1. This is a reference under Section 5 of the Court Fees Act. The plaintiff filed a suit for redemption of a kanom. He obtained a decree for recovery of possession of property, subject to payment of the kanom amount and the value of improvements. In appeal, there is no dispute as to plaintiff's right to redeem but he appeals against the value allowed for improvements. The question is:--What is the proper Court-fee payable on the memorandum of appeal?
2. The reference has been made, because as a matter of practice, the Taxing Officer has been following the decision in Reference under Court Fees Act Section 5, (1) where it, was held that the claim for improvements being merely incidental to the decree for, possession, the Court-fees payable was that prescribed by Section 7, Clause ix of the Court Fees Act, viz., on the principal amount of the mortgage. It appears, on a reference to the papers in that case, which was an ejectment; suit that the right to eject was in dispute, in appeal as well as the claim for improvements; but in answering the reference, this Court held that even where the question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land. This dictum is obiter and has not been followed in later cases. We have now to determine; whether the practice in accordance with this dictum is correct. The payment on compensation for improvements under the Malabar Tenants' Compensation Act similar in nature to the payment of money due under a mortgage, for, until such a payment is made, the landlord or mortgagor, as the case may be, cannot recover possession. This case, therefore, is similar to a redemption suit where the amount of mortgage money payable is in dispute. The principle of the Court Fees Act is that the plaintiff should pay a Court-fee in proportion to the value of the relief he seeks. That value, if possible, is determined in money but where there is no money value or the money value is uncertain, the Act provides rules according to which the valuation shall be made. Section 7 deals with the valuation of suits only, except in Clause (iv) where the valuation of an appeal is also provided for, that clause deals with cases where the money value of the relief cannot be ascertained.
3. The general provision in respect of appeals is Article 1, Schedule I which provides that the fee shall be paid in accordance with the amount or value of the subject-matter in dispute and it is clear from the language that the words 'in dispute' must relate to the dispute in appeal and not in the original suit. It would thus appear that the word 'suits' mentioned in Section 7 does not include appeals and this was pointed out in Reference under Court Fees Act, 1870 29 M. 367 : 16 M.L.J. 287, where a case similar to the present one was considered. It was there held that, when an appeal in a redemption suit related only to the amount of mortgage money payable, the fee must be calculated with reference to the amount in dispute in appeal. This case exactly covers the present reference and it is not quite clear why it has not been followed by the Taxing Officer. It purports to follow a case in Nepal Rai v. Debi Prasad 2 A.L.J. 105 : A.W.N. (1905) 40 and dissents from a contrary decision in Pirbhu Narain Singh v. Sita Ram A.W.N. (1890) 231 : 7 Ind. Dec.. 59. The view in Nepal Rai v. Devi Prasad 2 A.L.J. 105 : A.W.N. (1905) 40 was also followed in Baji Lal v. Gobardhan Singh 6 A.L.J. 155 and Raghbir Prasad v. Shankar Bux Singh 11 A.L.J. 1016 . There are cases in this Court which seem to support Reference, under Court Fees Act, Section 5(1), Zamorin of Calicut v. Surya Narayana Bhatta 2 Ind. Dec. . 198, Reference under Court Fees Act, Section 5(8) and Sekharan Nair v. Kongot Eachoran Nair 3 Ind. Cas. 459 6 M.L.T. 245.
4. In all these case's as well as in Reference under Court Fees Act, Section 5(1), the question of the right to redeem or the right to eject was in issue. The decision in Zamorin of Calicut v. Narayana Bhatta 2 Ind. Dec. 198 has reference to a suit and not to an appeal and consequently Section 7, Clause (ix) is directly applicable. In Reference under Court Fees Act Section 5(8) the reference was made in connection with an appeal but the judgment deals only with the question of suits. In Sekharan Nair v. Kongot Echaran Nair 3 Ind. Cas. 459 : 20 M.L.J. 121 : 6 M.L.T. 245 the right to redeem was in issue and it was held that, where the only question raised in appeal is as to the amount payable, the memorandum of appeal would come under Article 1 of Schedule I for the purpose of computing the Court-fee. In In re Garapati Butchi Seethayamma : AIR1925Mad323 the right to recover land was in issue in the suit but the learned Judge in his judgment recognised that the current of authority is clearly in favour of the view that the value of an appeal is not in all cases the value of the suit as originally filed, but the value of the relief granted by the decree which the party wishes to get rid of. That this is the correct view is clear from the frame of the Court Fees Act which provides means for determining the value of the relief sought; such value cannot always be accurately determined by the plaintiff, 'when he files the suit, but can in many cases be definitely fixed in appeal, after the decree has been passed, the value being the difference between the amount stated in the decree and the amount sought by the plaintiff. It is only in very rare cases that an appeal cannot be definitely valued and such cases are provided for in Section 7 Clause (iv). There may be other instances and then, one would naturally look to the provisions of the Act relating to suits in order to ascertain the value of the appeal.
5. The principle laid down in Reference. under Court Fees Act 16 M.L.J. 287 has been adopted in In re Porkodi Achi 14 L.W. 624 (1921) M.W.N. 854 : 30 M.L.T. 881 : A.I.R. (1922)(M.) 211 and also by the Allahabad High Court as mentioned above, and by the Lahore High Court in Lekh Ram v. Ramji Das 1 L. 234.
6. We, therefore, accept the ruling in Reference under Court Fees Act, 1879 29 M. 367 : 16 M.L.J. 287 and find that the Court-fee payable in the present instance must be determined in accordance with the value of improvements which the appellant seeks to avoid. Time for paying the additional Court-fee is extended to 28th August, 1925.
7. I agree.