Sekharan Nair (dead) and Others vs Kongot Eacharan Nair and Others

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.

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 1. Under that Article 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 Article 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.

In support of the views above expressed we may refer to the case of Hafiz Ahmad v. Sobha Ram ILR (1884) 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. The result is the same as that arrived at in the Reference under Court Fees Act, 1870, reported in ILR 29

M. 367.

We are, therefore, of opinion that the Memorandum of Appeal in the present case is properly stamped.

There is no clear finding as to whether the yogam or the members of the yogam are interested in the suit property. If they are interested in the

property within the meaning of Section 85 of the Transfer of Property Act then the suit is clearly bad for non-joinder. We must therefore ask the

Subordinate Judge to find on the evidence on record whether the yogam or the members of the yogam are interested in the suit property and if so

what is the nature of that interest. We must also ask him to find on the evidence on record whether the kaimal is or is not a trustee.

The findings should be submitted within six weeks from this date and seven days will be allowed for filing objections.

In compliance with the above order, the Subordinate Judge submitted findings to the following effect:

I find on the 1st issue referred to me that the '' Yogam'' has no proprietary interest in Devaswom property; that the only right which they have is the

right to take the initiative in getting a Thachutaya Kaimal appointed by the Travancore Maharaja for the Devaswom when there should be a

vacancy in that office, to have the accounts of the Devaswom read to them by the accountant of the Thachutaya Kamial in the temple, to perform

the ceremonies called Theverseva and Panchasandha in the temple and to see that the spiritual interests of the temple are properly kept up. They

have no interest in the suit property such as entitles them to be made parties to the suit. I find the first issue accordingly in the negative.

On the 2nd issue, I find for the reasons already stated, that the Thachutaya Kaimai is in law the trustee of the Devas- worn. The evidence on

record shows that he has been all along managing the Devaswom properties as the rightful representative of the Devaswom, without any

interference on the part of the '' Yogam''. Though in some documents he is styled the proprietor of the Devaswom properties, the description in

those documents taken as a whole simply shows that he is the representative of the Devaswom and, as such, the person in whom the properties of

the Devaswom are legally vested. The fact that he is not described as Uralan in the documents relating to the Devaswom is of no consequence,

because the usages and designations relating to this Devaswom are unique and have nothing in common with those applicable to the ordinary

Devaswoms in British Malabar. It has been decided by the Privy Council, that the rights regulating particular public religious institutions in India

depend upon theii own particular circumstances and have to be deduced from the history of their foundation and immemorial usage. Such being the

case, the non-mention of the word Uralan in connection with the Thachutaya Kaimal is not by any means a ground for holding that he cannot be

regarded as the trustee of this particular religious institution. On the evidence on record, I am of opinion that his true legal position is that of a

trustee of the Devaswom. I find accordingly on the 2nd issue that the Kaimai is the trustee of the Devaswom.

The Court delivered the following

The Subordinate Judge has returned findings to the effect that the members of the Yogam have no interest in the property such as entitles them

to be made parties to the suit and that the Thachutaya Kaimai is in law the trustee of the Devaswom. These are findings of fact and are binding

upon us unless open to some legal objection. It is contended that the findings are vitiated by the facts that the Subordinate Judge has grossly

misconstrued certain documents and has wrongly excluded certain evidence as inadmissible. The evidence said to have been wrongly excluded

consists of Exs. XI and XVII. The Subordinate Judge did not reject Ex. XI as inadmissible. He merely pointed out that it was not free from

suspicion which he was certainly entitled to do. Again the Subordinate Judge did not exclude Ex. XVII. He merely criticised the use made of it by

the Zillah Judge in Ex. XIX. The documents said to have been misconstrued are certain judgments filed to show instances where the rights in

dispute were asserted or denied. He was entitled to weigh the effect of these judgments in the same way as the other evidence in the case and this

is all he seems to us to have done. We therefore accept the findings of the Subordinate Judge.

The defendants who appeared in the suit did not contest the genuineness of the plaint melcharth and no issue about its genuineness was framed.

As, however, there were some defendants who did not appear, it was necessary to formally prove the melcharth as against them. This necessity

was apparently overlooked in the first Court. The Subordinate Judge permitted the formal proof to be given, and in the circumstances we are not

prepared to interfere.

The next point taken is that the plaint melcharth was merely a sham and not intended to pass any interest in the property. It does not appear

that this precise objection was taken in the Courts below, nor can it be said to be clearly taken in the grounds of appeal here. The main ground of

objection taken to the melcharth was that a sum of Rs. 5,000 said to have been paid by the plaintiff to the Kaimal for the melcharth had not in fact

been paid. Taking this to be so, the circumstance is not enough ground for holding that no interest was intended to pass. Then it is said that the

melcharth is invalid because the Kaimal gave it without receiving the Rs. 5,000 and so acted to the prejudice of the Devaswom. Even if the Rs.

5,000 was not received by the Kaimal there was prima facie good consideration for the melcharth as the Subordinate Judge has pointed out. The

fact that the defendants were claiming to hold on perpetual tenure was another cogent reason for granting a melcharth.

The remaining point taken is that compensation should have been awarded for 1214 paras of paddy land in place of 310. The Subordinate

Judge found that 904 paras had been previously paid fori The finding is one of fact and is open to no legal objection.

The appeal fails and is dismissed with costs. Six months time from this date is allowed for redemption.

The Memorandum of Objections is dismissed with costs.