KODI VENYKATAPPA ROW Vs. BARNALA SURY ANARAYANA

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Vizagapatam, returning a plaint for presentation to the proper Court. The suit was for recovery "of immoveable property held on the mortgage by defendants Nos. 1 to 8. The plaintiff also alleged in his plaint that he believed that the mortgage-debt had been discharged by the usufruct of mortgaged property a few years before the date of the plaint. He stated also what he believed to be the annual income from the property. In the prayer in the plaint, he asks for the recovery of possession and for an account being taken of the income of the property and for payment of whatever might be found to be due on the taking of the account, The plaintiff did not value his prayer for the recovery of money. He apparently proceeded on the view that no extra stamp duty was payable for recovering any surplus that might be found due from the mortgagees. The District Munsif passed a decree for redemption and found that a sum of Rs. 1,207 and odd was due to the mortgagees by the plaintiff. The defendants appealed claiming a much larger amount as due to them on the mortgage. After the appeal was presented, the plaintiff is alleged to have transferred his right in the property to the appellant before us. Subsequent to the date of the transfer, he entered into a compromise with the mortgagees agreeing that a sum of Rs. 4,000 was due on the mortgage. The appellant sought to be made a party to the appeal as transferee of the plaintiff s rights. This application was opposed by both the plaintiff and the mortgagees but it was granted by the Appellate Court, The plaintiff and the mortgagees sought to have a decree passed in terms of the compromise entered into between them. The Subordinate Judge refused to accede to this prayer on the ground that the plaintiff who entered into the compromise was, prior to it, alleged to have parted with his rights in the property. When the appeal came on for hearing, he held that the Munsif had no jurisdiction to try the suit. He proceeded on the allegation in the plaint as to the probable income of the property every year. We do not think he was justified in doing so. The plaintiff did not tie himself down to that allegation and he was, of course, not in a position to state what income was really realised during years when the mortgagees were in possession. He merely asked for an account to be taken and for payment of whatever might be found to be due. If separate Court-fee was payable on any amount which the plaintiff may claim from the defendants, then the proper course for the Subordinate Judge to pursue was to call upon the plaintiff to state what amount he claimed as due. It was, of course, open to the plaintiff to say that he could not determine what the amount would be, and to state what he believed to be an approximate figure. The figure so stated would determine the Court-fee payable and the question of jurisdiction. On the calculation made by the Subordinate Judge, he held that the suit would be beyond the jurisdiction of the District Munsif and followed the somewhat extraordinary course of returning the plaint to the plaintiff when it was alleged that he had no longer any rights in the property. The result is, the plaint is not before us now. In appeal before us, it is argued by Mr. Ramesam that in a suit for redemption, the mortgagor-plaintiff is not bound to pay Court- fees separately on any amount which he might claim as payable to him as the result of the accounts between the parties and he relies on Husaini Khanam v. Husain Khan 29 A. 471 : A.W.N. (1907) 133 : 4 A.L.J. 375. This case seems to be in support of his contention. Section 7, Clause 9, of the Court Fees Act, according to its language, applies to suits to recover immoveable property mortgaged. Recovery of possession is the only description contained in the clause. It is, therefore, doubtful whether it would be right to hold that if there is any prayer for payment of money in addition to recovery of possession, that prayer need not be separately valued and Court-fee paid on the value put. The cases of Konna Paniker v. Karunakara 16 M. 328 and Rama Varma Raja v. Kadar 16 M. 415relied on for the respondent, are not directly in point. In those cases, it was held that a jenmi in Malabar suing a Kanomdar for redemption should pay Court-fees on any rent that he might claim. In the judgments in the cases, it is stated that the plaintiff prayed not only for redemption but also for the recovery of rent. It has been held by the Court that a kanom mortgage in Malabar is not purely a mortgage but also a lease. It might, therefore, be said that redemption of a kanom, mortgage does not include any claim for rent based on the transaction as a lease; while with regard to bare usufructuary mortgages, the plaintiff is entitled in a suit for redemption to have an account taken between him and the mortgagee and the payment by the mortgagee of whatever might be found to be due to him on the taking of accounts. The language of the clause is, perhaps, more in favour of the respondent s contention. It is, however, unnecessary to pronounce a definite opinion on this point. We have asked Mr. Ramesam, who appears for the transferee, to state whether he would claim more than Rs. 1,500 as the approximate amount which will be found due on account being taken. He says No." The suit may, therefore, be held to be within the jurisdiction of the District Munsif. If the assignment is found to be valid, then Mr. Ramesam s client is prepared to state the amount which he claims from the mortgagees and to pay Court-fees on that amount. If the assignment is found to be not valid, it would be impossible for the plaintiff, after admitting that a sum of its. 4,000 was due by him to the mortgagees, to make any claim for money due by the mortgagees to him. We reverse the order of the Subordinate Judge and remand the appeal for disposal according to law. If he finds the assignment valid, he will call upon the appellant before us to state the amount which he claims as due from the defendants and levy Court-fees on that amount in the Court of first instance.

(2.) The costs in this Court will abide the result. Sadasiva Iyer, J.

(3.) So far as Section 7, Clause 9, of the Court Fees Act is concerned it is worded thus: "In suits against the mortgagee for recovery of the property mortgaged, according to the principal money expressed to be secured by the instrument of the mortgage." It does not use the words "for the recovery of the possession of the property mortgaged" but merely "for the recovery of the property mortgaged." The marginal note in the Government of India Edition is to redeem." In a suit by the mortgagor to redeem a simple mortgage, I think, it might be taken that the expression recovery of the property mortgaged" means the re-conveyance to the mortgagor of the interest which was vested in the mortgagee. In this view, all suits merely to redeem mortgages, without praying for any additional relief against the mortgagee, must be held to come under Section 7, Clause 9 of the Court Fees Act. With these observations, I agree with my learned brother in the decree and order proposed by him.