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Jangumiya Suleman Madiwale Vs. Hashamsaheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 590 of 1941
Judge
Reported inAIR1945Bom504; (1945)47BOMLR400
AppellantJangumiya Suleman Madiwale
RespondentHashamsaheb
DispositionAppeal allowed
Excerpt:
court-fees act (vii of 1870), section 7(ix), article 1, schedule i - decree in redemption suit-appeal. to reduce liability imposed by decree-court-fee on memorandum of appeal, valuation of. in an appeal from a decree in a redemption suit, when the right to redemption is no longer in dispute, and the appellant merely seeks to reduce the liability imposed upon him by the trial court, the court-fees on the memorandum of appeal must be paid on the amount in respect of which he seeks to avoid liability. in such a case the memorandum of appeal is governed by article 1 of schedule i to the court-fees act, 1870, and not by section 7 (ix) of the act.;case-law considered. - - on the failure of the plaintiffs and defendants nos. ' now, it is perfectly clear that the real subject-matter in dispute.....rajadhyaksha, j.1. this is an application in revision against an order passed by the district judge at belgaum directing the plaintiff-applicants to pay ad valorem court-fee on rs. 9,000. the fee that was ordered to be paid by the court was not paid, and the appeal was, thereupon, rejected for non-payment of court-fees.2. in this case the plaintiffs filed a suit to redeem, along with defendants nos. 9 and 10, as heirs and legal representatives of the original mortgagor, a mortgage for rs. 1,000 in favour of defendant nos. 1 to 8 effected on january 1, 1896. the mortgage was a usufructuary one. the plaintiff filed the suit for taking accounts of the mortgage and for redemption.3. the suit was resisted on several grounds. it was contended by the defendants that the suit was barred by the.....
Judgment:

Rajadhyaksha, J.

1. This is an application in revision against an order passed by the District Judge at Belgaum directing the plaintiff-applicants to pay ad valorem court-fee on Rs. 9,000. The fee that was ordered to be paid by the Court was not paid, and the appeal was, thereupon, rejected for non-payment of court-fees.

2. In this case the plaintiffs filed a suit to redeem, along with defendants Nos. 9 and 10, as heirs and legal representatives of the original mortgagor, a mortgage for Rs. 1,000 in favour of defendant Nos. 1 to 8 effected on January 1, 1896. The mortgage was a usufructuary one. The plaintiff filed the suit for taking accounts of the mortgage and for redemption.

3. The suit was resisted on several grounds. It was contended by the defendants that the suit was barred by the decree in Suit No. 15 of 1908. They also contended that they had effected several improvements and were entitled to get credit there for in taking accounts. But the principal contention was that while they were in possession of the suit property as mortgagees, they had to pay Rs. 4,000 to save the property from being sold in execution of a decree in respect of a prior mortgage. They, therefore, contended that they were entitled to get credit for that amount and interest thereon under Section 72 of the Transfer of Property Act. When the suit came up for trial, the defendants did not press that the suit was barred by res judicata and also gave up their contention in respect of the improvements and the expenses of litigation. The plaintiffs admitted that Rs. 1,000 were due to the defendants under the suit mortgage, and that, therefore, there was no necessity for taking accounts. But in respect of the main contention of the defendants, the learned trial Judge came to the conclusion that the plaintiffs and defendants Nos. 9 and 10 were bound to reimburse defendants Nos. 1 to 8 in respect of the amount that they spent for preventing the property from being sold in execution of a decree obtained in respect of an earlier mortgage; and ultimately the learned trial Judge passed a decree in the following terms:

The plaintiffs and defendants Nos. 9 and 10 do pay Rs. 10,150 with costs of the suit and future interest at 6 per cent on Rs. 5,000 from the date of the suit till satisfaction to defendants Nos. 1 to 8 within six months from to-day. On their doing so, the defendants shall deliver up to the plaintiffs and to defendants Nos. 9 and 10 all documents in their possession or power relating to the suit mortgaged property described in the schedule to the plaint and shall further transfer possession of the suit property at plaintiffs' cost free from the mortgage encumbrances. On the failure of the plaintiffs and defendants Nos. 9 and 10, defendants Nos. 1 to 8 may apply for a final decree.

4. Against this decree the plaintiffs filed an appeal in the District Court of Belgaum. In the memorandum of appeal it was prayed 'that the appeal should be allowed with all costs in both the Courts, by holding that defendants Nos. 1 to 10 were not : entitled to claim Rs. 9,150 in this suit and that the plaintiffs were bound to pay only Rs. 1,000. There was also a prayer in respect of the dismissal of the suit against defendants Nos. 11 and 12 with which we are not concerned. It was stated that the appeal related to the following points : (1) The finding of the lower Court to the effect that defendants Nos. 1 to 8 are entitled to recover Rs. 9,150 in the suit before the plaintiffs are allowed1 to get possession of the lands; and (3) The lower Court's finding that the plaintiffs are not agriculturists, and its consequent omission to extend the benefits of the Dekkhan Agriculturists Relief Act to them. In respect of the first prayer, the relief was valued at Rs. 200 only, as a declaration that defendants Nos. 1 to 8 were not entitled to recover Rs. 9,150 was thought to be sufficient. For the third relief, viz. that the plaintiffs should be held as agriculturists, the claim was valued at Rs. 200. And in the end, it was prayed that the amount found due may be made payable by easy instalments. When this memorandum of appeal was presented to the Court at Belgaum, a question arose whether proper court-fees had been paid in respect thereof, the office contention apparently being that as the plaintiffs-appellants had obtained a decree for redemption on payment of a sum of Rs. 10,150 out of which the plaintiffs admitted liability only to the extent of Rs. 1,1000, they should pay court-fee on the additional sum of Rs. 9,150 which they were liable to pay under the decree of the Court and which liability they sought to avoid by filing the appeal. After hearing the parties, the learned District Judge passed an order on June 21, 1941, that the office contention was correct and that ad valorem fees ought to be paid on Rs. 9,000 and odd within one month. In coming to this conclusion, the learned Judge relied on the authority of Mahadeo Prasad v. Gorakh Prasad I.L.R (1908) All. 547. The court-fees that were ordered to be paid were not in fact paid within the time allowed, and thereupon the appeal was rejected for non-payment of court-fees. It is against that order that the plaintiffs have filed this application in revision.

5. It has been contended by Mr. Datar, the learned advocate for the applicants, that the view of the learned District Judge is not correct and that the court-fee to be paid on the memorandum of appeal must be decided by reference to Section 7, Clause (ix), of the Court-fees Act, and not with reference to Article 1 of Schedule I of the Act. His contention is that even in appeal the subject-matter of the dispute is the right to redeem on payment of a certain sum of money, and that, therefore, the matter should be governed not by Article 1 of Schedule I but by Clause (ix) of Section 7 of the Court-fees Act. In support of this contention, he has relied on a decision of this Court in Umarkhan v. Mahomedkhan I.L.R (1885) Bom. 41 and the judgment in Gopal v. Gangaram (1891) P.J. 218.

6. Section 6 of the Court-fees Act is the charging section and lays down that:

.no document of any of the kinds specified as chargeable in [either] the first or second schedule to this Act annexed shall be filed, is exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.

7. The relevant article in this connection is Article 1 of Schedule I which refers to a plaint, written statement pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in the Act) or of cross-objection and to the court-fee to be paid on such a document. The document with which we are concerned is a memorandum of appeal, and unless there is other provision made elsewhere in the Act, the court-fee payable on the memorandum of appeal would depend on 'the subject-matter in dispute.' Now, it is perfectly clear that the real subject-matter in dispute in appeal was the liability imposed upon the plaintiffs of the payment of Rs. 10,150 (which the plaintiff-appellants disputed to the extent of Rs. 9,150) before they were entitled to take possession of the property. If, therefore, Article 1 of Schedule I applies, it is obvious that the plaintiff-appellants were bound to pay court-fees on Rs. 9,150 as directed by the learned District Judge; and this position is not disputed by the learned advocate who appeared for the applicants. But it was contended by Mr. Datar that there is other provision made in respect of appeal of this kind, and the words ' not otherwise provided for in this Act' excluded the operation of Article 1 of Schedule I to memorandum of appeal of the kind with which we have to deal; and in this connection he urged that the other provision that is referred to in the Act is the one in Clause (ix) of Section 7, which says that in suit against a mortgagee for the recovery of the property mortgaged and in suits by a mortgagee to foreclose the mortgage, or where the mortgage is made by conditional sale, to, have the sale declared absolute-the amount of fee payable under the Act shall be computed according to the principal money expressed to be secured by the instrument of mortgage. Mr. Datar's argument was that as the principal money expressed to be secured by the instrument of mortgage is Rs. 1,000, the court-fee liable to be paid on the memorandum of appeal is on that sum. This contention immediately raises the question whether Clause (ix) of Section 7 applies to appeals. On this point, there has been a great divergence of opinion among the various High Courts in India. In Lekh Ram v. Ramji Das I.L.R (1919) Lah. 234 it was held that in such cases Article 1 of Schedule I of the Court-fees Act applied to the appeal and not Clause (ix) of Section 7, and that the proper court-fee was, therefore, ad valorem on the amount of the subject-matter in dispute in appeal. In the case of Nepal Rai v. Debi Prasad I.L.R (1905) All. 447 the plaintiff obtained a decree for redemption conditional on the payment by him of a sum fixed by the decree. The plaintiff appealed upon the ground that such sum was in excess by a specified amount of the sum rightly payable by him for redemption. It was held that 'the court-fee payable on the memorandum of appeal was to be calculated according to the sum which the appellant claimed to have deducted from his decree, and not, as in the case of a suit for redemption, according to the principal sum secured by the mortgage.' This case is on all fours with the case before us. In giving judgment in that case the learned Chief Justice observed as follows (p. 449):

Section 7, Sub-section (ix) 'is confined to a suit apparently, and not to an appeal. In schedule I to the Act we find that in the case of a plaint or memorandum of appeal not otherwise provided for in the Act, except those mentioned in Section 3, an ad valorem fee is payable at the rate mentioned in that schedule. In this schedule a memorandum of appeal is specifically mentioned, while in Section 7 of the Act a memorandum of appeal is not mentioned. Therefore, I take it that if in the case of an appeal the value of the subject-matter of the appeal can be determined, as it has been in this case, the appellant is only bound to pay a Court-fee on the amount ascertained to be the value of the subject-matter of the appeal.

To the same effect is the ruling of the full bench of the Allahabad High Court in the case of Raghubir Prasad v. Shankar Bakhsh Singh I.L.R (1913) All. 40. In that case it was held:

The criterion laid down in Section 7(ix) of the Court-fees Act, 1870, for determining the Court-fee payable in respect of a suit for redemption or foreclosure of a mortgage does not apply to the appeal in such a suit.

In the case of appeals or cross-objections in suits for redemption or foreclosure, in all cases in which the amount declared by the Court to be due at the date of the decree can be ascertained by reference to the judgment and the decree, it is that amount at which the appeal or cross-objections should be valued, and future interest should not be taken into account.

The Madras High Court also took the same view in Reference under Court-fees Act I.L.R (1905) Mad. 367. In giving the judgment Sir Arnold White C. J. observed (p. 369):

It seems to me that the word 'suits' in this sub-section cannot be construed as including appeals and that appeals (unless otherwise provided for) are governed by article 1 [of Schedule].

The Chief Court of Oudh, however, in the case of Sangat Bakhsh singh v. Rawat Dijdeo Bakhsh Singh A.I.R (1922) Oudh 82, took the contrary view. At p. 83 of the judgment, the following observations occur:

With the greatest respect we find ourselves unable to accept this view of the law. The question has already been discussed by a single judge of this Court in Gumani v. Banwari (1919) 20 O.C. 289 and we are in full agreement with the view taken by the learned judge in that case that the provisions of Section 7 of the Court Fees Act are applicable equally to appeals as to original suits and that the word 'suit' in Section 7 of the Act is not used in contradistinction to the word 'appeal.' Court-fees are payable not on suits or on appeals but on documents which are filed, exhibited or recorded in Courts in accordance with Section 6 of the Court Fees Act. Section 7 of the Act merely provides that the fees payable in suits of the nature specified in the section shall be computed in the manner prescribed. But in order to determine the actual amount of the fees payable on any plaint or memorandum of appeal in any such suit it is necessary to refer to Article 1, Schedule I of the Act.

The words 'not otherwise provided for in this Act' in that article seem to apply to special provisions for plaints or memoranda of appeals made in other articles of the Schedule.

The same view was taken by Mr. Justice Vivian Bose in the case of Sheikh Rahman V. Balchand . As at present advised, we are inclined to accept the view taken by the Oudh Court and by the Nagpur Court. Section 17 of the Court-fees Act seems to us to be an indication of what the Legislature intended when it used the word 'suits'. It says' where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable...' This seems to indicate that the word 'suit' is intended to include appeals also unless there is some other special provision made in respect of appeals. But it is not necessary for us to decide the point finally. It may however be noted that the learned advocate for the opponents has also not asked us to go so far as to say that the appeals arising out of redemption suits are necessarily governed by Article 1 of Schedule I to the Court-fees Act. But even though the word 'suit' in Clause (ix) of Section 7 may be held to include appeals, we are of opinion that an appeal of the kind we have before us is excluded from the purview of that clause, and this has been the view of all the High Courts in India including those Courts which have held that the appeals are governed by that clause.

8. The only authority which the learned advocate for the applicants cited in support of the view that he urged upon us was the case in Umarkhan v. Mahomedkhan I.L.R (1885) Bom. 41. In that case, the plaintiff had filed a suit as purchaser of the equity of redemption on a mortgage in which the principal sum of money secured was Rs. 1,152-15-4. The suit was decreed, and the plaintiff was allowed to take possession of the property on payment of Rs. 568-9-8 to defendant No. 3, the sub-mortgagee, and Rs. 584-5-8 to defendants Nos. 2, 4 and 5. On appeal to the District Court, it was held that the plaintiff was entitled to redeem the property on payment of only Rs. 200 to defendant No. 3 and Rs. 584-5-8 to defendants Nos. 2 and 5, thus rejecting the claim of defendant, No. 4 to any share in respect of the amount found due. Defendants Nos. 3 and 4 appealed to the High Court; defendant No. 3 questioned the plaintiff's right to redeem, and defendant No. 4 questioned the order of the District Court reversing the trial Court's order to pay him one-third of Rs. 584-5-8. The Taxing Officer relying on the minute of Westropp C.J. on an office-note put up by the Registrar in Special Appeal No. 385 of 1874 expressed his opinion that each memorandum of appeal should be chargeable under Section 7, Sub-clause (ix) : In passing orders on that Reference, Birdwood J. upheld the view of the Taxing Officer and observed as follows (p. 47):

Umarkhan denies that plaintiff has any right to redeem at all, and both Umarkhan and Mora contend that the whole of the original mortgage debt is still due, and that no part of the property originally mortgaged was ever redeemed by Daryakhan. They ask, in effect, that the plaintiff's claim, if admissible at all, should be adjudicated with reference to the original mortgage bond, and not with reference to the assignment by Daryakhan's equity of redemption, relied on by the plaintiffs; and each of the appeals is therefore, in my opinion, properly chargeable with a fee calculated on the 'principal money expressed to be secured by the instrument of mortgage.' In this view I affirm the decision of the Taxing Officer.

It is to be noticed that in doing so, Mr. Justice Birdwood examined the real contentions of the parties in appeal and did not hold that because court-fee had been paid in the trial Court under Clause (ix) of Section 7, the appeals were also to be valued by reference to the same clause. He examined what the contentions of the parties in appeal were and when he found that both the appellants questioned the plaintiff's right of redemption (i.e. the contentions in appeal were of the same nature as in the trial Court) he held that the memoranda of appeal were chargeable with court-fees under Section 7, Sub-clause (ix), of the Act. This decision, therefore, does not really support the argument advanced by Mr. Datar. The other case that he relied on was the judgment in Gopal v. Gangaram (1891) P.J. 218. In that case, the plaintiff brought a suit to redeem certain mortgaged property in which the mortgage debt was Rs. 375. The Subordinate Judge held that the plaintiff was entitled to redemption on payment of Rs. 1,821 and odd due on it and decreed the plaintiff's suit for redemption on payment of that amount. An appeal was filed to the High Court and the claim in appeal was valued at Rs. 375 which was the principal amount secured by the mortgage. The Taxing Officer, in an elaborate report, referred the matter to the learned Chief Justice. He pointed out that the decisions in Umarkhan v. Mahomedkhan and in Pirbhu Narain Singh v. Sita Ram I.L.R (1890) All. 94 were in support of the valuation which was made, viz. on Rs. 375. But he also pointed out that the view taken by Mr. Justice Melvill in Faki Mahomed v. Mana Kesajishet (1883) P.J. 39 and by Mr. Justice Nanabhai Haridas in Rabin v. Salem (1887) P.J. 307 was not in support of the valuation so made. He finally expressed his opinion that the claim in appeal should be regarded as one for Rs. 1,821-6-10, and the court-fee should be charged accordingly. The matter came up before Sargent C, J. and he held, following the view of Westropp C. J. in Special Appeal No. 385 of 1874, that the court-fees were properly paid on Rs. 375 as the matter was governed by Clause (ix) of Section 7 of the Act. This is the only case which the learned advocate for the applicants has brought to our notice in support of the contention which he has advanced. As the report of the case itself shows, the view taken by Sargent C.J. in that case is not entirely consistent with the view of Mr. Justice Melvill in the case of Faki Mahomed v. Mana Kesajishet. In that case, the plaintiff filed a suit to redeem certain lands, alleging that the mortgage debt was paid off, and a decree was passed ordering redemption on payment of a certain sum. The original defendants-appellants did not object to the decree appealed against, in so far as it related to the redemption of the lands. But they objected to the item of Rs. 600 which in taking accounts, the District Judge wrongly allowed against them. On a reference by the Taxing Officer on the subject of court-fees, Mr. Justice Melvill held that the subject-matter in dispute in appeal was Rs. 600 only, and the appeal should be stamped accordingly with a stamp of Rs. 45, observing (p. 39):

The appellants do not object to the decree appealed against, so far as it relates to the redemption of the lands. They abject to an item of Rs. 600 which, in taxing the accounts they consider the District Court wrongly allowed against them.

If in appeals from redemption suits where the right to redeem is not in dispute, and the only question is about the liability to pay the amount fixed by the trial Court, the court-fee payable on memorandum of appeal is to be as fixed under Section 7, Clause (ix), then it is difficult to reconcile this decision of Melvill J. with that of Sargent C.J. Sargent C.J. thought that this view of Mr. Justice Melvill was not inconsistent with the view of Westropp C.J. in Special Appeal No. 385 of 1874, because a distinction could be: drawn between a case where the mortgagor is the appellant and a case in which the mortgagee is the appellant. In drawing this distinction, the learned Judge relied on Pirbhu, Narain v. Sita Ram where Sir John Edge recognized such a distinction. But this decision has since been overruled in Nepal Rai v. Debi Prasad I.L.R (1905) All. 447. Sargent C.J. also referred to the case of Robin v. Salem, where Mr. Justice Nanabhai Haridas directed that in an appeal from a partition suit in which the partition was allowed on payment of a certain sum of Rs. 3,200, court-fees payable were not merely on the plaintiff's share at the partition, but also on Rs. 3,200 the payment of which was made by the trial Court a condition which the plaintiff had to fulfil before he could take possession of his share of property on partition. The only ground on which the learned Judge distinguished this case from the one with which he had to deal was that the, decision in Robin v. Salem was given in a partition suit and not in a redemption suit. If the test to be adopted is what is the precise nature of relief asked for in appeal, as apparently Mr. Justice Nanabhai Haridas seems to have thought, then the reasoning of that case is not consistent with the decision of Sargent C.J. in Gopal v. Gangaram. This latter case, therefore, does not settle the matter finally and has been dissented from in several decisions of the various other High Courts which have taken a contrary view.

9. Although we are of opinion, as at present advised, that Clause (ix) of Section 7 may apply to appeals from redemption suits, we think the applicability of that clause must depend on the precise nature of the dispute in appeal. When a suit is filed for redemption of a mortgaged property, and the right to redemption is disputed, and the suit is accordingly dismissed, the appeal by the mortgagor raises precisely the same points, as those raised by him in the trial Court; in such a case the appeal has to be valued for the purpose of court-fees in accordance With Clause (ix) of Section 7, i.e. on the principal money expressed to be secured by the instrument of mortgage. Similarly if a suit for foreclosure by the mortgagee is dismissed, and the plaintiff-mortgagee files an appeal, the point to be considered in appeal is the same as that in the trial Court, viz. the right to foreclose, and, the court-fee payable on the memorandum of appeal must be in accordance with the provisions of Clause (ix) of Section 7, When a suit to redeem a mortgage is decreed, and the defendant appeals, the subject-matter of the appeal is the plaintiff's right to redeem; in such a case also, the court-fee payable on the memorandum of appeal must be in accordance with the provisions of Clause (ix) of Section 7, that is, on the principal money expressed to be secured by the instrument of mortgage. But it may happen that the suit in its appeal stage may be of a different nature from what it was in the trial Court. Although the original suit may be one for redemption or foreclosure, there may be no question raised in appeal as to the right to redeem or to foreclose, and the appeal may merely be in respect of the amount which the trial Court has held to be payable. Such an appeal would not be one falling within the provisions of Clause (ix) of Section 7. In such an appeal, the plaintiff or the defendant merely challenges the amount to be paid or received without questioning the right to redeem or foreclose. To such an appeal, in our opinion, Clause (ix) of Section 7 does not apply, as the suit in its appeal stage has clearly changed its nature and the subject-matter of the appeal is the liability which is imposed by the trial Court to pay a certain sum, and which liability the appellant seeks to avoid. The memorandum of appeal would in such a case be governed not by Clause (ix) of Section 7, but by Article 1 of Schedule I to the Court-fees Act. It has to be remembered that Section 7 lays down the principles for the fixation of amounts on which the court-fee is payable. It does so merely for the purpose of reducing each claim which is referred to in that section to a money value for fiscal purposes. In a suit for redemption, for instance, it is not possible when the suit is instituted to find out exactly what amount the mortgagor Would be liable to pay in order to secure redemption. Interest may have to be calculated; there may have been repayment; the mortgagee may have effected certain improvements upon the land and ultimately the sum found to be payable by the mortgagor may be very considerably more than the principal money expressed to be secured by the instrument of mortgage. On the other hand, it may be found to be negligible. In either case, Section 7, Clause (ix), lays down that the court-fee must be paid on the principal money expressed to be secured by the instrument of mortgage. But these considerations do not arise when the actual liability has been determined by the trial Court, and an appeal is preferred only in respect of the amount found due by the trial Court. The case is somewhat analogous to a suit for accounts, provided for in Section 7, Clause (iv), in which the plaintiff is entitled to value his relief at any figure he likes and to pay court-fee thereon. But when after taking accounts the liability of the parties is ascertained and an appeal is preferred either to avoid that liability or to secure a decree for a higher amount than that ordered by the trial Court, the court-fee payable on the memorandum of appeal is on the subject-matter in dispute in the appeal, viz. the amount the liability of Which is sought to be avoided or the amount by which the sum decreed by the trial Court is sought to be increased. Accordingly, it was held in Kashiram Senu v. Ranglal Motilal : (1941)43BOMLR475 , that where a suit for accounts, in which the claim is valued at an arbitrary figure, results in a decree for a sum of money, the party appealing from the decree should value the claim in appeal at the amount of the decree, and not at the arbitrary figure, for purposes of paying the Court-fees.' It is not open to an appellant in such a case to pay the court-fees on an arbitrary valuation permitted by Section 7, Clause (iv), as he could do when he filed the suit for accounts in the trial Court. In the present case, the plaintiffs have secured a decree for redemption on payment of a sum of Rs. 10,150 to the defendant-mortgagees. The plaintiffs have appealed against that decree and in appeal they want to challenge the order of the lower Court that they are bound to pay to defendants Nos. 1 to 8 Rs. 9,150 in addition to their admitted liability of paying Rs. 1,000. Their claim to redeem the mortgaged property has been accepted by the lower Court, and in appeal, they merely seek to avoid liability to pay Rs. 9,150. Such an appeal cannot, in our view, be regarded as one falling within the purview of Clause (ix). of Section 7 and must be valued under Article 1 of Schedule I to the Court-fees Act, and the court-fee payable on the memorandum of appeal should be on the value of the subject-matter in dispute, i.e. on Rs. 9,150. This view of ours is undoubtedly in conflict with the note of Westropp C.J. in Special Appeal No. 385 of 1874 reproduced in Umarkhan v. Mahomedkhan and also with the decision in Gopal v. Gangaram. With very great respect to the learned Judges we are unable to accept the view taken in those cases. The opinions were expressed not after there had been proper arguments before the Court, but only on the notes put up by the Taxing Officers. As we have pointed out above, these decisions are somewhat in conflict with the view taken by Mr. Justice Melvill in Faki Mahomed v. Mana Kesajishet and by Mr. Justice Nanabhai Haridas in Robin v. Salem. As a matter of fact the view that we take now as to the proper court-fees payable on the memorandum of appeal is in consonance with the views expressed in the minutes of Melvill J. and Westropp C.J. reported at p. 45 of Umarkhan v. Mahomedkhan. The learned Judges realised the hardship that was caused by the view which they took of the law. They were, of course, then considering the liability of payment of a very heavy court-fee based on the principal money expressed to be secured by the instrument of mortgage even when a very small error in taking accounts was sought to be rectified in appeal. In the view that we take, such hardships will not arise, and the court-fees that will have to be paid on a memorandum of appeal will depend on what precisely is the nature of the relief that is being sought in appeal.

10. The view that we take, viz. that in an appeal from a decree in a redemption suit, when the right to redemption is no longer in dispute, and the appellant merely seeks to reduce the liability imposed upon him by the trial Court, the court-fees must be paid on the memorandum of appeal on the amount in respect of which he seeks to avoid liability, is one which has the support of almost all the High Courts in India. Some High Courts, such as the High Courts of Lahore, Allahabad and Madras, base it on the ground that the court-fee payable on the memorandum of appeal is governed by Article 1 of Schedule I. But even those High Courts, such as that of Lucknow and Nagpur which consider that the word 'suit' in Clause (ix) of Section 7 includes appeals, hold that when a suit to redeem has been decreed and the plaintiff in appeal merely challenges the amount to be paid, the court-fee payable on the memorandum of appeal will be on the subject-matter in dispute, i.e. on the amount in respect of which the appellant seeks to avoid liability.

11. In Lekh Ram V. Ramji Das I.L.R (1919) Lak. 234 the principal amount of the mortgage was Rs. 6,400, and the Court decreed redemption on payment of Rs. 62,293. The plaintiff appealed, valuing his appeal for the purposes of court-fees at Rs. 6,400. It was held that 'the proper Court-fee payable was ad valorem on the amount of the subject-matter in dispute in appeal under Article 1 of Schedule I of the Court-fees Act.' In this case, the Bombay ruling in Gopal v. Gangaram was disapproved. The view that we are taking was also taken by the Lahore High Court in the case of Har Lal v. Siri Ram A.I.R (1931) Lah. 633. In that case, the principal amount of money secured by the mortgage was Rs. 294, and the plaintiff obtained a decree for redemption on payment of Rs. 575-13-0. In appeal there was no dispute as regards the amount of redemption money that was payable; but the real contention was that the suit for redemption was barred. It was held that ' the subject-matter of the appeal in such a case would fall within the purview of Clause (ix) of Section 7.' The learned Judge Addison J. observed (p. 633):

It seems to me that a suit may change its nature in appeal and though the original suit may be for redemption, there may be no question raised in appeal as to the right to redeem and the appeal may be merely in respect of the amount which the Court of first instance has held to be payable. In such a case the subject-matter of the appeal would clearly not be the same as in a suit falling within the provisions of Clause (ix), Section 7, but court-fees would be payable ad valorem on the sum in dispute in accordance with the provisions of Article l, Schedule I,. Similarly if a redemption suit is decreed and the defendant-appellant merely challenges the right to redeem as in the present case, the court-fee payable on the memorandum of appeal ought also to be computed in accordance with the provisions of Clause (ix), Section 7; while if a plaintiff or defendant in appeal merely challenges the amount to be paid on redemption without questioning the right to redeem, the court-fees payable on the memorandum of appeal ought to be on the subject-matter in dispute i.e., on the additional amount claimed or the amount in respect of which the appellant seeks to avoid liability.

12. The Patna High Court held in the case of T.K. Rowling v. Lachmi Narain Jha (1916) 3 P.L.J. 443 that

In the case of appeals or cross-objections in suits for redemption or foreclosure, where the amount declared by the Court to be due at the date of the decree can be ascertained by reference to the judgment and decree, it is at that amount at which the appeal or cross-objection should be valued,...

13. The Madras High Court held in Reference under the Court feds Act, I.L.R (1905) Mad. 367 that Section 7(e), Clause (ix) of the Court-fees Act, applies only to 'suits' and not to appeals. In the case of appeals in mortgage suits Article 1 of Schedule I of the Act applies. The Court-fee in such cases is payable on the value of the subject-matter in dispute in the appeal and not of the subject-matter in dispute in the suit.

In this case again, the ruling of the Bombay High Court in Umarkhan v. Mahomed khan was dissented from. In the case of Sekharan Nair v. Kongot Bacharan Nair (1909) 20 M.L.J. 121 it was held that:

In suits for redemption and in appeals in those suits wherein the right to redeem forms the main question in dispute the subject-matter in dispute' far the purposes of Article 1, Schedule I, is the existence of the right to redeem, any question as to the amount payable as the condition of redemption being merely incidental to that right; and the value of the subject-matter is the principal money secured by the mortgage.

But the learned Judges observed (p. 128):-

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.

14. In the case of Nepal Rai v. Debi Prasad, there was a suit for redemption of mortgage, and the plaintiff obtained a decree for redemption on payment by him of an additional sum fixed by the decree. The plaintiff appealed upon the ground that such a sum was in excess of a specified amount of the sum rightly payable by him for redemption. It was held that 'the court-fee payable on the memorandum of appeal was to be calculated according to the sum which the appellant claimed to have deducted from his decree, and not, as in the case of a suit for redemption, according to the principal sum secured by the mortgage.' The same view was taken in Mahadeo Prasad v. Gorakh Prasad I.L.R (1908) All. 547 and it was affirmed by a full bench of that Court in Raghubir Prasad v. Shankar Bakhsh I.L.R (1913) All. 40. The head-note of the report in the latter case has already been quoted above.

15. The view that we take also receives support from the case of Sangat Bakhsh Singh v. Rawat Dijdeo Bakhsh Singh A.I.R (1922) Oudh 82. In that case the learned Judges held that ' Clause (ix) of Section 7 applied both to suits as well as to appeals but that it did not thereupon follow that where plaints are chargeable under Clause (ix) of Section 7 read with Article 1 of Schedule I, the memoranda of appeal filed against the decrees passed in such suits are invariably charged in the same manner, as a suit may change its nature in appeal and though the original suit may have been for redemption or foreclosure the appeal may be merely in respect of the amount made payable by the original Court. In such a case, the subject-matter in dispute in appeal would clearly not fall under the provisions of Section 7, Clause (ix).' The Judges there also laid down five propositions visualizing the various kinds of appeals that may arise from a suit for redemption or foreclosure. With respect, we are in agreement with the view expressed therein. The third proposition enunciated there applies to the case that we have to decide. It is to the following effect (p. 84):

If a suit to redeem or foreclose has been decreed and the plaintiff or the defendant in appeal merely challenges the amount to be paid or received without questioning the right to redeem or foreclose, the court-fee payable on the memorandum of appeal will be on the subject-matter in dispute that is on the additional amount claimed or the amount in respect of which the appellant seeks to avoid liability.

This case was followed by the same Court in Ram Sarup Singh v. Gaya Prasad The same view was expressed in Thakur Nirman Singh v. Sham Narayan Singh I.L.R. (1930) Luck 34 in which it was held:

In the case of appeals or cross-objections in suits for redemption or foreclosure in all cases in which the amount declared by the Court to be due at the date of the decree can be ascertained by reference to the judgment and the decree, it is that amount at which the appeal or cross-objections should be valued,...

16. Mr. Justice Vivian Bose also took the same view in Sheikh Rahman v. Balchand A.I.R (1937) Nag. 6. Although he held that the word 'suits' in Clause (ix) of Section 7 also included appeals, he considered that in an appeal like the present, that clause was not applicable. At p. 8 he observes as follows:

What then is to happen, when in an appeal neither the mortgagor nor the mortgagee challenges either the right to redeem, or the right to sell or foreclose, as the case may be, but only the amount of the price fixed for redemption? Such a relief is neither for foreclosure nor for sale nor is it for redemption; those are all admitted the only dispute is with reference to the difference between the amount fixed in the lower Court, and the amount claimed in appeal. The claim does not come under Clause (ix). Nor does it fall under any other provision in the Act. It is, therefore, not 'otherwise provided for, and so court-fees must be paid on the memorandum of appeal in accordance with Article 1, Schedule I. There is no difficulty in ascertaining the amount thus in dispute. It is a fixed and certain sum, and so court-fees must be paid ad valorem on that sum.

17. It would thus appear that the current of decisions of most of the High Courts in India is in favour of the view which we take and against the view taken by Westropp C.J. in the note printed in the report in Umarkhan v. Mahomedkhan and by Sargent C.J. in Gopal v. Gangaram. Our view brings this Court in a line with other High Courts in India, and we, therefore, hold that the court-fee payable on the memorandum of appeal must, in a case like the present, be governed by Article 1 of Schedule I of the Court-fees Act. The learned District Judge was right in calling upon the appellants to pay the court-fee on Rs. 9,150, the amount in respect of which the plaintiff-appellants sought to avoid liability.

18. Moreover, in the present case, one of the prayers was that the plaintiff-appellants should be held to be agriculturists, and that accounts should be taken on that basis. It has been held by this Court in Mahomedali v. Akbarali : AIR1935Bom69 that' where a decree is passed for payment of mortgage amount and an appeal is made for taking account of the mortgage under the provisions of the Dekkhan Agriculturists'- Relief Act, 1879, on the basis that the appellant is an agriculturist, the Court-fee for the appeal is to be assessed on the amount of the decree.' On this basis also the memorandum of appeal has to be valued on the amount of the decree which the trial Court has passed.

19. We are, therefore, of opinion that the view taken by the learned District Judge is correct, and the rule must, therefore, be discharged with costs. Costs in one set. The order of the lower Court rejecting the appeal for non-payment of court-fees is, however, set aside, and the applicants are given one month's time from the date of the receipt of the papers in the District Court, for payment of) the court-fees on the memorandum of appeal.


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