of monetary gain or prevention of monetary loss.

DIGHE, J.:- The point for determination in this Letters Patent Appeal is regarding the provisions of the Bombay Court-fees Act, 1959 under which the plaint in the suit should be charged.

2. The trial Judge as well as the Appellate Judge have come to the conclusion that the suit was falling under Article 7 of the First Schedule of the Court-fees Act, 1959, and that valuation was more than Rs. 25,000/- and as such the City Civil Court had no jurisdiction.

3. The dispute in this case related to the property in Kurla admittedly belonging to the two brothers Allarkhan Maulabax and Kallu Maulabax. Kallu died some 13 years before the suit leaving behind his widow Aishabai, the 2nd defendant. Plaintiff No. 2 Sheikh Abdul Kader happens to be her son. He has brothers and sisters. One of his sisters was married to Mohamed Yunus Allarkhan, the 3rd defendant. Plaintiff No. 1 is a minor, born of Yunus and Hussainbi, the 4th defendant. Plaintiff No. 1 claims under a will of Allarkhan to be his sole heir. There is no dispute that in the absence of such a will, his father and mother the third and fourth defendants will be preferential heirs to Allarkhan Maulabux.

4. It appears that on 7th July 1971, the parents of plaintiff No. 1 and Aishabai executed a mortgage of the suit property in favour of the 1st defendant. The two plaintiffs say that they were unaware of this mortgage transaction until July 1973 when the 1st defendant came on the property and was interested in showing it to others. On enquiry they learnt that the property was put up for auction, allegedly under the mortgage of 7th July 1971. Plaintiff No. 2 who is his guardian and maternal uncle made inquiries and learnt of the execution of mortgage by defendants Nos. 2, 3 and 4. They had, however, no copy of that mortgage-deed of 7th July 1971 or of any prior document. He also understood from those defendants that no amount was paid to any of them under the alleged deed of mortgage, and they had no need to borrow any monies at the time of the execution of the document. They had no legal advice and they were told by the 1st defendant that the document was a mere renewal of an earlier mortgage after adding interest and a loan of Rs. 25,000/-. This renewal was done because Allarkhan died and a fresh document was considered necessary by the mortgagee.

5. According to the plaintiffs, the document of 7th July 1971 is illegal for want of title in the executants and is also without any consideration. The 1st defendant had no right, title and interest in the properties mentioned therein. He had, therefore, no right to exercise or enforce the mortgage or any rights reserved thereunder. The plaintiffs, therefore, prayed for a declaration that-

"deed of mortgage dated 7th July 1971 or any such prior document executed by defendants Nos. 2, 3 and 4 in favour of defendant No. 1 are illegal, void and unenforceable and of no legal effect and not binding upon the plaintiffs, and that the defendant does not derive any right, title or interest in the properties viz ……"

It may be observed at the outset that the prayer clause vaguely and generally refers 'to any such prior document', though relief in terms of deed is also asked. In the recitals in the plaint there is a reference to the renewal of earlier mortgage. Unfortunately when the trial proceeded the documents or their copies did not come to be tendered in the Courts. Copies of two mortgage documents, however, were produced in this Court. The indenture of the mortgage dated 7th July 1971 shows that it is executed by Aishabi widow of Kallu Moulabux, the 2nd defendant and the parents of the 1st plaintiff, defendants Nos. 3 and 4 in favour of the 1st defendant for a consideration of Rs. 18,000/-. The recitals show that that was a debt in addition to the debt of the earlier mortgage amounting to Rs. 12,000/- under the document dated 30th December 1968. This would, therefore, be in effect a second mortgage of the property.

6. Copy of the deed dated 30th