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Muthu Naicken Vs. Mariappa Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 875 of 1950
Judge
Reported inAIR1953Mad754; (1952)2MLJ172
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Court-fees Act, 1870 - Sections 7
AppellantMuthu Naicken
RespondentMariappa Pillai and anr.
Appellant AdvocateK. Krishnaswami Iyengar and ;R. Aravamudha Iyengar, Advs.
Respondent AdvocateM.S. Vaidhyanatha Iyer, Adv.
DispositionRevision dismissed
Cases ReferredRatna Mudali v. Perumal Reddi
Excerpt:
.....be the general practice of this court relating to more or less the merits, it has been the well established practice of this court to interfere with an order relating to court-fee and jurisdiction even though the decision on these questions of the lower court were in favour of the..........by the petitioners i.e., as to the jurisdiction of the district munsif to entertain the suit. as a suit for redemption simpliciter, though redemption may involve recovery of possession, there can be no doubt that the value of the suit both for the purposes of court-fee and for purposes of jurisdiction must be determined by the amount secured by the mortgage. section 7, clause (ix), court-fees act is the provision relating to court-fees and the same valuation would apply even for purposes of jurisdiction. no serious dispute was raised by mr. k. krishnaswami aiyangar learned counsel for the petitioner on this point. he, however, contended that so far as the alternative relief was concerned) namely, the relief for partition and separate possession of a three-fourth share in two of the.....
Judgment:

Rajamannar, C.J.

1. This revision arises out of an interlocutory order passed in a suit filed by the respondent for redemption of an 'othi' dated 3-5-1899. He prayed for a decree directing the defendants to receive the 'othi' amount of Rs. 300 and to deliver possession of the properties in Schedule A. 2. In the alternative he prayed for delivery of possession of item 2 of A. 2 schedule and partition of items 1 and 3 of A. 2 schedule into four shares and delivery of possession of three shares to him. This was because there was a claim on behalf of defendant 2 that he had become entitled to a fourth share in these two items. We are not concerned with the other prayers. He valued the reliefs A and B in the principal amount of the 'othi' and for the alternative relief of partition and possession, he valued the relief under Article 17-B, Court-fees Act. As higher court-fee was payable on the main relief of redemption of the entire property, that court-fee was paid and? no court-fee was paid on the alternative relief. Defendant 2 raised objections as regards the valuation of the suit claim and the jurisdiction of the Court. Two of the issues were, therefore, heard as preliminary issues, namely, issues Nos. 14 and 15. They run as follows :

14. Whether the relief of partition has been properly valued and proper court-fee has been paid?

15. Whether the amended claim for partition is beyond the pecuniary jurisdiction of this Court.'

Meanwhile the plaintiff came out with his application I. A. No. 931 of 1949 for an amendment of the plaint, viz., in the place of prayer (b) the following to be substituted,

'In the alternative directing the defendants by way of redemption to deliver possession of item 2 of A. 2 schedule and separate possession of such share in items 1 and 3 of A. 2 schedule as the Court may find that the plaintiff may be entitled to against the defendants.'

Consequently, he wanted also an amendment in the particulars of claim and for relief (b) the following to be substituted,

'For relief (b) the alternative relief of redemption and separate possession of such-share as the Court may find that the plaintiff is entitled ..... Rs. 600 court-fee under S 7 Clause (ix) Court-fees Act. Rs. 67-7-0.'

The learned District Munsif found in favour of the plaintiff on issue No. 14 and against the defendant on issue No. 15 and granted the amendment of the plaint sought in I. A. No 931 of 1949. Defendant 2 seeks to have this order revised by this Court.

2. A preliminary objection was raised by Mr. M. S. Vaidhyanatha Aiyar on behalf of the plaintiff-respondent that no revision petition would lie on a mere finding which allowed the suit to go on. Assuming that this would be the general practice of this Court relating to more or less the merits, it has been the well established practice of this Court to interfere with an order relating to court-fee and jurisdiction even though the decision on these questions of the lower Court were in favour of the plaintiff. It is only when the question related entirely to court-fee and did not involve any question of jurisdiction that this Court had held that it would not interfere at the instance of the defendant. We are not, therefore, impressed with the preliminary objection,

3. I do not think that the real quarrel of the petitioner is with the order allowing an amendment of the plaint. It is really against the findings on issues Nos. 14 and 15. The amendments which have been allowed do not change the cause of action on which the suit was originally brought. They do not introduce new pleas. Whether they clarify anything or not it is not for me to say. All that I can say is that the amendments appear to be quite innocuous. In any event I cannot say that the learned District Munsif erred so grossly in the exorcise of his discretion that I should interfere.

4. Then remains the main question raised in this petition by the petitioners i.e., as to the jurisdiction of the District Munsif to entertain the suit. As a suit for redemption simpliciter, though redemption may involve recovery of possession, there can be no doubt that the value of the suit both for the purposes of court-fee and for purposes of jurisdiction must be determined by the amount secured by the mortgage. Section 7, Clause (ix), Court-fees Act is the provision relating to court-fees and the same valuation would apply even for purposes of jurisdiction. No serious dispute was raised by Mr. K. Krishnaswami Aiyangar learned counsel for the petitioner on this point. He, however, contended that so far as the alternative relief was concerned) namely, the relief for partition and separate possession of a three-fourth share in two of the items, the suit must be valued as if it were an ordinary suit for partition and the subject matter of the jurisdiction being land, the value for purposes of jurisdiction would be the market value of the plaintiffs share which would be in excess over the pecuniary limits of the District Munsif. He has not been able to cite any authority to support his contention except a decision in -- 'Narayanan Nair v. Narayanan Nambiar', AIR 1918 Mad 1142 (A) to which I shall presently refer, but which, in my opinion, does not decide this question at all.

5. On the other hand, Mr. Vaidhyanatha Aiyar for the respondent (plaintiff) has referred me to a Full Bench decision of the Allahabad High Court in -- 'Amanat Begam v. Bhajan Lal', 8 All 438 (B) and to --'Vasudeva v. Madhava', 16 Mad 326 (C). These were also cited and relied upon by the Court below. I think they do support the respondent's contention that a suit for redemption of a portion or a share of the hypothecated property must also be valued on the same principle as a suit for redemption of the entire mortgage and the valuation would be the value of the share of the mortgage amount as determined by the share in the mortgage property to which the plaintiff lays claim. In 8 All 438 (B) a deed of mortgage was executed by three persons. A purchaser of the share of one of the three mortgagors brought a suit for recovery of possession of one-third of the mortgaged property against the mortgagees who had purchased the shares of the other mortgagors. It was held by the Full Bench with reference to Section 7, Clause (ix), Court-fees Act that the principal money secured as between the defendants and the plaintiff must be regarded as one-third of the original mortgage amount and court-fees and jurisdiction should be determined on that basis. Learned counsel for the petitioner in trying to distinguish the case said that this was not a case where the plaintiff had sued for part of the mortgaged property, but in this he was wrong. The statement of the facts in the report makes it abundantly clear that the suit was to recover one-third of the mortgaged property on payment of one-third of the principal money due. In 16 Mad 326 (C) the Subordinate Judge passed a decree for redemption of one-fourth of the mortgaged property on payment of one-fourth of the mortgage debt. A question arose whether an appeal from that decree lay in the District Court or to this court. The learned Judges (Muthuswami Aiyar and Wilkinson JJ.) held that the value of the subject matter of the appeal was one-fourth of the mortgage debt.

6. Now I shall refer to -- 'Narayan Nair v. Narayanan Nambiar', AIR 1918 Mad 1142 (A). In that case it was held that in a suit by one co-owner for redemption of the whole mortgage the Court can, if there is no great difficulty in ascertaining the particular share to which the plaintiff was entitled, pass a decree for both the reliefs or partition and redemption. In that case, the plaintiff had prayed originally only for redemption of the entire mortgage. It was found that he would be entitled to a moiety. The learned Judges allowed the plaintiff to amend the plaint by including a prayer for recovery in the alternative of the share to which the plaintiff was found entitled and for partition and redemption of this share on payment of the proportionate amount of the mortgage. I am unable to understand how this decision really helps the petitioner. If at all, I believe, it is against him. On the principle of this decision even if the plaintiff in the present suit had not prayed for the alternative relief and had been content to pray only for the redemption of the entire mortgage, if it was actually found that he was entitled only to a share, he would have been directed to amend his plaint by praying in the alternative for recovery of the share to which he is found entitled. There is nothing about court-fees or jurisdiction raised or decided in the judgment of Sadasiva Aiyar J. on which learned counsel for the petitioner placed great reliance. We are not concerned now with the question whether a suit for redemption by one co-owner is not maintainable at all before there had been a partition between the several co-owners, see -- 'Ratna Mudali v. Perumal Reddi', AIR 1916 Mad 863 (D).

7. The decision of the lower Court was right and the civil revision petition is dismissed with costs.


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