NAIR SERVICE SOCIETY Vs. STATE OF KERALA

JUDGEMENT

(1.) I am afraid that when I made the order of the 7th April 1967 in this case, the statute I had actually before me was Kerala Act 10 of 1960 although the statute i mentioned in the order was Madras Act XIV of of 1955 which is the statute that really applies. Nevertheless, I think that my direction to the appellant to pay court fee in the appeal on the market value of his lease-hold right is correct.

(2.) THE appellant is a defendant in a suit for partition in a Nayar tarwad. He holds the property in dispute in the appeal under a lease from the karnavan of the tarwad, and the decree he has suffered, and against which he is appealing is a preliminary decree for partition and possession in favour of the several sharers free of his lease which has been ignored on the ground that it is not binding on the tarwad. It seems to me that the case falls directly within Art. 1 of Schedule I of the Act (Madras Act XIV of 1955) and that the appellant must pay court fee thereunder on the value of the subject-matter in dispute, the subject-matter in dispute being the lease-hold right he claims, the appellant having no objection to a partition of the reversion. As I have said, the decree relates to the entire property covered by the appellant's lease and provides for its division between the several sharers, actual possession being given to them, so that the appellant must pay court fee on the value of the entire lease-hold right, not merely on the plaintiff's share of the property on which alone the plaintiff paid court fee in his plaint under s. 37 (1) of the Act.

(3.) IT is contended on behalf of the appellant that under explanation (1) to S. 52, in this appeal against the grant of a relief, the fee payable would be the fee that would be payable on the relief granted in the court of first instance. That, of course, is so. But the relief hers granted and appealed against is not merely a partition and separate possession of the plaintiff's share of the property but a partition of the entire property between several sharers with recovery of possession of the entire property from the hands of the appellant. The fee that would be payable on that relief in the court of first instance would be the fee payable under S. 37 (1) of the Act in respect of all the shares, in other words, on the market value of the entire property itself, not merely of the lease-hold right therein. There can be no objection to the appellant paying court fee accordingly if he wishes to, but, having regard to the language of Art. 1 of Schedule I, and of the body of S. 52, i should think that the appellant need pay court fee only on the subject-matter of the appeal, namely, the leasehold right he claims.