ABU Vs. THITHIKUTTY UMMA AND OTHES

JUDGEMENT

(1.) The question arising in this Civil Revision Petition is whether the court fee paid is adequate ana proper. The question was raised in the appeal A. S. No. 399 of 1966 on the file of the Subordinate Judge of Ottappalam from a final decree for partition. The appeal was filed by defendants 2,5 and 6. One of the contentions raised in the appeal was in respect of the mesne profits decreed against them. Mesne profits have not been separately valued in the appeal, since according to the appellants mesne profits form part of the corpus available for partition among the various sharers. In the appellate court a preliminary objection was raised by the respondent (plaintiff) saying that since a specific amount has been decreed by way of Mesne Profits the appellant should be called upon to pay court fee on that amount irrespective of other reliefs claimed in the memorandum of appeal. The appellants are made liable for three years, mesne profits at the rate of Rs. 985-88 Ps., per year. They have been made liable for future mesne profits also at the same rate. The learned Subordinate Judge upholding the preliminary objection has directed the appellants to pay deficit court fee on the mesne profits decreed.

(2.) The law is clear that in a suit for partition a sharer claiming partition has a right to demand accounts of the mesne profits received by the person in possession, and ask for a decree for his share of the mesne profits that have so accrued. A Division Bench of this court in Mariyumma v. Kunhambu Nair ( 1967 KLT 1017 ) has observed that in such suits a share of the profits is claimed "not as mesne profits but as appurtenant to his right in his share of the lands. The profits accruing from the common properties forming the subject matter of the division during the pendency of the suit, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It is not correct to regard the claim for profits put forward in a suit for partition by a sharer of joint family property or of coownership property as a claim for mesne profits falling under O.20 R.12 C.P.C. It is part of the legitimate function of a court passing a final decree in suit for partition and effectuating a division of properties pursuant to a preliminary decree to make a division of the profits that have accrued from such properties pending the suit, as such profits really form part of the corpus available for division."

(3.) In the present case, the appeal is against the final decree and one of the contentions raised in the memorandum of appeal is that the decree directing the appellant to pay mesne profits as wrong and unsustainable. It is one of the points that would ordinarily arise in an appeal against a partition decree and on such a relief advalorem court fee is not chargeable. The appeal being one arising from suit for partition the court fee payable will be the fee provided in Art.17(b) of Schedule.11 of the Court Fees Act (Central Act) (Corresponding provision is given in S.37 of the Kerala Court Fees and Suits Valuation Act). As against this position a decision of the Andhra Pradesh High Court In re Kudappa Subbamma (AIR 1957 AP 6) was cited before me by the learned counsel where it was held that a specific amount having been decreed by way of mesne profits, the court fee payable in appeal amount having been decreed by way of mesne profits, the court fee payable in appeal is the court fee charged on the amount so decreed. But there the appeal was from a decree for mesne profits under O.20 R12 C.P.C. In such cases the court fee payable will have to be determined with reference to the amount or value of the subject matter in dispute. It was held in that case:-