1. The question which has been referred to this Bench is what is the proper Court-fee in a pre-emption suit, when the property in respect of which pre-emption is claimed is already subject to a usufructuary mortgage which the pre-emptor does not seek to disturb.'
2. The material facts are shortly as follow: The plaintiff claimed to pre-empt a sale of the equity of redemption in certain property. The sale was made on the 3rd December 1906 by the defendants Nos. 1 and 2 to the other defendants. The sale consideration as stated in the deed was Rs. 20,000 but the plaintiff alleged that the real consideration was Rs. 5,000. The property was mortgaged in 1877 by way of usufructuary mortgage to secure Rs. 79,000. The plaintiff does not seek possession of the land. He admits that possession must remain in the hands of the usufructuary mortgagee until the mortgage is redeemed. He came into Court seeking merely to enforce his right to pre-empt the equity of redemption. He paid a Court-fee of Rs. 275 which was calculated upon Rs. 5,000 at which he valued his suit. The Court of first instance held that the plaintiff must pay a Court-fee valued upon the land itself according to the provisions of Section 7 para. 5 of the Court Fees Act VII of 1870. The consequence was that the plaintiff paid an additional Court-fee of Rs. 975. Having paid this sum his suit was dismissed by the first Court on the ground that the plaint was not properly stamped when presented; and the proper Court-fee having been paid after the expiry of the period of limitation, the suit was barred. The plaintiff appealed and only paid a Court-fee upon Rs. 5,000. A second appeal was subsequently presented to the High Court which is still pending. The only question before this Bench is the question above mentioned, viz. what is the proper Court-fee, having regard to the nature of the suit. The plaintiff contends that it is not equitable that he should be compelled to pay the same Court-fee when he seeks only to enforce his right of pre-emption in respect of the equity of redemption as he would have to pay if he were seeking possession of the land by 'right of pre-emption freed and discharged of all incumbrances. It has been pointed out that the real value of what the plaintiff seeks to pre-empt is Rs. 5,000 while the land freed and discharged from incumbrances is probably worth near Rs. 1,00,000. A ruling was cited to us viz., Ram Raj Tewari v. Girnandan Bhagat 15 A. 63. That was a suit for possession by a landlord against a fixed-rate tenant on the allegation that the tenant defendant had broken some of the conditions of the tenancy and that the plaintiff was, therefore, entitled to possession. The suit was clearly a suit coming under Section 7 para. 5 of the Court Fees Act. A Bench of two Judges held that the mode of valuation provided by the 5th para, of Section 7 was inapplicable and allowed a Court-fee to be paid upon the value of the interest which the plaintiff was seeking to recover, viz., the tenancy, It is clear, the, Court felt the difficulty of charging the plaintiff the same Court-fee when merely seeking to evict the tenancy as would be charged if full proprietary was claimed. An amendment has been introduced by Act VI of 1905 providing expressly for cases in which a landlord seeks to recover possession from the tenant and the Court-fee payable has been greatly reduced but so far as suits for pre-emption are concerned, we still, however, must look to the provisions of Section 7 para. 6 of the Court Fees Act in answering the present question 'what is the proper fee'
3. No doubt if any ambiguity exists the act should be read most favourably to the suitor. The question is. 'Is there any ambiguity?' Section 7 para. (6 deals with suits to enforce a right of pre-emption. It clearly and expressly says that the Court-fee is to be according to the value of the land, house, or garden, in respect of which the right is claimed.' It does not say that the Court-fee is to be according to the value of the interest in the property pre-empted. It is to be according to the value of the land in respect of which' the right is claimed. In the present case the right of pre-emption is claimed unquestionably in respect of the entire land, subject though it be to the mortgage of 1877. Para. 6 goes on to say that the value of such land, house or garden, is to be computed in the manner provided by para. 5. It is said that this operates very hardly upon the present plaintiff. This is, no doubt, true, but it seems to us that the hardship in his case is no greater than the hardship to a plaintiff who seeks to recover possession of immovable property subject to incumbrances. Take for example a suit between two persons, rival claimants to the estate of a deceased owner, the property being subject to incumbrances which both parties admit to be due and binding upon them. It has not been contended that in such a suit the plaintiff would not be obliged to pay a Court-fee on the value of the land, without any allowance or credit being given for the incumbrances. It may be that there is reason for amendment of the Court Fees Act. We think that the provisions of the Act are free from all doubt and ambiguity and that the Court-fee must be assessed according to the provisions of Section 7 para. 6 upon the value of the property computed in accordance with Section 7 para 5.
4. This is our answer to the reference.