KOLATHUNGAL KUNHIRAMAN Vs. APPA KUNHI

JUDGEMENT

(1.) The appellant is the defendant in a suit for redemption of a mortgage, where the reliefs claimed are:

(2.) There cannot be any dissent to the proposition of law stated by the Munsiff "that where the plaintiff approximately estimates the amount of mesne profits at a certain sum he is not bound down to the amount if more is found due to him. O.7 R.2 CPC. contemplates the plaint in a suit for mesne pro. fits, to "state approximately the amount sued for". The Court Fees Act also provides that in suits for mesne profits where the amount is stated approximately the fee shall be computed on such amount and that if the profits ascertained by the Court are in excess of the profits as approximately estimated and sued for, the difference between the fee paid and the fee that would have been payable on the profits found shall be levied and collected. That obviously is on the principle that an approximate estimate cannot conclude a party. That is exactly what the Munsiff has deduced from the two Calcutta decisions cited by him.

(3.) Counsel for appellant claimed deduction of 10 per cent of the yield towards collection charges in the calculation of mesne profits. As a general rule it has been so laid down by the Privy Council in Secretary of State v. Saroj Kumar Acharjya Choudhury ( AIR 1935 PC 49 at 52). But it cannot apply to suits in redemption in view of clauses (h) and (i) of S.76 of the Transfer of Property Act, 1882, which expressly disallow to the mortgagee expenses of management or collection of the rents and profits of the mortgaged property after the mortgage amount has been tendered to him directly or through Court. Further, it is conceded at the bar that even if 10 per cent be deducted out of the yield of the property reported by the commissioner the mesne profits claimed by the plaintiff would be due to him.