Chirutheyi Amma and Others vs Kerala Varama Raja and Others

Joseph, J.—In a suit for redemption and recovery of possession of 5 out of 19 items demised under a kanom deed, the plaintiff valued the relief regarding redemption at Rs. 1,288/- and paid court fee accordingly, on the ground that that was the sum chargeable on these properties. Partial redemption was claimed as the kanom transaction was alleged to have become split up. The trial court held that the plaintiff was liable to pay court fees on the entire kanom amount of Rs. 4,709-9-0. The plaintiff has preferred this Civil Revision Petition from the order. The suit is one governed by the Madras Court Fees and Suits Valuation Act (XIV of 1955). Section 34 of the Act which governs suits relating to kanoms under the Malabar Tenancy Act, 1929, provides as follows:

(1) A suit by a landlord for recovery of possession of property transferred by way of kanom or kanomkuzhikanom shall be deemed to involve the reliefs of redemption and ejectment, and fee shall be levied in respect of each of the reliefs, that is to say, on the kanartham in respect of the relief of redemption and on one year''s michavarom or rent in respect of the relief of ejectment.

(2) If in any such suit, arrears of michavarom or rent or damages or both are also sought to be recovered, fee shall be levied also on the amount of such arrears or damages or both:

Provided that, there the plaintiff seeks to set off the kanartham and the value of the improvements due by him to the defendant against arrears of michavarom or rent due to him, fee shall be levied only on the balance claimed; and if the amount ascertained to be due to him exceeds the amount as estimated by the plaintiff, no decree shall be passed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the amount so ascertained is paid. If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the amount to which the fee paid extends.

The learned Munsiff correctly held that court fee was payable under sub-section 1 of section 34. However he held that court fee was payable on the whole kanom amount, although the suit was for redemption and recovery of only 5 out of 19 items covered by the kanom deed. This view cannot be supported. So far as the relief of redemption is concerned, the section provides that fees shall be levied "on the kanartham in respect of the relief of redemption". Section 33 (8) contains the provision for computation of fee in a suit for redemption of a mortgage and is in the following terms:

In a suit against a mortgage for redemption of a mortgage, fee shall be computed on the amount due on the mortgage as stated in the plaint or on one-fourth of the principal amount secured under the mortgage, whichever is higher:

Provided that, where the amount due on the mortgage is found to be more than the amount on which fee has been paid by the plaintiff, no decree shall be passed until the deficit fee is paid:

Provided further that, in the case of a usufructuary or anomalous mortgage, if the plaintiff prays for redemption as well as for accounts of surplus profits, fee shall be levied separately on the relief for accounts as in a suit for accounts.

The plaintiff is bound under this section to pay court fee on "the amount due on the mortgage as stated in the plaint or on one-fourth of the principal amount secured under the mortgage whichever is higher". The sum of Rs. 1,288 on which the plaintiff has paid court fee is more than one-fourth of the amount secured under the deed. It is therefore clear that the plaintiff has correctly computed the fee payable in respect of the relief of redemption. He has however to pay fee so far as the relief of ejectment is concerned on one year''s michavarom or rent, if the same is payable under the kanom deed. The averments in the plaint show that no michavarom or rent is payable by the kanomdar. The court fee paid is therefore sufficient.

The Civil Revision Petition is therefore allowed and the order of the court below is set aside. As the fee paid is sufficient the court below will proceed with the trial of the suit. The question of valuation and court fee was raised by the court fee Examiner and not the defendants and so I make no order as to costs.