Sekharan Nair and Others vs Kongot Eacharan Nair and Others

The suit is to redeem a kanorn. The District Nunsif dismissed the suit, but the Subordinate Judge on appeal gave the plaintiff a decree for

redemption on payment of the kanowi 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.

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 Sections 4 and 6 of the Court Fees Act. Article 1 of schedule I is a general article 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 article 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 Article 1 of Schedule I."" Under that article the Court-fee has to be computed at a stated rate on

the amount of 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 IX 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 Article 1,

Schedule, I 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 payable 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.

In support of the views above expressed we may refer to the case of Hafiz Ahmad v. Sobha Ram 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 Article (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.

We are not concerned here with the case where in the appeal by plaintiff or defendant against a decree in a redemption suit the only question is

as to the amount payable. In such a case the existence of the right to redeem cannot be said to be the subject-matter in dispute in the appeal

memorandum, for the existence of that right is not disputed. The subject-matter in dispute is a definite amount. The memorandum of appeal can

only, however, as before, come under Article 1 of schedule I for the purpose of computing the Court-fee, and under that article the Court-fee is to

be computed on the amount in dispute. This result is the same as that arrived at in the Reference under Court Fees Act, 1870 29 M. 367 : 16

M.L.J. 287.

We are, therefore, of opinion that the memorandum of appeal in the present case is properly stamped.