JOHN Vs. LILLY LEAN

JUDGEMENT

(1.) THE Taxing Officer has objected to the correctness of the court-fee paid by the appellants. THE objection is placed before the, bench. Defendants 4, 5, 8 and 10 in a suit for partition and redemption are the appellants. THE plaintiff is the owner of 5/6th share in the equity of redemption. THE remaining 1/5th share is with the contesting defendants. As per the mortgage deed, the mortgagor has to pay, in addition to profits, an amount of Rs. 1,200/- per annum as'ubhayabakki'. THE main contest in the suit is that the suit transaction is a kanom kushikanom tenure and not a mortgage. This plea was referred to the concerned Land Tribunal. A finding in favour of the plaintiff and against the contesting defendants was returned by the Tribunal. THE trial Court passed a decree for redemption on payment of proportionate mortgage amount with'ubhayabakki'. THE total sum payable was held to be Rs. 61,373. 90. THE plaintiff had paid court-fee only on a portion of the mortgage amount. THEre was a direction in the decree that the plaintiff should pay deficit court-fee of Rs. 4647/- on the above sum. This was paid by the plaintiff. THE appellants valued the appeal for the purpose of court-fee and jurisdiction as follows:

(2.) THE objection by the Taxing Officer is that the appellants should pay court-fee not only on the proportionate mortgage amount but also on the sum of Rs. 46,465. 60 being the amount decreed to the mortgagee by way of arrears of 'ubhayabakki' THE appellants' case is that no court-fee need be paid on this amount because it is an amount found payable ancillary to the relief of redemption.

(3.) IN Parvathi v. Makkam Amma (AIR. 1951 Madras 187), a full Bench of the Madras High Court was considering the scope of S. 7 (ix) of the central Act, in a suit for redemption of a kanom with arrears of rent. An objection was taken that court-fee was payable on the amount of arrears of rent as well. The Full Bench held: "it follows, therefore, that a suit for redemption of a Malabar Kanom, like any other suit for redemption of a possessory mortgage, can be valued under S. 7 (ix) of the Court Fees Act even though the plaintiff incorporates in his plaint a prayer for the taking of accounts and the payment of arrears of rent due from the kanomdar. The arrears of rent would have to be applied in reduction of the kanom amount and the value of improvements payable to the kanomdar and the plaintiff would be entitled to a decree only for such balance as might be found payable to him on taking the account. " Accordingly, the court set aside the order of the Court below demanding additional court-fee on arrears of rent claimed by the plaintiff. That is a reverse case from the case we have here. Here, instead of the mortgagor claiming arrears of rent, what is decreed in favour of the mortgagee is the arrears of 'ubhayabakki '. No distinction can be made between these two claims. We respectfully agree with the dictum laid down by the Full bench that in a suit for redemption including the prayer for arrears of rent, court-fee on arrears of rent need not be paid and court-fee paid on the mortgage amount would be sufficient.