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Grandhi Pothanna Vs. Simhadri Satyananda Charyulu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1931Mad479; (1931)60MLJ698
AppellantGrandhi Pothanna
RespondentSimhadri Satyananda Charyulu and anr.
Cases ReferredJallaldeen Marakayar v. Vijayaswami I.L.R.
Excerpt:
- - if so much could be imported into the aforesaid clause in the court fees act, i may observe with great respect, especially considering the marginal note, that a suit for the redemption of a usufructuary mortgage wherein the recovery of possession of the property and also of surplus profits is claimed may well-nigh be deemed to be included in this clause. if in a suit for redemption the mortgagor seeks to recover not only the corpus of the property but also the profits which accrued therefrom and which were realised by the mortgagee in excess of what was due to him, such a suit may well be deemed to be one for the recovery of the property mortgaged within the purview of clause (ix) of section 7 of the court fees act......on the amount of the profits also.2. under rule 9 of order 34 of the code of civil procedure in a suit for redemption of a possessory mortgage the court may order an account to be taken of the profits in respect of the immovable property mortgaged and pass a decree in favour of the mortgagor for any amount found to have been received by the mortgagee as surplus profits over and above what was legitimately due to him. it is clear that a suit for redemption is a suit not only for the recovery of possession of the property but also of the surplus profits due to the mortgagor. that is the view taken by the allahabad high court in a number of decisions (vide husaini khanam v. husain khan i.l.r. (1907) 29 a. 471 and chhiddu singh v. jhanjhan rai i.l.r. (1922) 45 a. 154). a suit of this kind.....
Judgment:

Sundaram Chetty, J.

1. This revision petition has been filed by the petitioner-plaintiff against the order of the Subordinate Judge of Vizagapatam directing him to pay additional Court-fee in a suit for redemption of a mortgage brought by him. The plaintiff is the mortgagor. He now seeks to redeem the usufructuary mortgage created by him and to recover possession of the immovable property together with surplus profits which the mortgagee is alleged to have derived, from out of that property in excess of what was due to him towards the principal and interest. The principal amount of the mortgage bond is admittedly Rs. 1,500. The plaintiff asks for an account of the profits and estimates the amount of surplus profits due to him at Rs. 5,654. He has paid Court-fee on the sum of Rs. 1,500 which is the principal amount of the mortgage bond. The learned Subordinate Judge states that the right to redeem is distinct from the right to recover the profits and therefore Court-fee should be paid on the amount of the profits also.

2. Under Rule 9 of Order 34 of the Code of Civil Procedure in a suit for redemption of a possessory mortgage the Court may order an account to be taken of the profits in respect of the immovable property mortgaged and pass a decree in favour of the mortgagor for any amount found to have been received by the mortgagee as surplus profits over and above what was legitimately due to him. It is clear that a suit for redemption is a suit not only for the recovery of possession of the property but also of the surplus profits due to the mortgagor. That is the view taken by the Allahabad High Court in a number of decisions (vide Husaini Khanam v. Husain Khan I.L.R. (1907) 29 A. 471 and Chhiddu Singh v. Jhanjhan Rai I.L.R. (1922) 45 A. 154). A suit of this kind was regarded as a suit for redemption coming within the purview of Section 7, Clause (ix) of the Court Fees Act and the Court-fee payable in such a case would be regulated by the principal amount of the mortgage bond. According to this view, it must be held that the plaintiff has paid the requisite Court-fee. The learned Subordinate Judge is in error in stating that the right to redeem is distinct from the right to recover profits. On the other hand, the right to recover profits is incidental to the right to redeem a mortgage and cannot be said to be a distinct right unconnected with the right to redeem. But the difficulty is created by the wording of Clause (ix) of Section 7 of the Court Fees Act. In the marginal note, the words used indicate that the clause covers a suit for redemption of a mortgage. But the wording in the clause itself is as follows: 'In suits against a mortgagee for the recovery of the property mortgaged.' In construing this clause, a Division Bench of this Court in a case reported in Kodi Venkatappa Row v. Bamala Suryanarayana (1912) 12 M.L.T. 493 has observed that according to the language of this clause a suit for the recovery of possession of the mortgaged property is alone covered by it. Some doubt has been expressed as to whether this clause would cover a suit in which not only recovery of possession of the property is sought but also recovery of the surplus profits. The question does not, however, seem to have been finally settled beyond expressing a doubt as to the interpretation of this clause. In the case of a ' simple mortgage it is observed by Sadasiva Aiyar, J., in the same decision that a suit by the mortgagor to redeem a simple mortgage would be a suit for the recovery of the property mortgaged within the meaning of this clause, because the relief to be given to the mortgagor in such a suit might be the reconveyance to him of the interest which was vested in the mortgagee. If so much could be imported into the aforesaid clause in the Court Fees Act, I may observe with great respect, especially considering the marginal note, that a suit for the redemption of a usufructuary mortgage wherein the recovery of possession of the property and also of surplus profits is claimed may well-nigh be deemed to be included in this clause. Moreover, in the case of a usufructuary mortgage, not only the corpus of the property but also the future profits derivable therefrom should be taken to have been secured in favour of the mortgagee for the realisation of his mortgage debt. In one sense, the property mortgaged in such a case would be the corpus of the property and also the future profits derivable therefrom. If in a suit for redemption the mortgagor seeks to recover not only the corpus of the property but also the profits which accrued therefrom and which were realised by the mortgagee in excess of what was due to him, such a suit may well be deemed to be one for the recovery of the property mortgaged within the purview of Clause (ix) of Section 7 of the Court Fees Act. I am therefore inclined to hold that the present suit is covered by Clause (ix) of Section 7 of the Court Fees Act, and therefore the proper Court-fee payable by the plaintiff is on the principal amount secured by the mortgage bond and no additional Court-fee need be paid on the amount of surplus profits sought to be recovered after an account is taken.

3. The suit has been filed in the Sub-Court and the question next arising is, whether the valuation of the suit for purposes of jurisdiction would be the same as the valuation for purposes of Court-fees. A suit for redemption is not a suit covered by Section 8 of the Suits Valuation Act, nor is it one of those suits in respect of which the Local Government can make rules for determining the jurisdiction value under the power vested in it by Section 3 of the Act. We have therefore no guide in the Suits Valuation Act so far as the present suit is concerned. But the question is covered by authority so far as this High Court is concerned. The Full Bench decision in Zamorin of Calicut v. Narayana Bhatta I.L.R. (1882) 5 M. 284 is relied on in a later case reported in Jallaldeen Marakayar v. Vijayaswami I.L.R. (1915) 39 M. 447 : 29 M.L.J. 142 wherein the learned Judges have observed that the authority of the aforesaid Full Bench decision is unaffected by the Suits Valuation Act (VII of 1887). The view taken in both those decisions is to the effect that the principal amount of the mortgage in a suit for redemption must be taken as determining the jurisdiction under the Civil Courts Act. Following these rulings, I must hold that the principal amount of the mortgage in the present case should be taken as the criterion for determining the jurisdiction of the Court also. While holding that the plaint is properly stamped, I should direct the Subordinate Judge to have the valuation of the plaint for jurisdiction purposes amended in the aforesaid manner and, on such amendment, to return the plaint for presentation to the proper Court.

4. In the circumstances of the case, I would direct the parties to bear their own costs of this petition. The costs of the suit incurred in the Sub-Court will be costs in the cause.


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