KRISHNA KURUP Vs. MADHAVAN NAMBOODIRI

JUDGEMENT

(1.) In the revision petition filed by plaintiffs 1 to 3 the question raised relates to the sufficiency of the court fee paid for the plaint. It is agreed between the parties that the relevant provision applicable is S.33, sub-s.(8) of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960). The provision is in these terms:

(2.) To appreciate the contention of the revision petitioners it is necessary to state a few facts as disclosed in the plaint. The plaint schedule property comprises an extent of 4 acres 92 cents (52 parahs) of paddy land. The property belonged to Areprathu tarwad. The tarwad executed a mortgage with possession on 10-4-1042 for a term of 42 years in respect of 13 acres 62 cents of paddy land including the plaint property in favour of one Narasimha Iyer Krishna Iyer for 3400 parahs of paddy. There is a provision in the mortgage deed for payment of 32 parahs of paddy annually towards michavaram to the mortgagors' tarwad. The right of the mortgagees devolved on the family of defendants 1 to 5. The members of their family divided the mortgage right under two documents of the years 1952 and 1961 and the mortgage right on the plaint schedule item was allotted to defendants 1 to 5 apportioning the mortgage money chargeable on the plaint item at 1230 Kalloorkadan parahs of paddy and fixing the michavarom payable by defendants 1 to 5 at 11 parahs and 5 edangazhies of paddy per annum, It is alleged in Para.8 of the plaint that the sharers to whom the mortgage right over the remaining 8 acres and 70 cents was allotted under the documents of the years 1952 and 1961 have obtained the equity of redemption of those items and thereby, the mortgage right over 8 acres 70 cents of land has become extinguished. The plaintiffs therefore pray for redemption of the mortgage outstanding on the plaint schedule items on payment of 1230 parahs of paddy and also for setting off the arrears of michavarom due from the year 1084 against the mortgage money. The plaintiffs paid court fee on the money value of 1230 parahs of paddy calculating the price of paddy at 6 Chakrams per parah. The learned Munsiff by the order sought to be revised held that the plaintiffs in view of the second proviso to sub-s.(8) of S.33 of Act 10 of 1960 are bound to pay separate court fee for the set off of arrears of michavarom against the mortgage money and also directed the plaintiffs to value the paddy at the market rate prevailing on the date of the suit.

(3.) The submission of the learned counsel for the revision petitioner was in these terms. According to the plaint, no amount is due on the mortgage transaction to the mortgage and the plaintiffs are entitled to recover possession without payment of any redemption price. The plaintiffs are therefore bound to pay court fee on 1/4th of the principal amount secured under the mortgage. The amount secured under the mortgage according to the learned counsel is only 1230 Kalloorkadan parahs of paddy and not 3400 parahs of paddy. The plaintiffs are bound to pay court fee only on 1/4th of the value of 1230 Kallorkadan parahs of paddy. The point in the form in which it was raised before us was not raised before the learned Munsiff. The contention on behalf of the State was that the clause "one fourth of the principal amount secured under the mortgage" means one fourth of the principal amount secured under the instrument of mortgage of 1042, namely 3400 Kalloorkadan parahs of paddy. S.33 sub-s.(8) of the Kerala Court Fees and Suits Valuation Act, 1959, corresponds to S.33 sub-s.(8) of the Madras Court Fees Act 1955. The learned counsel for the revision petitioners placed before us a number of decisions interpreting S.7, sub-s.(ix) of the Court Fees Act, 1870 (Central Act No. 7 of 1870). S.7, sub-s.(ix) of the Act is in these terms: