Judgment :- 1. The unsuccessful plaintiff in O.S. No. 39 of 1975 has come up by way of this appeal. The said suit was filed as O.P. No. 21 of 1975 in forma pauperis for declaration and injunction on the following plaint averments. 2. The suit B Schedule property is a house. That belongs to the plaintiff She is in occupation of a portion of the said house while the other portions have been leased out in favour of the tenants. She has mortgaged the property to one Murugesa Asari and under that mortgage she borrowed a sum of Rs. 1,200. The defendant is closely related to her. He was helping her in all her affairs. In the middle of December, 1972, the plaintiff was in need of further funds. The defendant volunteered stating that be would advance further sum required by the plaintiff He further stated that he would discharge the subsisting mortgage in favour of Murugesa Asari and take in his name a fresh mortgage for the amount advanced by him and the amount paid for discharging the earlier mortgage. He further stated that he would collect rent from the tenants and adjust the same towards the mortgage debt. Pursuant to this agreement, the plaintiff executed a document on 1st January, 1973. As per the understanding, at the time of registration she was paid a sum of Rs. 1,000. She was all along under the impression that the document dated 1st January, 1973 was only a mortgage for a sum of Rs. 2,500 consisting of Rs. 1,500 to be paid in discharge of the earlier mortgage and a sum of Rs. 1,000 to be paid to her in cash at the time of registration. Notwithstanding the execution of the document, the plaintiff continued to live in the portion in which she was living hitherto. A year ago the plaintiff received a notice from an advocate under Ex. A3. She was not made aware of the contentions of the notice by the defendant to whom also the lawyers notice was intended. He represented that he would make arrangements to send a suitable reply. The plaintiff relied solely on the defendant and was not aware as to what reply was sent. Only in April, 1974 the plaintiff became aware of the fraud played on her by the defendant. He represented that he would make arrangements to send a suitable reply. The plaintiff relied solely on the defendant and was not aware as to what reply was sent. Only in April, 1974 the plaintiff became aware of the fraud played on her by the defendant. It was not known to her that she had actually executed a sale deed instead of a mortgage as she desired. Thereafter, a registration copy of the sale deed dated 1st January, 1973 was obtained. She sent a notice to the defendant calling upon him to cancel the deed and accept the amount advanced by him. The value of the property was easily worth about Rs. 15.000 and therefore the sale consideration recited in that document, namely, Rs. 6,000 is extremely low. In as much as the defendant did not comply with the demand made on him, the present suit had come to be filed to cancel the sale deed dated 1st January, 1973 and for injunction to restrain the defendant from interfering with the plaintiffs enjoyment of one room in her occupation. 3. In the written statement of the defendant, inter alia, it was stated that apart from the due to Murugesa Asari, the plaintiff had borrowed a sum of Rs. 1,000 from one Mariappan, the brother of the defendant on a promissory note on 5th August, 1971. Likewise she bad borrowed various sums from the defendant on various occasions totalling in all to Rs. 1,800. The plaintiff wanted to discharge these debts and therefore the required money since after the discharge of the debts, she desired to settle down in Madras. It was under those circumstances she approached the defendant, pressing for the acceptance of the property for Rs. 6,000. Even though the property was not even worth Rs. 5,000 at that time, because of the plaintiffs insistence, the defendant agreed to purchase the property. Out of this amount, a sum of Rs. 1,500 was paid to Murugesa, a sum of Rs. 1,209 to Mariappa and Rs. 1,800 was adjusted towards the hand loan borrowed by the plaintiff from the defendant. Out of the balance, Rs. 500 was paid to the plaintiff on the date of the execution of the sale deed and the balance of Rs. 1,000 was paid to her at the time of registration. 1,209 to Mariappa and Rs. 1,800 was adjusted towards the hand loan borrowed by the plaintiff from the defendant. Out of the balance, Rs. 500 was paid to the plaintiff on the date of the execution of the sale deed and the balance of Rs. 1,000 was paid to her at the time of registration. The plaintiff was fully aware as to what she was doing in that she was executing a sale deed. She had conducted several litigations. There was no fraud or misrepresentation as alleged by the plaintiff. The sale dated 1st January, 1973 is not liable to be set aside on any ground. After the sale the municipal registry as well as the electric supply connection have been transferred in the name of the defendant. Recently the plaintiff trespassed into the house and forcibly occupied a room therein. Thus, the suit for the cancellation of the sale deed is liable to be dismissed. 4. On these pleadings, the following issues were set down for trial: 1. Whether the document dated 1st January, 1973 was got up from the plaintiff by fraud and misrepresentation? 2. Is the document liable to be set aside? 3. Is the plaintiff entitled to injunction asked for? 5. The learned Subordinate Judge, on a consideration of the oral and documentary evidence, on issue No. 1 came to the conclusion that the plaintiff had failed to establish that Ex. X1, namely, the sale deed dated 1st January, 1973 had been obtained from her by exercise of fraud or misrepresentation. Consequently, on issue No. 2 he held that the transaction was not liable to be set aside. Therefore he held under issue No. 3 that the plaintiff was not entitled to the reliefs prayed for. Accordingly, he dismissed the suit. Hence the appeal. 6. Mr. R. Gandhi, learned counsel for the appellant would urge that the court below has thoroughly misunderstood the case of the appellant. It was her definite case that a representation was made to her by the defendant who was helping her in all her affairs because he happened to be her close relation, that she was to execute a mortgage for a sum of Rs. 2,500 and that on such representation she executed a document on 1st January, 1973 which ultimately turned out to be a sale. 2,500 and that on such representation she executed a document on 1st January, 1973 which ultimately turned out to be a sale. This is a clear case to which the plea of non est factum should be applied. From this point of view, it is immaterial whether there was fraud or cot. The defendant took advantage of the helplessness of the plaintiff in that she had no male help and therefore he had schemed to knock off this property from her. To say that because there were prior litigations against her or by her she was worldly-wise and therefore she knew the character and the contents of the document is wrong. Even with regard to the payment of the consideration for the sale deed there are very many circumstances which would belie that there were debts other than the one which is admitted, namely, the mortgage in favour of Murugesa, Ex. X2 dated 21st August, 1961. The promissory note was Ex. X13 dated 5th August, 1971 for a sum of Rs. 1,000. The promisee is none other than the brother of the defendant himself. First of all, the promissory note itself was denied. Secondly, there was no demand by the promisee. Thirdly, the interest that was payable in respect of the said promissory note was not more than Rs. 75 as on 1st January, 1973 assuming that the promissory note was true. But that is paid to Mariappa, the promisee in a sum of Rs. 1,200. As regards the hand loan of Rs. 1,800 it has been clearly proved that no evidence has been let in for advancing of these hand-loans. Not a scrap of paper is produced excepting the ipse dixit of the defendant. Only a sum of Rs. 1,000 was paid at the time of the registration of the document. More than above all these, the plaintiff continued to reside in the portion in which she was living and the contrary case put forth by the defendant that soon-after the sale under Ex. X-1 the plaintiff shifted to Madras and later she trespassed into a room has been disbelieved by the Court below. Therefore, her continuing to live as found by the lower court itself is a strong circumstance which cannot be brushed aside. This aspect of the matter has not been properly dealt with by the learned Subordinate Judge. X-1 the plaintiff shifted to Madras and later she trespassed into a room has been disbelieved by the Court below. Therefore, her continuing to live as found by the lower court itself is a strong circumstance which cannot be brushed aside. This aspect of the matter has not been properly dealt with by the learned Subordinate Judge. In support of the plea of non est factum, the learned counsel relies on the decision in Gallie v. Lee 1. 7. Mr. M. Srinivasan, learned counsel for the respondent, would state that in view of the fact that the appellant herself caused to issue Ex. B1 notice and she had conducted proceedings under Rent Control Act and filed criminal complaint as evidenced by Ex. B2, it is impossible to hold that she is an ignorant illiterate person not knowing the consequences of the deed. The evidence of D.W. 4 against whom nothing could be said is clear enough to show that she was aware of the nature of transaction. Then again D.W. 1 the Sub-Registrar says that the appellant was asked whether she had executed a sale deed to which she answered in the affirmative. Therefore, on more than one occasion she was put on notice about the nature of the transaction. If really the agreement as pleaded by her was that the rents were to be collected towards the amount advanced under the so-called mortgage in favour of the defendant, there was no occasion for her to demand rents from the tenants Then again as to why she remained silent for more than a year after obtaining copy of the sale deed through the help of a next door neighbour is not explained. Besides, the next door neighbour who helped her in obtaining the registration copy of the sale deed is also not examined. Merely because the defendant came forward with the plea that she trespassed into the property and that has been disbelieved, it does not mean that the plea of non est factum has come to be established. If the plaintiff-appellant was negligent in signing the deed, certainly she has to pay for her negligence. She must prove that she was not aware of the transaction or that her mind did not go with the thumb impression she affixed in the document. It has not been proved. If the plaintiff-appellant was negligent in signing the deed, certainly she has to pay for her negligence. She must prove that she was not aware of the transaction or that her mind did not go with the thumb impression she affixed in the document. It has not been proved. He also refers to ceitain passages in Gallie v. Lee 1 and then says that the plaintiff has not proved the plea of non est factum judged on the standard laid down in that case. 8. Having regard to the respective submissions, the one and only question that arises for consideration in this appeal is whether the appellant has succeeded in establishing the plea of non est factum . The sale deed Ex. X1 is dated 1st January, 1973. That is for a sum of Rs. 6,000. The sale consideration is made up of (i) towards the promissory note (Ex. X13) dated 5th August, 1971 in favour of Mariappa Rs. 1,200; (ii) towards the mortgage in favour of Murugesa Asari (D.W. 4), dated 21st August, 1967 (Ex. X2 Rs. 1,500; (iii) towards the repair of the house, household and medical expenses borrowed as hand-loan on various occasions by the plaintiff from the defendant Rs. 1,800; (iv) cash paid to the plaintiff on the execution of the sale Rs. 500, and (v) another sum of Rs. 1,000 paid at the time of registration. This sale deed was registered on 25th January 1973. The sale deed was written by Sundaram Pillai (D.W. 2). It was the same person who wrote Ex. X2 as well as Ex. X13. The attestors to the sale deed are (i) Arumugam, and (ii) A.K. Natarajan. It is the same Arumugam who is the attestor to the promissory note Ex. X13. 9. The case of the plaintiff as spoken to by her as P.W. 1 is that the defendant is her husbands sisters son and that for the past 20 years he was helping her with regard to the collection of tents, payment of municipal tax, etc. At no point of time she agreed to execute a sale deed in favour of the defendant. All that was agreed to was that since a sum of Rs. 1,500 was due on a mortgage in favour of Murugesa Asari and as she required another sum of Rs. 1,000, she was to execute a mortgage for Rs. At no point of time she agreed to execute a sale deed in favour of the defendant. All that was agreed to was that since a sum of Rs. 1,500 was due on a mortgage in favour of Murugesa Asari and as she required another sum of Rs. 1,000, she was to execute a mortgage for Rs. 2,500, in favour of the defendant. 10. In her chief examination she stoutly denies the hand-loan said to have been advanced by the defendant to her. She also denies the execution of the promissory note Ex. X13 in favour of Mariappa. However, she candidly admits receipt of the sum of Rs. 1,000 from the defendant before the Sub-Registrar. According to her, even after the execution of the document of mortgage she was to continue to reside in the suit house and that the defendant would collect the rents and adjust the same towards the mortgage of Rs. 2,500 executed in his favour. 11. Nothing serious has been elicited in cross-examination to shake the credibility of her evidence or to bring home the fact that she was aware as to what she was executing. On the contrary, she is positive that the Sub-Registrar did not ask for whether she executed a sale deed. All that was asked of her by the Sub-Registrar (D.W. 1) was whether she had received a sum of Rs. 1.000. It should be noted, as already observed, she candidly admitted the receipt of Rs. 1,000. 12. It is as against this evidence, the evidence of the other witnesses examined on the side of the defendant-respondent requires to be analysed. DW. 1 is the Sub-Registrar. He, though in his examination in chief, would state that he asked the plaintiff whether she had executed the sale deed and that she bad admitted it, in cross-examination he would state that he did not ask about the receipt of Rs. 1,000 by her. This was because he himself had received Rs. 1,000 and handed it over to her. D.W. 2 is the person who wrote Ex. X2, X13 and X1. He would go to the extent of saying that one week before the execution of the sale deed the defendant had informed him about the proposal for the sale while D.W. 3 another attestor would state that it was only at the instance of D.W. 2 he attested the document Ex. X1. X2, X13 and X1. He would go to the extent of saying that one week before the execution of the sale deed the defendant had informed him about the proposal for the sale while D.W. 3 another attestor would state that it was only at the instance of D.W. 2 he attested the document Ex. X1. D.W. 4 is a mortgagee. The entire reading of his evidence discloses that he does not want to utter falsehood on either side. He would rather remain non-committal. In his examination in chief he would say that even before the execution of Ex. X1 deed, his mortgage was settled and therefore he went away, He was not present at the time of execution of Ex. X-1. In cross-examination he was obliged to admit that the defendant newer informed him earlier that he was going to buy the property. D.W. 5 is none other than the brother of the defendant. He is the person who is alleged to have advanced Rs. 1,000 on the promissory note Ex. X-13. He admits in cross examination that he was sot aware of the prior mortgage in favour of Murugesa Asari. D.W. 6 is another attestor by name Arumugam who attested strangely all the documents, namely, fix. X1, X13 and X3. D.W. 7 is none other than the defendant himself who, as observed by the learned Subordinate Judge, goes to the extent of saying that the plaintiff has trespassed into the property recently. He admits in cross-examination that there are no documents to prove that he was lending loans to the plaintiff. 13. It is somewhat surprising that he goes to the extent of saying that he never went to the house of D.W. 2 prior to the execution of Ex. X1 and that he never said anything about sale. He also denies that he was the person who introduced D.W. 2 to the plaintiff. My analysis of the evidence let in on the side of the respondent establishes that there is nothing positive to prove that the plaintiff was aware of the real nature of transaction. The learned Subordinate Judge states that the evidence of the Sub-Registrar as D.W. 1 has to be accepted. I am unable to subscribe to this view. My analysis of the evidence let in on the side of the respondent establishes that there is nothing positive to prove that the plaintiff was aware of the real nature of transaction. The learned Subordinate Judge states that the evidence of the Sub-Registrar as D.W. 1 has to be accepted. I am unable to subscribe to this view. In the nature of transactions that take place in a Sub Registrars Office it is impossible to believe that D.W. 1 had all the time and the patience to explain to the plaintiff the nature of the transaction and that she, having understood that she was executing a sale, accepted Rs. 1,000. To my mind, it is P.W. 1 who speaks the truth when she states that D.W. 1 merely asked her whether she has been paid a sum of Rs. 1,000 which she answered in the affirmative. The only other evidence on which one could rely on will be D.W. 4. His evidence is non committal. Therefore, in the absence of any evidence to contradict the stand of the plaintiff that she was not aware of what she was doing, I am of the view that the principle of non est factum will have to be applied in this case. The law on this subject can be gathered from the following passage occurring in Cheshire and Fifoots Law of Contract, Tenth Edition at page 229. The principle simply stated boils down to this: “scriptum predictum non est factum suum”. The following passage occurs at pages 229 and 230:— “In the course of its development, this plea of non est factum was made available to a defendant who could not read whether lowing to illiteracy or blindness, so as to enable him to escape liability upon proof that the written terms of deed did not correspond with its effect as explained to him before he put his seal to it. In 1582, for instance, in Thorough-Goods Case: (1582 2 Co. Rep 9a.) William Chicken, being in arrears with his rent tendered to his landlord, Thoroughgood, a deed by which he was relieved from, all demands whatsoever which Thoroughgood had against him. Thus the dispensation on its face comprised not only arrears of rent, but also the right to recover the land. Rep 9a.) William Chicken, being in arrears with his rent tendered to his landlord, Thoroughgood, a deed by which he was relieved from, all demands whatsoever which Thoroughgood had against him. Thus the dispensation on its face comprised not only arrears of rent, but also the right to recover the land. Thoroughgood was illiterate, but a by stander, affecting to be helpful, seized the deed and said: ‘The effect of it is this, that you do release to William Chicken all the arrears of rent that he doth owe you and no otherwise, and thus you shall have your land back again. After replying. ‘If it be no otherwise, I am Content; Thoroughgood sealed the deed Chicken subsequently sold the land to an innocent purchaser. “Thoroughgoodsued in trespass quare clausum fregit and recovered his land. It was said by the Court of Common pleas to be ‘the usual course of pleading’ that the defendant was a layman and without learning, and that he had been deceived by a distorted recital of the contents of the deed. “The plea, as its language showed, was confined to cases where the defendant was sued on a deed, and at a time when illiteracy was frequent enough to demand special protection it was unexceptionable. It might have been wiser, therefore, to have discarded it altogether when society became more sophisticated; but in the course of the nineteenth century the courts extended it with little reflection and without warrant to cases of simple contracts, and abandoned the requirement of illiteracy. The justification for these extensions was now said to be want of consent. On this view the contract was a complete nullity. Thus in 1869, in Foster v. Mackinnon, 1 the following passage occurs in the judgment of a strong court delivered by Byles, J.: “It seems plain on principle and on authority that if a blind man, or a man who cannot read or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended (Ibid at 711)”. At page 233 again it is stated as under:— “The final question is whether the plea of non est factum will be withheld from a party if the mistake was do to his own negligence. In Foster v. Mackinnon, 1 the Court of Common Pleas stated in unambiguous terms that a signatory is barred by his negligence from pleading his mistake against an innocent third party who has acted to his loss upon the faith of the document. The action before the court was against the defendant, described ‘a gentleman far advanced in years’ as indorser of a bill of exchange. It appeared that one Callow took the bill to him and asked him to sign it, telling him that it was a guarantee. The defendant, in the belief that he was signing a guarantee similar to one which he had given before, signed the bill on the back. He looked only at the back of the paper, but it was in the ordinary shape of a bill of exchange, and it bore a stamp the impress of which was visible through the paper. The bill was later negotiated to the plaintiff who took it without notice of the fraud. “The action was first tried by the Lord Chief Justice, who told the jury that if the defendant signed the paper without knowing that it was a bill and under the belief that it his a guarantee, and if he was not guilty of any negligence in so signing the paper, then he was entitled to their verdict. The jury found that the defendants had not been negligent and returned a verdict in his favour. On appeal, the Court of Common Pleas endorsed the direction given by the trial judge, but ordered a fresh trial on the ground that the issue of negligence had not been fully and satisfactorily considered. In the result, therefore, the right of the defendant to sustain theplea of non est factum was to depend upon whether he was eventually found to have been guilty of negligence”. 14. In the result, therefore, the right of the defendant to sustain theplea of non est factum was to depend upon whether he was eventually found to have been guilty of negligence”. 14. In this particular case, the theory of negligence can easily be ruled out. As to why it is so, I will explain a little later. The one case which can be usefully referred to and which is relied on by both sides is Gallie v. Lee. That was a case in which a 78 year old widow who had a leasehold interest in a house, gave the deeds to her trusted nephew. She intended to make a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L., her nephews business associate was to collaborate with the nephew in raising money on the house. “In June, 1962, L. asked her to sign a document, She had broken her spectacles and could not read it. She asked what it was and L. told her that it was a deed of gift of the house to her nephew. She executed it in that belief, and the nephew witnessed the execution, it being part of his arrangements with L. that L. should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L. for 3,000. The 3,000 was never paid nor intended to be paid to her. L. having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for 2,000 to a building society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house. G., at the nephews instigation, began an action, in which she pleaded non est factum, against L. and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The building society sought to obtain possession of the house. G., at the nephews instigation, began an action, in which she pleaded non est factum, against L. and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The Judge found that G. did not read the document, that L. represented it to her as a deed of gift to the nephew; that she executed it in that belief; and that a sale or gift to L. was something which she did note and would not ever have contemplated; and he held that the plea of non est factum was established and granted the declaration asked for.” The Court of Appeal reversed the decision. Certain passages occurring in the judgment are vital to the case on hand. At page 1016 Lord Reid states thus: “The plea cannot be available to anyone who Was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on to be circumstances of each case”. This passage relied on by Mr. Srinivasan, learned counsel for the respondent does not help him in any manner. On the contrary, the following observations of Lord Reid are important: “We find in many of the authorities statements that a mans deed is not his deed if his mind does not go with his pen”. No doubt, Lord Reid stated that that is far too wide. But that observation that “that is far too wide” will have to be applied only to the facts of the case before the House of Lords. No doubt, Lord Reid stated that that is far too wide. But that observation that “that is far too wide” will have to be applied only to the facts of the case before the House of Lords. Again at page 1021, Viscount Dilhorne observed as follows:— “What are the matters which have to be established for the plea to succeed? First, in my opinion it must be shown that the document signed was radically different in character from that which the signer thought it was”. Lord Wilberforce at page 1027 holds as follows: “As to persons who are illiterate, or blind, or lacking in understanding, the law is in a dilemma. On the one hand, the law is traditionally, and rightly, ready to relieve them against hardship and imposition. On the other hand, regard has to be paid to the position of innocent third parties who cannot be expected, and often would have no means, to know the condition or status of to be signer. I do not think that a defined solution can be provided for all cases. The law ought, in my opinion to give relief if satisfied that consent was truly lacking but will require of signers even in this class that they act responsibly and carefully according to their circumstances in putting their signature to legal documents”. These observations of Lord Wilberforce squarely apply to the facts of this case. The plaintiff-appellant is an illiterate. She bas merely affixed her thumb impression. Though an argument was raised on behalf of the respondent that the appellant might be in a position to read but not write, that is made only at tbe bar and not supported by evidence. She has no male help. The defendant is a trusted relation who has been Acting on her behalf with regard to be collection of rents and payment of municipal taxes as spoken to by her. 15. (i) This is the only house belonging to her and therefore she would not have thought it prudent to sell away that only house to deprive herself of even her right of residence. (ii) The plea of the respondent that she wanted to dispose of the property and settle in Madras bas been disbelieved by the learned Subordinate Judge. Equally his theory of trespass. (ii) The plea of the respondent that she wanted to dispose of the property and settle in Madras bas been disbelieved by the learned Subordinate Judge. Equally his theory of trespass. (iii) As spoken to by her she continued to be in occupation of that one room throughout even after the execution of Ex. X1. (iv) There was no demand by the mortgagee. (v) The payment of Rs. 1,200 on the promissory note debt Ex. X-13 cannot be believed at all because what was required to be paid even assuming there was a borrowing of Rs. 1,000 under that promissory note, together with interest, would only amount to Rs. 1,075 why, therefore, Rs. 1,200 was stated to have been paid has not been explained. The promisee is none other than the defendants brother. (vi) There is no evidence with regard to I the so-called hand-loans advanced by the defendant. (vii) It is rather curious that all these documents were attested by the same set of attestors in that Arumugam happens to be the attestor in respect of documents Exhibits X2, X13 X1. All these circumstances taken together with the evidence of P.W. 1 clearly prove her case. 16. The learned Subordinte Judge is wrong in buttressing his reasoning that the sale was a genuine transaction and there was no fraud or misrepresentation in it by relying on the transfer of name in the municipal Registry and the Electricity Service Connection. They are immaterial for deciding whether the mind of P.W. 1 went along with the thumb impression to Ex. X-1. Therefore, I have not the slightest hesitation to conclude that the plea of non est factum has been duly established in this case. Accordingly the appeal will stand allowed with costs. There will be a declaration as prayed for. However, I make it clear that if the defendant seeks to enforce his right as a mortgagee, that is different matter about which I am not called upon to render a finding. The court fee due to the State shall be paid by the appellant.