Govindan Nair, C.J.
1. The question of court-fee payable on the appeal memorandum In an unnumbered second appeal from the decree passed by the District Court in A. S. No. 452 of 1969 has come up before us on an order of reference by a Division Bench to which the question had been referred by order dated 26th September 1973. The order of reference to the Division Bench was made because the correctness of the observations of Narayana Piliai. J., in the decision in Ammu Brahmaniamma v. Gopalan 1973 Ker L. T. 726 was doubted. That observation is extracted in the order of reference and runs as follows:--
'But an appeal by a defendant in that suit stands on a different footing. If there is a decree against him. for future mesne profits as he has to avoid that decree he has to pay court-fee on the mesne profits from the date of suit up to the date of appeal.'
2. The question that was considered by Narayana Pillai. J., was whether in a plaintiff's appeal from the decree dismissing a suit, court-fee must be paid in relation to the mense profits that had accrued due from the date of suit upto the date of appeal. Relying on the decision of the Supreme Court in State of Maharashtria v. Mishri Lal Tarachand Lodha reported in AIR 1964 SC 457 it was held that court-fee need not be paid. The observations we have extracted followed though the question of court-fee ayable on an appeal by a defendant did not arise for consideration before Narayana Pillai, J. The decisions in Chacko Chacko v. Varghese Varghese reported in 1955 Ker LR 168 = (AIR 1955 Trav Co 167) and Ulahannan Kurien v. Uthu-ppu Varkey reported in 1955 Ker LT 377 = (AIR 1954 Trav Co 174) were referred to and the learned Judge observed that he disagreed with the views expressed therein.
3. When a Division Bench heard the question, the attention of the Bench was drawn to another decision of this Court in Muhammed Kassivan Kadija Ummal v. Nanan Sathyadasan reported in 1971 Ker LJ 375 wherein Madhavan Nair. J., in dealing with a different question altogether observed:--
'Under Section 52 of the Court-fees Act, the appellant is to Pay only such court-fee as is payable on a plaint for the reliefs claimed in appeal. The decree under appeal being one for recovery of landed property with mesne profits at Rs. 1,000/- per annum, appellants have to Pay court-fee on the market value of the property and on the mesne profit decreed.' (The underlining is ours).
4. Though the above observations were obiter the Division Bench felt that the question must be considered by a larger Bench and that is how the matter has come up before this Full Bench.
5. The facts of the case are these; The appellant was the 4th defendant in a suit for recovery of property with mesne profits past and future. No court-fee had been paid by the plaintiff in the suit for mesne profits that had accrued UP to the date of suit. There was a specific relief for mesne profits from the date of suit. The trial Court decreed the suit with mesne profits at the rate of Rs. 100/- per annum from date of suit up to date of recovery of the property. The appellant before this Court was also the appellant before the lower appellate Court. In that appeal he questioned the decree for recovery, and challenged the decree for mesne profits decreed but paid court-fee on the appeal memorandum on the market value of the property and the value of profits that had accrued from the date of suit till the date of appeal before the lower appellate Court. The appeal having been dismissed, the second appeal before this Court was taken but in this appeal court-fee had been paid only on the market value of the property. The appeal memorandum contained a ground, around No. 12, challenging the grant of relief to the plaintiff by awarding mesne profits from date of suit. Counsel for the appellant made it clear at the beginning that that ground may be deleted and an applica-tion has been filed for deleting the ground. We by separate order allowed that application. The appeal memorandum now stands with no specific relief in relation to the mesne profits. It was therefore submitted before us that the subject-matter of the appeal is only the right of the plaintiff to recover the property and that full court-fee having been paid in relation to that subject-matter of the appeal on the market value of the property nothing more is payable. Section 52 of the Kerala Court-fees and Suits Valuation Act, 1959 had been relied on. That section may be extracted with the proviso and the explanation:
'52. Appeals. The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal :
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.
Explanation.-- (1) Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance.
Explanation.-- (2) Costs shall not be deemed to form part of the subiect-matter of the appeal except where such costs form themselves the subiect-matter of the appeal or relief is claimed as regards costs on grounds additional to. or independent of, the relief claimed regarding the main subject-matter in the suit.
Explanation.-- (3) In claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject-matter of the appeal except where such interest is relinquished.
Explanation.-- (4) Where the relief prayed for in the appeal is different from the relief prayed, for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal.
Explanation.-- (5) Where the market value of the subject-matter of the appeal has to be ascertained for the purpose of computing or determining, the fee payable, such market value shall be as certained as on the date of presentation of the plaint.'
6. The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal. Explanation (4) indicates that the subject-matter of the appeal need not be identical with the subject-matter in the Court of first instance and Explanation (2) shows that court-fee is payable in relation to the decree for costs only when the subject-matter of the appeal or relief claimed as regards costs are on grounds additional to or independent of the relief claimed regarding the main subject-matter of the suit. These Explanations are no doubt, not applicable to the question at issue but are referred to only as indicative of certain principles. In this regard, we may also advert to Explanation (3) which by a deeming provision has included as part of the subject-matter of the appeal, interest subsequent to the institution of the suit till the date of the decree indicating thereby that in the absence of the deeming provision such interest would not be part of the subject-matter of the appeal.
7. Dealing with this type of interest, the Supreme Court in its decision in AIR 1964 SC 457 expressed the view that, no court-fee is payable in an appeal by the defendant questioning the right to recover the money claimed from that defendant on the interest that had accrued from the date of suit till the date of appeal. Paragraphs 12. 14, 15 and 16 of the above decisions are relevant and we extract those paragraphs;
'(12) The amount of court-fee payable, therefore, depends on the amount or value of the subject-matter in dispute in appeal. The defendant-appellant valued his claim at Rs. 13,033-6-6 and paid the requisite court-fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033-6-6 --against him on account of principal and interest due UP to the date of the institution of the suit. He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4 per cent per annum on a sum of Rs. 10,120/- as had been awarded under the decree. Whether his appeal is competent or not without his including this amount in his claim in appeal, is a question different from that relating to the value of the subiect-matter in dispute in appeal. He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject-matter in dispute in appeal covered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree. This makes it further plain that he does not Question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded. It is not possible to sav. in these circumstances, that the value of the subject-matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree.
(14) On what principle are these amounts not treated as forming part of the value of the subject-matter in dispute in appeal Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the point in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims not based on ,anv asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression 'subject-matter in dispute in plaint or memo of appeal.'
(15) There appears no good reason to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject-matter in dispute in appeal. It is true that costs of a suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiffs claim though its award is within the discretion of the Court, tout this will not justify the distinction. The costs too. and particularly the costs on account of court-fee and counsel's fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression 'amount or value of subject-matter in dispute' in Article I, Schedule I, of the Act and that the plaintiff has no right to get any of these amounts from the defendant though the Court may in its discretion, allow future interest and costs according to the circumstances of the suit in view of Sections 34 and 35, Civil P. C. This principle, equally applies to the non-inclusion of the decreed amounts of pendente ject-matter in evaluating the subject-matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has no right or claim for that amount against the defendant.
(16) It is obvious that if the defendant-appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a wav that if the plaintiff's claim is dismissed in toto, he will not be awarded any future interest or any costs of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court. The defendant-appellant has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject-matter in the trial Court he will have to Pay court-fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression 'value of the subject-matter in dispute in appeal'. This has been the basis of the various decisions of the Courts in which court-fee has been demanded on the amount of costs of future interest.'
8. In view of the deletion of ground No. 12 in the Original appeal! memorandum it is clear that the appellant does not dispute, independently of the claim that recovery should not be ordered, the liability for mesne profits or its quantum. Based on what has been stated ,bv the Supreme Court in the last part of paragraph 16 of the judgment which we have extracted, the appellant is not bound to pav court-fee on the mesne profits that had accrued from the date of suit till the date of the appeal memorandum. As has been pointed out in paragraph 12 of that judgment, we are not concerned with the question whether this appeal is competent or not because of the non-inclusion of a ground challenging the mesne profits after suit, though it appears to us that there is no such incompetency.
9. In the light of the above, we are unable, with great respect, to agree with the observations of Narayana Pil-lai, J., in 1973 Ker LT 726 which we have extracted and with what has been stated by Madhavan Nair. J.. which also we have extracted above.
10. The appellant has the right to choose the subject-matter of the appeal. At times this selection may result in the appeal being dismissed as incompetent tout if the appeal is sustainable, he cannot be compelled to include in the subject-matter of the appeal memorandum something which he does not want to become part of the subject-matter' of the 'appeal. The case of future interest stands in a similar footing to that of future mesne profits; both are in a sense, at the discretion of the Court for. the trial Court can always decline to go into the question of future mesne profits and refer the matter to a fresh suit and in the case of interest, there is the larger discretion to either grant it or refuse it. But though there is this difference in the extent of the discretion both mesne pro-Jits and future interest depend on the existence of another right: to recover the property, in the case of mesne profits, in the wrongful possession of the defendant, and in the case of interest in the right tq recover money from the defendant which the defendant owed to the plaintiff. It is impossible to conceive of a liability for mesne profits without an antecedent obligation to surrender a property of another and a right to an interest or an obligation to pay interest without a right to claim the principal amount. The liability to mesne profits or future interest is so dependent on the right to the property or the right to the money that the right cannot exist without the right to recover property or to recover money. When the defendant is un-intei-ested in the quantum of the mesne profits decreed and therefore does not challenge the quantum, and uninterested in challenging the obligation to pay the mesne profits independent of and unconnected with the right to recover the properties, we conceive that he need not pay court-fee separately on the mesne profits. The subject-matter in this appeal relates to the obligation to surrender the property. The appellant has asserted that he has no such obligation. If he has no such obligation the question of mesne profits will not arise as it springs from that obligation and entirely dependent on it.
11. The decisions of this Court in 1955 Ker LR 168 = (AIR 1955 Trav Co 167) and 1955 Ker LT 377 = (AIR 1954 Trav Co 174) have dealt with entirely different aspects. In the earlier decision the question was the liability of the plaintiff who had appealed from a decree which had not allowed the full extent of the mesne profits claimed by him to have the matter agitated in appeal without payment of court-fees for the difference, between the amount decreed towards mesne profits and the additional amount claimed in appeal. If we may say so with respect, it has been rightly held that the plaintiff-appellant was liable to pay court-fee on the difference of the amount. It must be noted herein that the plaintiff's right to recover the property had been decreed in favour of the plaintiff, the only subject-matter of the appeal was the quantum of the mesne profits to be decided. Similar is the decision in 1955 Ker LT 377 = (AIR 1954 Trav Co 174). Though the relief for recovery of possession of the property claimed by the plaintiff had been refused, the alternative relief for a decree for a sum of Rs. 2,800/- charged on the property had been allowed with interest at the rate of 4%. The plaintiff had claimed interest at the rate of 12%. The question in appeal was whether the plaintiff-appellant who had claimed in appeal additional 8% interest should pay court-fee on the difference. It was ruled, and we think with respect, rightly, that the plaintiff should pay the court-fee. Those are cases which will fall within the exception Pointed out by the Supreme Court in the passages that we have already extracted, namely, where the quantum of the interest or the mesne profits decreed was challenged and formed the subject-matter of the appeals.
12. In the light of the above, we hold that the court-fee paid on the appeal memorandum is sufficient. The appeal memorandum will be numbered and the appeal taken on the file of this Court.