Kernan, Innes and Kindersley, JJ.
1. Both the Civil Courts Act III of 1873 and Court Pees Act VII of 1870 deal with the 'value of the subject-matter of suit,' and the Act of 1873 refers to the Act of 1870.
2. It seems reasonable, therefore, that, when a particular subject-matter is valued in one Act, the same value ought to he adopted in respect of the same matter in the other Act, unless contrary to some special provision, or unless there is manifest inconsistency in so doing. There is special reference in Section 141 of the Civil Courts Act to Section 7, Clause 5,2 of the Court Fees Act, and it may be argued that, if the value in the Court Fees Act was intended to be adopted, there should be some particular provision to that effect.
3. This may be admitted. But the reason of that special reference was that the valuation of the particular subject, land, was peculiarly difficult, and, as the mode of valuation of it was settled already for stamp purposes by the Court Fees Act, and this was in accordance with the pre-existing mode of valuation for jurisdiction (see Thiagaraja Mudali v. Ramanuja Charry) 6 M.H.C.R. 151 that mode of valuation was adopted and the reference to the Court Fees Act given as more convenient than that of the old regulations. Section 12, limiting the Munsif's jurisdiction, refers in general terms to the 'value' of the subject-matter, and, as there is already an ascertained value in the Court Fees Act for the subject-matter in this case (Section 7, Clause 93), such value should, I think, be adopted.
4. Then, if the instrument of mortgage does not expressly secure the value to be allowed for improvements, I think that the amount of such improvement cannot be taken into account in ascertaining the amount for the purpose of jurisdiction.
5. The language of Clause 9, Section 7, Court Fees Act, is precise 'principal amount expressly secured.' It does not calculate arrears of interest, if any, nor does it calculate any improvements. For the purposes of Court fees, a fixed line is drawn, probably to meet some such difficulty or class of cases like the present. 1 do not see why the same guide-line should not be adopted for jurisdiction in the Civil Courts Act. There seems very good reason for this view; for the mortgagor may not know the value of the improvements (as in this case he said Rs. 75 was the amount, whereas 1,400 rupees is the amount ascertained). If he does not know the amount, how can he fix it for jurisdiction, and, if so, how can he know the Court in which he should file his suit? If he files a suit, as in this case, in an honest belief, though mistaken, as to improvements being of small value is he to bear the costs of that suit because the improvements and principal money are over the jurisdiction, and to begin de novo in another Court another suit at further cost ?
6. Whether these reasons are sound or not, the Act is clear 'principal amount expressed in the instrument of mortgage.' I do not understand that the improvements become secured by the kanarn, certainly not expressly, but the mortgagor cannot redeem without paying the improvements. I think, therefore, that the Munsif was right and the Subordinate Judge wrong, and I would reverse the decree of the latter and remand the appeal for trial.
7. The defendants should pay the costs of this appeal.
Charles A. Turner, Kt., C.J. (Muttusami Ayyar, J., concurring).
8. The plaintiff instituted this suit in the Munsif's Court claiming to redeem lands held by the defendants on kanam on payment of Rs. 1,822-13-9, the amount of the original mortgage debt and further advances, and Rs. 75, the value of improvements. The defendants, among other pleas, urged that the subject-matter of the suit was not properly valued, and that the jurisdiction of the Munsif would be ousted, if it were properly valued; they also pleaded that the sum to be paid on redemption in respect of improvements was Rs. 4,500.
9. The Munsif considered that the suit was a suit for land within the meaning of that term in the Civil Courts Act, Section 14, and that, if the value were estimated as in that case directed, the suit was within his jurisdiction. He proceeded accordingly to try it and found that, in addition to the mortgage moneys, the defendants were entitled to be paid Rs. 1,486-7-2 for improvements. He passed a decree for the redemption of the lands on payment of this sum and of the principal moneys, amounting together to Rs. 3,309-4-11.
10. The Subordinate Judge on appeal has held that the Munsif having found the amount to be paid on redemption was Rs. 3,309-4-11, had no jurisdiction to pass a decree, and on this ground he dismissed the suit.
11. It is contended on second appeal that the Subordinate Judge was in error in holding that the suit was not within the jurisdiction of the Munsif, and that, if his decision on this point were right, he should not have dismissed the suit.
12. The question whether suits for the redemption of land from mortgage are to be regarded as suits of which the subject-matter is land and fall within the provisions of the Madras Civil Courts Act, Section 12, was considered by this Court in second appeal 201 of 18784 where a suit was brought in the Munsif's Court to redeem an estate from a mortgage debt of Rs. 5, 714-4-7, and it was held by the late Chief Justice and Mr. Justice Innes, that the suit was not a 'suit for land' within the meaning of that term in the Civil Courts Act, and that the valuation for the purposes of jurisdiction must be taken to be the principal , sum secured by the mortgage.
13. That decision was considered on review by three Judges.5
14. I held that, inasmuch as it appeared the framers of the Madras Civil Courts Act had in view the provisions of the Court Fees Act, and that the Court Fees Act contained provisions for the valuation of suits for redemption of mortgage, distinct from the provisions for the valuation of suits for the possession of land, it could not have been the intention of the Legislature to regulate jurisdiction in suits for the redemption of mortgage by the provisions relating to suits for the possession of land, and that in suits for redemption, the subject-matter is the charge and not the land, which may or may not be in the possession of the mortgagor, and to which his title may or may not be disputed. I retain the opinion I expressed in that case. If I am right in holding that, in suits for the redemption of mortgage, the subject-matter is the charge and not the land mortgaged, the suit before the Court is not governed by the provisions of Section 14, Madras Civil Courts Act.
15. By the custom of the country, a condition is attached to all kanam demises--that the mortgagor shall pay the value of improvements made by the mortgagee during the term before he can redeem; the repayment of moneys laid out on improvements is thus secured by the mortgage in the same manner as is the repayment of the principal moneys. Although the value of these improvements cannot be ascertained at the time the kanam is made, it must, in my judgment, be regarded as part of the principal in the same manner as moneys would be so regarded which, under an agreement in that behalf, are advanced subsequently to the date of the mortgage, and the valuation of the suit for redemption must, for the purpose of jurisdiction, include the value of improvements.
16. It is true that, until the Court has ascertained what that value may be, the mortgagor seeking to redeem has to estimate the value before he can decide to which Court he must apply for relief, and it may be that his estimate will be erroneous. This is a grave inconvenience, but it is inseparable from the system of regulating jurisdiction by value, unless the Legislature sees fit to make an arbitrary rule and, as yet, they have not done so.
17. The Subordinate Judge then, in my judgment, rightly held that the Munsif had not jurisdiction to pass a decree, but, instead of dismissing the suit, he should have returned the plaint to the plaintiff for presentation in the proper Court. I would vary his order accordingly.
1 Valuation of suits for immoveable property.
[Section 14: When the subject-matter of any suit or proceeding is land, a house or a garden, its value shall, for the purposes of jurisdiction conferred by this Act, be fixed in manner provided by the Court Fees' Act 1870, Section 7, clause V.]
2 Computation of foes payable in certain suits.
[Section 7: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
For possession of land, houses, and gardens.
Clause V: In suits for the possession of land, houses, and gardens-according to the value of the subject-matter; and such value shall be deemed to be-where the subject-matter is land, and
(a) Whore the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government,
or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable ;
(b) Where the land froms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid ;
and such revenue is settled, but not permanently-five times the revenue so payable;
(c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue,
and not profits have arisen from the land during the year next before the date of presenting the plaint-fifteen times such nett profits;
but where no such nett profits have arisen therefrom-the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood,
Proviso as to Bombay Presidency.
(d) Whore the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned-the market-value of the land ;
Provided that in the territories subject to the Governor of Bombay in Council, the value of the land shall be deemed to be-
(1) Where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government-a sum equal to five times the survey-assessment ;
(2) Where the land is held on a permanent settlement for any period exceeding thirty years, and pays the full assessment to Government-a sum equal to ten times the survey-assossment; and
(3) Whore the whole or any part of the annual survery-assessment is remitted-a sum computed under paragraph (1) or paragraph (2) of this proviso, as the case may be, in addition to ten times the assessment, or the portion of assessment so remitted ;
Explanation.-The word estate as used in this paragraph, moans any land subject to the payment of revenue, for which the proprietor or a farmer or ryot shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue.]
3 [Section 7: q. v. supra I.L.R. 5 Mad. 285
Clause 9: In suits 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 To foreclose. conditional sale, to have the sale declared absolute-
According to the principal money expressed to be secured by the instrument of mortgage.] * * * * *
4 Judgment in Second Appeal 201 of 1878 before Morgan, C.J., and Innks, J. (August 3rd, 1878).
This suit was filed before the Court of a District Munsif to recover mortgaged land on payment of the mortgage amount Rs. 5,714-4-7.
The question raised by the second appeal is whether the suit was within the pecuniary limits of the jurisdiction of a District Munsif. By the Madras Civil Courts Act, Section 12, the jurisdiction of a District Munsif is limited to suits of which the amount or value of the subject-matter does not exceed Rs. 2,500; and by Section 14, when the suit is for land, the value is to be determined for the purpose of jurisdiction as provided in the Court Fees Act, 1870, Section 7, Clause V. But Clause IX of the section last mentioned provides that in suits against a mortgagee for the recovery of property mortgaged, the valuation is to be according to the principal money expressed to be secured by the instrument of mortgage. In the present case the principal sum secured was Rs. 5,714-4-7 which was very much in excess of the limits of the District Munsif's jurisdiction. And we have no alternative but to dismiss the suit with costs throughout to be paid by the plaintiff.
This decision was reconsidered on review by a Full Bench (Turnek, C.J., Innes and Forbes, JJ.) on September 19th, 1879,
5 The following Judgments were delivered:
TURNER, C.J.--Section 14 of the Civil Courts Act declares that whore the subject-matter of a suit or proceeding is land, house or a garden, its value shall, for the purposes of jurisdiction conferred by that Act, be fixed in the manner provided by the Court Pees Act, 1870, Clause 7, Section V. The suit in which this question arises is brought by the plaintiff to redeem land on payment of Rs. 5,714.-7-4, the amount of the debt, for which it is alleged the land was made over to, and is retained by, the defendant as security; the suit is then a suit to recover the property redeemed from the charge of Rs. 5,714-4-7. The framers of the Madras Civil Courts Act refer to, and must therefore have had in mind, the provisions of the Court Fees Act. The latter Act imposing fees on suits and other proceedings according to the value of the subject-matter declares that, in suits for the possession of lands, houses, and gardens, the value of the subject-matter shall be ascertained in the manner therein prescribed, but it distinguishes between suits brought simply for possession of lands, etc., and suits brought against mortgagees for the recovery of the property mortgaged, and declares that the fees payable under the Act shall be computed according to the principal money secured by the instrument of mortgage. It is therefore clear that the framers of the Court Fees Act regarded the subject-matter of a suit for redemption as being not the property mortgaged but the charge that existed on it. Is not this view correct? The existence of the charge is of the essence of the claim in such suits, the raising of any question as to the title to the land is an incident.
The expression 'suit for land' in Section 14, Act III of 1873 (Madras), must, in my judgment, bear the same interpretation as the same expression in Section 7, Clause V of the Court Fees Act, and in this view the judgment of the Division Bench is not open to objection on the ground suggested.
INNES, J.--I do not feel sufficient confidence in the view 1 entertained after the judgment was pronounced upon which this reference arises to justify me in dissenting from the opinion of the Chief Justice that that judgment was sound. I will, however, state the reasons which induced me to question its soundness. The object of a suit is that which the plaintiff aims recovering, and in suits for redemption of mortgage his object is clearly to recover the land. As ancillary to this, it is no doubt necessary for him to clear the charge upon the land, but the object of clearing the charge on the land is subordinate to the object of recovering the land. Further, Section 11 of Act III of 1873 is a provision which was introduced for the very purpose of clearly laying down the rule upon a question that had arisen out of the Stamp Act of 1860 as to whether that Act and Act VII of 1870 regulated the value of suits for the purpose of determining the jurisdiction.
The discussion of this question is to be found in pages 151 to 164 of Vol. VI of the Madras High Court Reports.
Under the former enactments, as will be seen from the judgments in the cases there reported, the valuation had boon fixed upon property distinguished as follows:
(1) Land (Lakhiraz and Malguzari).
(2) Suits for money or the value of personal property.
(3) Suits for houses, tanks, grounds, or other real property not being Malguzari or Lakhiraz.
This classification was obviously intended to be exhaustive, and under it certainly a suit of the nature of that before us would be classed under the head of a suit for land.
Act III of 1873 repealed the existing provisions upon this subject contained in a series of Regulations and Acts extending from 1802 to 1843, and enacted in its 14th Section that, when the subject-matter of a suit is land, a house, or a garden, its value shall, for the purposes of the jurisdiction conferred by this Act, be fixed in the manner provided by the Court Fees Act, 1870, Section 7, Clause V.
It appeared to me that it was intended by this section to retain the pre-existing classifi-eation of suits, ana if that were so, I think the suit before us must be regarded as a suit for land. But unquestionably the valuation of such a suit would be far more accurately made by applying to it the provisions of the Court Fees Act, Section 7, Clause IX, and though I still entertain doubts of the proper constructions of the words 'suits for land,' I am not prepared after consideration, to say that our conclusion was wrong that the valuation of a suit to redeem a mortgage is governed by Clause IX, Section 7, of Act VII of 1870.
Forbes, J.--I think the case is not free from difficulty. In paragraph 14 of the Civil Courts Act the Legislature prescribes the mode of fixing the value for the purpose of determining the jurisdiction, when the subject-matter of the suit is land, a house, or a garden, and refers the Court to Clause V of Section 7 of the Court fees Act, How then is the value for jurisdiction to be determined in other cases? In the absence of express provision, a Court should, I think, allow itself to be guided by the enactment, which governs in the case of a suit for land, and which, though primarily framed for a different, viz., a fiscal, purpose contains general directions, on the subject of valuation. The Court Fees Act distinguishes suits in which the subject-matter is land (Clause V, and those brought against a mortgagee for redemption (Clause IX), and 1 think we should follow the distinction.