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Radhakrishna Chetty and anr. Vs. Miss Teckla Schomberg - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad115; (1940)2MLJ867
AppellantRadhakrishna Chetty and anr.
RespondentMiss Teckla Schomberg
Cases ReferredChhiddu Singh v. Jhanjhan Rai I.L.R.
Excerpt:
- - satyananda charyulu air1931mad479 ,held that the value which the plaintiff had placed on her relief for redemption would cover the relief in regard to surplus profits as well and that the latter need not be valued separately......that the fee would be chargeable for each subject separately. but the question is whether the relief claimed by the plaintiff for surplus profits is a distinct subject.3. reliance was placed by learned counsel for the petitioners in this connection on nilakantan nambudripad v. ananthkrishna aiyar : (1906)16mlj462 , but that case does not bear out his contention as two distinct alternative reliefs forming different matters were being claimed in that case and the court-fee was required to be paid in respect of each relief separately. the claim for redemption in that suit was based upon the alleged right of the plaintiff as a mortgagor while the alternative relief was based on a contract for a further mortgage which was distinct from the earlier mortgage right. as the alternative.....
Judgment:

Abdur Rahman, J.

1. The only question to be decided in this revision relates to the jurisdictional value placed by the plaintiff in her suit for redemption in which she asked for certain surplus profits to be decreed in her favour in addition. The lower Court relying on Jalaldeen Marakayar v. Vijayasami (1915) 29 M.L.J. 142 : I.L.R. 39 Mad. 447 and Grandhi Pothanna v. Satyananda Charyulu : AIR1931Mad479 , held that the value which the plaintiff had placed on her relief for redemption would cover the relief in regard to surplus profits as well and that the latter need not be valued separately. The defendants have filed the present revision to test the correctness of this order.

2. Since the value, determinable for the computation of. court-fees and for purposes of jurisdiction, is, under the provisions of Section 8 of the Suits Valuation Act, to be the same, the determination of the latter would depend on the decision as to the requisite court-fee required on the present plaint. Learned Counsel for the petitioners contends that the plaintiff is asking for two 'distinct subjects' within the meaning of Section 17 of the Court-Fees Act and the plaint is therefore chargeable with the aggregate amount of the fees to which the plaint would be liable, when embracing either of such subjects separately. The court-fees are, unless otherwise provided, to be paid ad valorem and if the plaintiff is asking for two distinct subjects, it would follow that the fee would be chargeable for each subject separately. But the question is whether the relief claimed by the plaintiff for surplus profits is a distinct subject.

3. Reliance was placed by learned Counsel for the petitioners in this connection on Nilakantan Nambudripad v. Ananthkrishna Aiyar : (1906)16MLJ462 , but that case does not bear out his contention as two distinct alternative reliefs forming different matters were being claimed in that case and the court-fee was required to be paid in respect of each relief separately. The claim for redemption in that suit was based upon the alleged right of the plaintiff as a mortgagor while the alternative relief was based on a contract for a further mortgage which was distinct from the earlier mortgage right. As the alternative claims were held to comprise distinct matters which could have been made the grounds for separate suits, they were held to form 'distinct subjects' within the meaning of Section 17 of the Court-Fees Act. It was, however, stated in that judgment that 'where reliefs are claimed in the alternative with reference to the same cause of action, Section 17 would not govern the case.' This observation is fatal to the petitioners' contention and when this was pointed out by me to their learned Counsel, he had to concede it.

4. It is true that the plaintiff has, in her plaint, asked for surplus profits separately and this was the main ground on which the correctness of the lower Court's order was impugned. But having read the plaint carefully, I am of opinion that the reliefs claimed by the plaintiff, both for redemption and for recovery of mesne profits, are based on her right to redeem and arise out of the same cause of action. Section 7, Sub-clause (ix) of the Court-Fees Act provides that in suits against a mortgagee for recovery of the property mortgaged, the fee would be 'according to the principal money expressed to be secured by the instrument of mortgage.' In so far as a suit for redemption is a suit against a mortgagee for the recovery of the property mortgaged, the fee would have to be paid on the principal money expressed to be secured by the mortgage deed although the major portion of the principal amount may have been paid or may be alleged to have been paid before the suit is instituted. Similarly, the amount of interest which may have accumulated on the mortgage and which the mortgagor will be required to pay in addition to the principal due under the deed, will have to be disregarded in computing the fee to be paid for the redemption suit.

5. Since the main relief claimed by the plaintiff is one for redemption and her prayers for surplus profits or for accounts are only subservient to the main relief claimed by her and as the ascertainment of the amount payable by one party to the other is a condition of redemption and is incidental thereto, the valuation put by the plaintiff in her plaint is correct. The fact that the plaintiff has stated the amount which would be according to her, due by the defendant-mortgagee is, to my mind, immaterial. The taking of an account has to be ordered by a Court under the terms of a preliminary decree passed in a redemption suit Order 37, Rule 7, Civil Procedure Code) and if it appears that the defendant-mortgagee has been overpaid, he would be directed under Rule 9 not only to re-transfer the property, but to pay to the plaintiff-mortgagor the amount which has been found due to him. In such a case, the plaintiff could not have been, under the provisions of Section 7, Sub-clause (ix) of the Court-Fees Act asked to pay any additional court-fee. Why should she be compelled to pay additional court-fee when she has added a prayer in respect of a matter which the Court is bound to inquire into and which must, for that reason, be regarded as more or less superfluous? I would therefore respectfully agree with the reasons given by Mr. Justice Sundaram Chetty in Grandhi Pothanna v. Satyananda Charyulu : AIR1931Mad479 and with what was decided in Chhiddu Singh v. Jhanjhan Rai I.L.R.(1922)All. 154.

6. The revision fails for the above reasons and is dismissed with costs.


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