JOHN AND ORS. Vs. LILLY LEAN AND ORS.

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 1/6th 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 kuzhikanom 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. 4,647 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.) COURT fee in a suit for redemption was originally governed by Section 7(ix) of the Court Fees Act, 1870. Now it is governed by Section 33(8) of the Kerala Court fees and Suits Valuation Act, 1959. We will read the sections for a better appreciation of the contentions before us. Section 7(ix) reads: