Alfred Henry Lionel Leach, C.J.
1. This civil revision petition raises the question whether a co-mortgagee when suing to recover his individual share in the mortgage must value his suit according to the full amount due under the deed, or whether he may value it according to his own share. The question has arisen in other cases in this Court and there is a conflict of opinion. It is certainly one of some difficulty. In the present case there is a charge on immoveable properties and not a mortgage, but the same principle admittedly will apply.
2. In the year 1919 one Vanchi Pattar organised a chit fund, of which he constituted himself the manager. The subscriptions were to be paid to him and as security for the discharge of his obligation to the subscribers he created a charge on certain immoveable properties. Rama Pattar, the father of the petitioner and of the fourth and fifth respondents, subscribed to the fund on behalf of his family, which was then joint. Eventually the family became entitled to withdraw from the fund Rs. 3,032, but Rama Pattar died without receiving payment. After his death his sons separated and under the decree passed in a partition suit the petitioner became entitled to two-fifths, the fourth respondent to two-fifths and the fifth respondent to one-fifth of the Rs. 3,032. With two exceptions all subscribers to the fund have now been paid. The two exceptions are Rama Pattar's family and one P. M. Krishna Aiyar.
3. In 1936 the petitioner filed a suit in the Court of the Subordinate Judge of South Malabar at Palghat to recover his two-fifths share of the Rs. 3,032 by the enforcement of the charge created by Vanchi Pattar who is now dead. The defendants were the first and second respondents, who are the sons of Vanchi Pattar; the third respondent, who is the alienee of the properties; the petitioner's brothers and P. M. Krishna Aiyar. The amount due to P. M. Krishna Aiyar was Rs. 1,429 and therefore at the time the suit was filed the properties remained charged in respect of a total sum of Rs. 4,461. The petitioner prayed for a decree for Rs. 1,212-6-4, the amount of his own share in the Rs. 3,032, and stamped his plaint accordingly. As the amount claimed was less than Rs. 3,000 the Subordinate Judge held that he had no jurisdiction to try the suit and returned the plaint to the petitioner to enable him to present it to the Court of the District Munsif of Alatur. In accordance with the decision of the Subordinate Judge the petitioner presented the plaint to the District Munsif, who accepted it, but in consequence of a plea raised by the third respondent in his written statement the District Munsif framed an issue on the question whether the suit had been properly valued for the purposes of court-fees and jurisdiction. The District Munsif considered that the suit should be valued in accordance with the full amount due under the document creating the charge and therefore ordered the plaint to be returned to the petitioner for presentation to the Court having jurisdiction; in other words, to the Court of the Subordinate Judge. The petitioner then re-presented the plaint to the Subordinate Judge, who adhered to his previous decision and refused to accept it. In these circumstances the petitioner asks this Court, in the exercise of its revisional powers, to set aside the Subordinate Judge's order directing the plaint to be returned and compel him to try the suit. In re-presenting the plaint to the Subordinate Judge the petitioner did not amend it in any way and did not tender any additional court-fee. The petitioner admits that he must ask for the sale of all the properties included in the charge and that the total amount due to the members of his family and to P. M. Krishna Aiyar under the document creating it is Rs 4,461, but he says that notwithstanding he is entitled to sue in the Court of the Subordinate Judge on payment of a court-fee based on the amount of his own share only.
4. Section 7 of the Court-fees Act and Section 8 of the Suits Valuation Act contain the only relevant statutory provisions. Sub-section (1) of Section 7 of the Court-fees Act states that in suits for money the amount of the court-fee shall be computed according to the amount claimed. It is common ground that when a mortgagee or a person entitled to a charge on immoveable property sues to recover what is due to him the plaint falls to be stamped under this sub-section. Sub-section (9) requires a suit against a mortgagee for the recovery of the mortgaged property or a suit by a mortgagee to foreclose the mortgage to be stamped according to the principal money expressed to be secured by the instrument of mortgage, but this sub-section goes no further and a suit to enforce a mortgage by a decree for sale obviously does not come within it. Section 8 of the Suits Valuation Act states-that where in suits other than those referred to in Section 7 (v), (vi), (ix) and [x (d)] of the Court-fees Act, court-fees are payable ad valorem under the Court-fees Act, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. Therefore in a suit like the one referred to in the petition it is the value of the claim which determines the forum, but it remains to be seen whether in such a suit the claim must be taken to be limited to the payment of the plaintiff's individual share or whether it is to be construed as one for the enforcement of the whole mortgage, and valued as such.
5. It is not disputed, nor can it be in view of the authorities, that one of several co-mortgagees who are in the position of tenants in common can sue to recover his own share of the mortgage, provided that he makes his co-mortgagees defendants, if they refuse to join him as plaintiffs. See Atchamma v. Subbarayudu (1903) 15 M.L.J. 496 and Sunitibala Debi v. Dhara Sundari Debi Chowdhurani . The last mentioned case was decided by the Privy Council and in delivering the judgment of the Board Lord Buckmaster said:
Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain payment of the debt, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree, which would provide for all the necessary accounts and payments, excepting that there could be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor.
Neither in Atchamma v. Subbarayudu (1903) 15 M.L.J. 496 or in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani (1919) 37 M.L.J. 483 : L.R. 46 IndAp 272 : I.L.R. 47 Cal. 175 did any question of court-fee or jurisdiction arise. Therefore these cases leave open the question under discussion, although we consider that the observations of Lord Buckmaster just quoted greatly assist in the solution of the problem. We shall return to Sunitibala Debi v. Dhara Sundari Debi Chowdhurani presently but at this stage it will be convenient to examine the judgments of this Court which are in conflict. They are the judgment delivered by Ramesam, J., in Seth Bansiram Jeshamal v. Gunnia Naga Aiyar : AIR1930Mad985 and the judgment of Varadachariar, J., in Peer Ammal v. Nalluswami Pillai : AIR1937Mad922 .
6. The case of Seth Bansiram Jeshamal v. Gunnia Naga Aiyar : AIR1930Mad985 , was decided by Ramesam, J., sitting alone. The learned Judge held that Section 67 (d) of the Transfer of Property Act does not prevent a person interested in part only of the mortgaged property instituting a suit. He may institute a suit for the recovery of his share provided the reliefs he prays for relate to the entire property. In the course of his judgment the learned Judge observed:
Thus the real question in all such cases is not one of maintainability of the suit but what is the court-fee to be paid by the plaintiff in such cases and perhaps though the point does not arise now there is also the question of jurisdiction. In such cases, should the plaintiff pay court-fee upon the whole of the mortgage money or only upon his share? It is true that for realizing his share of the mortgage money he has to pray for sale of the whole property....If the whole of the mortgaged property realised more than the amount due on the document to all the mortgagees, the plaintiff will be simply paid his amount and the rest of it will be held by the Court and will not be paid to the other co-mortgagees until they pay their court-fees. The fear that the Government will be deprived of the Government revenue while the whole of the mortgage amount is being realised and only a small amount is being paid as court-fee, is therefore illusory. After the trial of the case and the final decree is passed, the Court will make a provision directing the defendants mortgagees to pay their court-fees within a certain time and if they do not pay the court-fees the amount will be paid to the mortgagor after taking security. In such a case no mortgagee will allow his money to go back to the mortgagor's hands owing to non-payment of court-fees, so that ultimately the Government will get the whole court-fee due upon the whole of the mortgage money.
It follows from these observations that Ramesam, J., was of the opinion that the plaintiff could only be called upon to stamp his plaint according to the value of his share in the mortgage, and if this opinion is correct the petitioner has complied with the requirements of the law and the proper forum will be the District Munsif's Court.
7. In Peer Ammal v. Nalluswami Pillai : AIR1937Mad922 , Varadachariar, J., sitting with Mockett, J., indicated strong dissent from the opinion expressed by Ramesam, J., in Seth Bansiram Jeshamal v. Gunnia Naga Aiyar (1930) 50 M.L.J. 928. In the course of his judgment the learned Judge said:
Justice can be done between all the parties concerned only by providing in the decree for the distribution of the sale proceeds amongst the co-mortgagees. It accordingly seems to me more reasonable to regard the mortgage as a single cause of action at any rate for purposes of jurisdiction and in such a case under Section 8 of the Suits Valuation Act, the valuation for purposes of court-fee cannot be different. Ramesam, J., suggests that as regards the defendant co-mortgagee's share, the Court may be able to collect the court-fees later on before distributing the monies to him. With great respect, I venture to doubt if there is anything in the Court-fees Act authorising the Court to do so.
With great respect we consider that the opinion of Varadachariar, J , is to be preferred to that of Ramesam, J. The governing section is Section 7 of the Court-fees Act and not Section 8 of the Suits Valuation Act, but in deciding what court-fee is payable under Section 7 of the Court-fees Act the Court must have regard to the real nature of the claim. A co-mortgagee suing alone for his share must ask for a preliminary mortgage decree in respect of the entire debt. As already pointed out, Lord Buck-master in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani stated that where a co-mortgagee is suing alone he must ask for the proper decree which would provide for all the necessary accounts and payments, although a defendant mortgagee could not ask for judgment in his favour. This can only mean that the plaintiff must ask the Court to decide what is due on the mortgage as a whole and to fix a period for redemption of the mortgaged property in its entirety. There can be no redemption in part. Therefore the plaintiff cannot get his share until the mortgagor has paid into Court what he owes on the mortgage or the mortgaged properties have been sold under the preliminary decree. In these circumstances it seems to us that the primary claim can only be taken to be the enforcement of payment of the full mortgage debt, which means that the plaint must be stamped accordingly. Although hardship cannot be regarded as a factor, it may be pointed out that to require a co-mortgagee suing alone to pay court-fees on the full amount of the mortgage debt will not result in hardship. If he obtains a mortgage decree he will be entitled to recover out of the money paid into Court by the mortgagor or out of the proceeds of the sale of the mortgaged property the full amount of which he has had to pay in court-fees.
8. The question of what would be the proper course for a mortgagee defendant to take to recover his share of the moneys brought into Court as the result of a suit by a co-mortgagee does not arise in this case and the question can be left for decision until it does arise.
9. In the course of his judgment the District Munsif referred to the decision of Pandrang Row, J., in Ramachandra Aiyar v. Swarama Aiyar (1936) 44 L.W. 502 and the decision has been quoted to us in the course of the arguments. In that case a mortgage deed had been executed in favour of several creditors of the mortgagors for the aggregate amount of their dues, but it was the intention of the parties that there should be no separate payment to any of the co-mortgagees until the entire amount had been realised. Pandrang Row, J., considered that the judgment of the Privy Council in Sunitibala Debi v. Dhara Sundari Debi Chowdhurani did not apply and he held that one of the creditors could not bring a suit for his share. There are observations in the judgment which are open to criticism but it is not necessary to embark upon a discussion of the judgment because in this case it is common ground that Sunitibala Debi v. Dhara Sundari Debi Chovudhurani does apply. The only contest is with regard to its bearing on the question raised by the petitioner.
10. For the reasons given we hold that the petitioner should value his suit at Rs. 4,461 and pay court-fees on that amount, which means that the proper Court to try this suit is that of the Subordinate Judge of Palghat, provided, of course, the plaint is properly stamped. The costs of this petition will be costs in the cause.
11. The petitioner attached the plaint to his petition. The plaint will now be returned to him.