1. This reference under Section 5 of the Court-Fees Act arises in the following circumstances. The plaintiff who is a woman filed the suit for recovery of two sets of properties, lands which are described in Schedule A and jewels which are described in Schedule B. There are two sets of defendants, defendants 1 to 8 forming one group and defendants 9 to 13 another. The 9th defendant is the father of the plaintiff and the first defendant was her maternal grandfather. Defendants 2 to 8 are his sons and grandsons. It is alleged that throughout the relevant period defendants 1 to 8 were members of a joint Hindu family. The plaintiff's case shortly is that the properties described in Schedules A and B belonged to her mother who died on 28th May, 1928, in the house of the first defendant where she had gone for confinement; that the first defendant took possession of the jewels and the lands; that he subsequently agreed with her paternal relations that he would look after the properties during the minority of the plaintiff and hand them over to the plaintiff after she attained majority, together with the income which he may, during his period of management, realise. In paragraph 3 of the plaint the plaintiff describes the first defendant and his family as her guardians and trustees. There is also an averment that they are liable to account for the rents on the A Schedule property with interest. In paragraph 6 of the plaint there is a reference to notices which are said to have been issued, one shortly after the plaintiff's marriage by her father-in-law and another in 1943 by her husband and guardian, the plaintiff being still a minor then, calling upon the defendants to deliver possession of the properties as per Schedules A and B. It is alleged that the defendants made certain tendentious allegations and refused to deliver possession as requested. In paragraph 9 the first defendant is described as the trustee for A and B Schedule properties and it is said that in that view there is no bar of limitation. The reliefs are valued in paragraph 12 where under item 3 the rent payable on the plaint lands with interest as per the account filed along with the plaint is set down as Rs. 4,085-0-5. The relevant prayer for the purpose of the question of court-fee which has been raised is prayer (b) in paragraph 13 of the plaint. It runs merely as a direction to the defendants to pay Rs. 4,085-0-5 being the amount as per sub-paragraph 3 of paragraph 12 and representing the rents realised by the defendants on the A Schedule properties with interest. The future payments to be made by the defendants are definitely described as future profits and sub-paragraph (c) of paragraph 13 prays for a direction to the defendants to pay future profits from the date of plaint till the plaintiff is put in possession of the A Schedule lands. The account referred to in paragraph 12, sub-paragraph (3) sets out in detail the paddy rents realised and their market value, deducts the amount of taxes paid in the particular years, states the net income that remained and after calculating interest in respect of each of these amounts gives the total amount payable to the plaintiff as Rs. 4,085-0-5. Looking at the plaint therefore it is fairly clear that while there are references to the legal relationship between the parties which would make the defendants accountable, both in valuing the claim and in framing the relevant prayer, the plaintiff's advisers somehow regarded it as in substance a claim for money. If they had realised that they could describe the claim merely as a claim for accounts, they would have asked for the rendering of accounts by the defendants and would have valued the particular relief under Section 7(iv)(f) of the Court-Fees Act. It is well known that it is open to a plaintiff to put any value he or she likes as a claim for accounts. I have no doubt that if the plaintiff's advisers had appreciated, the true legal position, they would not have paid a large court-fee on the amount of Rs. 4,085-0-5 which they treated as a claim for the recovery of money and were prepared to pay an ad valorem court-fee upon.
2. The first defendant died during the pendency of the suit. Defendants 2 to 8 would appear to have offered to surrender possession of the lands which they acknowledged to belong to the plaintiff. On 16th August, 1946, an interim decree was accordingly passed directing delivery of possession of the lands to the plaintiff. The interim decree would appear to have also provided that the profits claimed in the suit and subsequent profits will be determined on a separate application. It must be pointed out that there is no justification for calling upon the plaintiff to file a separate application. Once a suit for recovery of possession and for profits or for the rendering of accounts by the defendant is filed, it is the duty of the Court to go on with the suit till the right of the plaintiff to all and every one of the reliefs claimed by the plaintiff is adjudicated upon. It is obvious from the wording of the interim decree which I have borrowed from paragraph 5 of the judgment of the Court below, dated 25th July, 1947, that there was no clear appreciation of the real nature of the claim which the plaintiff is making in regard to the amounts realised by way of rents from time to time by the defendants. The issues show the same confusion. Under issue No. 1, the question is asked 'to what profits is the plaintiff entitled and from whom?' Issue 2(d) raises the question whether defendants 5 to 8 are liable to account. Issue 2(e) is in these words ' If liable, what is the amount due both in respect of jewels and rents?'
3. In the judgment under appeal in paragraph 8 the learned Subordinate Judge rightly observes that the better opinion appears to be that the first defendant is liable to account for the profits from 1929 till possession was taken in pursuance of the interim decree. In paragraph g however he refers to mesne profits and in paragraph 10 to profits. It is obvious that the real nature in law of the plaintiff's claim against the defendants had not been kept clearly in view either by the Court or by the plaintiff's advisers.
4. I am saying this to show that it is impossible to say on the plaint as framed that the plaintiff valued the relief with which I am concerned in this reference as one coming under Section 7(iv)(f). This in my opinion is a material circum- stance to be borne in mind in dealing with the question as to the appropriate court-fee that is leviable in respect of the memorandum of appeal.
5. The memorandum of appeal is filed by defendants 2, 5, 6 and 7 and is directed against the judgment and decree of the learned Subordinate Judge, dated 25th July, 1947, in which the learned Subordinate Judge recorded a finding that the
only relief to which the plaintiff is entitled is profits and interest as found under issues 1 and 3 recoverable from the one-third share of the first defendant in the hands of his legal representatives.
In paragraph 8 he directed that the exact amount will be as ordered in the interim decree of 16th August, 1946.
6. The appellants paid Rs. 2 by way of court-fee on this memorandum of appeal. In fact, according to the arguments addressed on behalf of the appellants based on Kandunni Nair v. Raman Nair : AIR1930Mad597 no court-fee need be paid at all. This argument proceeds upon the footing that the claim is really one for mesne profits and if a decree merely declares that the defendant is liable to pay mesne profits but does not assess the amount, the defendants in an appeal from such a decree need not pay any court-fee. The learned Government Pleader claims that there is an earlier decision in Punya Nahako, In re (1926) 52 M.L.J. 128 : I.L.R. 50 Mad. 488 with which the decision in Kandunni Nairv. Raman Nair : AIR1930Mad597 is at variance. It is however not necessary for the purpose of this reference to resolve the conflict, if any, between these two decisions because I am not prepared to accept the argument on behalf of the appellants that this must be regarded as a claim for mesne profits. It is frankly stated by Mr. Rama Rao that it is not possible to describe the possession of the defendants as unlawful and therefore to contend that they would be liable to the plaintiff in mesne profits. The decision in Kandunni Nair v. Raman Nair : AIR1930Mad597 may therefore be put aside.
7. The objection raised by the office in regard to the court-lee payable on this memorandum of appeal is based on the decision of the Full Bench in Dhanukodi, In re : AIR1938Mad435 . In that case it was held that if a defendant appeals from a preliminary decree in a suit for an account, he is not at liberty to place an arbitrary value on his relief but is bound to accept the valuation given by the plaintiff in the plaint and to stamp his memorandum of appeal according to that valuation. It seems to me that the present case is not a case like the one contemplated by the Full Bench. The Full Bench was dealing with a case where a plaintiff valued his relief as a claim for account under Section 7(iv)(f). If the plaint was cast in that form and the valuation proceeded on that basis, it would not be open to the defendant, according to the Full Bench when the amount payable by him is not finally ascertained, to put his own valuation. Pending the final fixation of the amount between the parties, the defendant as well as the plaintiff are bound to proceed on the basis of the personal valuation put upon the suit by the plaintiff. But here as I have already indicated the suit has not been valued on that basis at all. Mistakenly or otherwise the plaintiff has valued her suit as a claim for money. If the decision in Dhanukodi, In re : AIR1938Mad435 is to be applied to this case, we have, so to say, to recast the plaint and read the plaint as if it treated the relevant claim as a claim for accounts and value it on that basis which, as I have pointed out, it did not do. It would therefore be imputing to the plaint a valuation which is certainly not to be found in it. Having regard to the several portions of the plaint which I have already referred to and particularly paragraphs 12 and 13, I think it is not possible to apply the rule laid down in Dhanukodi, In re : AIR1938Mad435 .
8. The question then arises as to what the court-fee leviable in respect of this plaint is. If court-fee is not to be levied on the scale indicated in Dhanukodi, In re : AIR1938Mad435 the learned Government Pleader contends that court-fee may be payable under Article 17-A, Schedule II, Madras Court-Fees Act, on the footing that this is a memorandum of appeal against what is in effect a declaratory decree. I am inclined to think that it may fall under Article 17-B, Schedule II as a memorandum of appeal where it is not possible to estimate the relief claimed in the appeal at a money value. The learned Government Pleader has drawn my attention to the rulings in Reference under the Court-Fees Act, Section 7 : (1894)4MLJ22 . and Balavenkataraman v. Maruthamuthu : AIR1941Mad313 . In the latter case there was no difficulty at all about estimating the value of the relief which was sought in the appeal, the question being whether certain persons who claimed to be trustees were personally liable to pay the amount due on a promissory note. Venkataramana Rao, J., however made certain observations as to when a subject-matter in dispute can be said to be incapable of valuation. He said that that can be said only when it is established that
by no possibility could it be stated approximately what would be the money value of the detriment that a person may suffer by reason of the adverse decision against him.
9. Whether one agrees with the emphasis implied in the above observation or not, it is not apparent why the description given by the learned Judge would not apply to the present case. Here it is not possible for the appellants to say how much they would ultimately be called upon to pay. That is a matter for future enquiry. The detriment caused to the appellants by a mere declaration of their liability cannot now be estimated. The view which I am inclined to take seems to be supported by the ruling of the Nagpur High Court cited in Chitaley's Commentaries on the Court-Fees Act, 1944 edition, page 499. The decision in Reference under Court-Fees Act, Section 7 : (1894)4MLJ22 related to an appeal against a decree directing the defendant to pay the plaintiff for certain faslis before suit at 4 1/2 per cent. on the gross revenue of a zamindary. The determination of the actual amount was reserved for the execution stage. The question arose whether the appeal by the defendant from that decree was capable of being valued. The ruling of the Bench is in the following terms:
The appeal is capable of being valued and it is for the appellants under Section 7(iv)(f) of the Court-Fees Act to say what the value is; or in other words the defendant could put his own valuation in regard to the relief granted against him.
10. This last position however is opposed to the ruling in Dhanukodi, In re : AIR1938Mad435 which says in effect that the privilege of putting his own valuation under Section 7(iv)(f) of the Court-Fees Act is exclusively that of the plaintiff. But that apart, I am unable to see how the possibility of the defendant putting some hypothetical valuation on the decree which may ultimately be passed against him can make the relief which is now granted capable of being estimated at a money value. There is no further reasoning in Reference under Court-Fees Act, Section 7 : (1894)4MLJ22 beyond what I have quoted above. Whether the memorandum of appeal in the present case is to be valued under Article 17-A or under Article 17-B of the second schedule to the Madras Court-Fees Act, it would make no difference as the court-fee in either case would be Rs. 100. Assuming Article 17-A applies, the jurisdictional value of the suit in so far as it relates to the property set out in Schedule A and the money decree claimed in respect thereof is less than Rs. 10,000. I therefore answer the reference made by the Master by declaring that a court-fee of Rs. 100 is payable on the memorandum of appeal. The appellants will pay the deficit court-fee before the end of this month.