SEKHARAN NAIR (DEAD) Vs. KONGOT EACHARAN NAIR

JUDGEMENT

(1.) The suit is to redeem a kanom. The District Munsif dismissed the suit, but the Subordinate Judge, on appeal, gave the plaintiff a decree for redemption on payment of the kanom amount and a certain sum for value of improvements. Against this decree certain of the defendants have filed the present second appeal, and in their appeal memorandum they "question the plaintiff's right to redeem and also contend that if it is held that the plaintiff is entitled to redeem he can only do so on payment of a larger sum for improvements than that fixed by the Subordinate Judge. The extra amount claimed for improvements is not given in the Memorandum of Appeal, and Court-fee has been paid on the kanom amount only. The preliminary objection is taken on behalf of the plaintiff-respondent that the extra amount claimed for improvements should be stated and that Court-fee should be paid on that amount also.

(2.) The Court-fee payable on a document of any of the kinds specified in the First or Second Schedules of the Court Fees Act is indicated in one or other of those Schedules-Vide Secs.4 and 6 of the Court Fees Act. Art. 1 of Schedule I is a general Art. indicating the fee payable in respect of a plaint or Memorandum of Appeal not otherwise provided for in the Act, that is, we take it, not falling under any other Art. of the First or Second Schedules, as it is those schedules alone which indicate the fee. A perusal of the two schedules will show that a Plaint or Memorandum of Appeal in a redemption suit can only come under Art. 1 of Schedule 1. Under that Art. the Court-fee has to be computed at a stated rate on the amount or value of the subject-matter in dispute, so that before we can ascertain the amount of the fee we must know the value of the subject-matter in dispute. Now a suit for redemption is a suit to recover property mortgaged on payment of what is alleged to be due to the mortgagee. The plaint may show that in addition to the principal money, arrears of interest and compensation for improvements are payable to the mortgagee before the property can be recovered. It may also indicate that the defendant is claiming more under one head or another than the plaintiff admits to be due. Nevertheless Section 7, Clause 9, of the Court Fees Act lays down that the fee in such a suit shall be computed according to the principal money expressed to be secured by the instrument of mortgage. Hence, in such a suit it must be taken that for the purpose of Art. 1, Schedule 1, the value of the subject-matter in dispute is the said principal money. From this it seems reasonable to infer that for the purpose of the Court Fees Act the subject-matter in dispute in a redemption suit is the existence of the right to redeem, any question as to the amount payable as the condition of redemption being regarded as merely incidental to that right. Let us suppose that such a suit is dismissed, and that the Court dismissing the suit has also recorded a finding that if it were found that the plaintiff had the right to redeem he would have to pay more than the amount alleged by him to be due. The plaintiff on appeal would necessarily urge his right to redeem, and might also contest the finding as to the amount payable. The nature of his suit in appeal would, however, be in no way altered, and there is no sound reason why the subject-matter in dispute in the appeal should, for the purpose of the Court Fees Act, be regarded as different from the subject-matter in dispute in the plaint, i.e., the existence of the right to redeem. How then are we to value that subject-matter in the case of the appeal memorandum ? We can only value it as in the case of the plaint, as otherwise there is no provision in the Court Fees Act for valuing it. Suppose again, the plaintiff gets a decree for redemption and the defendant, as in the present case, appeals, contending that the plaintiff has no right to redeem, and in the alternative that if the plaintiff has the right to redeem the amount payble by him is greater than that found by the lower Court. Here again the nature of the suit is in no way changed in appeal. The same questions arise as arose originally and as arise in the appeal by the plaintiff just dealt with above, viz., the existence of the right to redeem, and the amount payable if that right is found to exist. There is no good reason why a defendant appealing on such grounds should be in a worse position than a plaintiff appealing on similar grounds, or why the subject-matter in dispute in the defendant's Memorandum of Appeal should not also for the purpose of the Court Fees Act be taken to be the same as the subject-matter in dispute in the plaint.

(3.) In support of the views above expressed we may refer to the case of Hafiz Ahmad V/s. Sobha Ram (1884) I.L.R. 6 A. 488. There it was held that " where an appeal is preferred in a suit for pre-emption on the ground that the right to pre- empt has or has not been established, as the case may be, no matter what other pleas may be taken, the value of the subject-matter in dispute, for the purposes of the Court Fees Act, must be determined as in terms provided in Art. (VI) of Section 7 of the Act . It was also held that the subject-matter of the dispute in such cases was the right of pre-emption.