GEORGE ABRAHAM VADAKKEL,J. -
(1.) THE petitioner filed a suit for partition and separate possession of his 1/3 share in the plaint properties including some private forests.The plaintiff in the first instance paid the fixed court -fee of Rs.100 on the ground that he is in joint possession of the Illom properties.However,he was directed to pay court -fee on the 1/3 market value of the private forests,the market value of which properties have been assessed at Rs.4,42,187.50.The court -fee payable by him accordingly came to Rs.33,164.25.Unable to pay the abovesaid court -fee he sought for and was allowed to continue the suit in forma pauperis .The suit was ultimately compromised whereby the plaintiff got a decree for 50 acres of private forests comprised in items 3 and 4 and another property,1 acre 51 cents of land and a building thereon.Ext.P -1 is the decree.That decree directed,as provided for in Order XXXIII,rule 10 of the Code of Civil Procedure,1908 that the court -fee payable by paintiff shall be recoverable by the Government and that the same shall be a first charge on the subject -matter of the suit.The decree is dated 15th March 1965.Admittedly the petitioner paid towards the aforesaid liability for court -fee,Rs.13,720 on 30th September 1965.The balance remaining payable by the petitioner is Rs.23,597.75.On 23rd August 1971 the 1st respondent published the Kerala Private Forests(Vesting and Assignment)Act,1971,which as per section 1(3)thereof was brought into force with retrospective effect from 10th May 1971.Under section 3 of that Act with effect from 10th May 1971,the ownership and possession of all private forests in the State were transferred to and vested in the Government free from all encumbrances,and the right,title and interest of the owner and other persons in them were extinguished.It is the submission on behalf of the petitioner that by reason of this provision the debt(liability for court -fee)itself has been wiped off pro tanto to the value of the property so vested.
(2.) THE learned counsel for the petitioner put forward his arguments in two forms,viz .,that there has been a merger of the charge and the full proprietary right less the charge in one and the same person,viz .,the 1st respondent,and that,therefore,there has been a wiping off of the debt for which the charge was created.In a slightly different form it was argued that section 3 of the Act could operate only on the petitioner's rights in the property,that is to say,his full ownership less the charge -rights of the 1st respondent which had earlier been created in favour of the 1st respondent as per Ext.P -1 decree in 1965.
No authority is required for the proposition that the court -fee payable by the plaintiff in a suit filed in forma pauperis is a charge on the subject -matter of the suit.Rule 10 earlier mentioned itself provides that it shall be a first charge.In view of the fact that the charge arises under the provisions of the statutory rules,it is a statutory charge; Ramachandra v .Laxman A.I.R.1959 Bombay 49. In Devichand v.Chintaman A.I.R.1945 Bombay 116 relying on an earlier decision of that court as well as the decisions of the Allahabad,Madras and Calcutta High Courts,it has been laid down that the expression the charge or encumbrance shall be extinguished in the old section 101 of the Transfer of Property Act,1882 meant that the debt which was the basis of the charge itself would be extinguished.The discussion therein discloses that the above principle is based on the law of merger.This is what is stated in the aforesaid decision. The effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him,that is to say,the portion of the debt which bore the same ratio to the whole amount of the debt as the value of the property purchased bore to the value of the whole of the property comprised in the mortgage,discharges and extinguishes that much debt ;.
The earliest decision that has been cited in that case is Lakhmidas v.Jamnadas I.L.R.22 Bombay 304 where a Full Bench of Bombay High Court said:
It is clear that the plaintiff when the purchased the equity of redemption in the house,purchased it subject to its due proportion of the mortgage debt.That proportion of the mortgage debt thus ceased to exist,and the plaintiff's right as mortgagee to recover the money secured by his mortgage was reduced to that extent ;.
The effect of the amendment of section 101 is considered in the Commentaries,Mulla on Transfer of Property Act,1882,( Setalvad's 5th Edn.pp.624 -625 and Setalvad's 6th Edn.pp.628 -629)as follows -."
The old section covered the cases of the union of two estates which occurred when the purchaser of the equity of redemption acquired the rights of the mortgagee or when the mortgagee acquired the right of the mortgagor.The amendment of the section does not alter this rule.Where,therefore,a charge is created by the judgment - debtor in favour of the holder of a money decree,this charge is extinguished by the purchase of the property by the charge -holder at the auction sale in execution of a prior mortgagee's decree.The debt itself having ceased to exist,it is not open to the charge -holder to seek a personal remedy against the judgment -debtor ;.(underlining by me ).
Devichand's case A.I.R.1945 Bombay 116 is cited by the learned Commentators as authority for the abovesaid principle.These propositions have been accepted and followed in two decisions of the Travancore -Cochin High Court reported in the same volume ,Kunjan Pillai v .Ouseph 1952 K.L.T.207 and Mathai v. Zacharia 1952 K.L.T.322.There is an elaborate discussion of these principles in the aforesaid two decisions.In the first case Subramonia Iyer,J.on behalf of the Bench said:"
The principle applies to all obligations whatever be their origin and nature;it applies to obligations arising out of or merged in and evidenced by decrees as well.The principle would equally apply whatever be the manner in which the two characters happen to become vested in the same individual whether by act of parties or by operation of law ;,( underlining by me ).
The above passage was cited with approval in the other case,also a Bench decision,by Koshi,J.( as he then was)who was a party to the earlier decision.These two decisions emphasised the principle of merger of two opposite characters,( rather than merger of two estates ),of debtor and creditor becoming united in the same person,but this,in my view,is immaterial so far as a mortgagor and mortgagee,or a charge -holder and one liable under the charge are concerned.
(3.) IN my view the submission made on the basis of the above discussed principle and relying on the aforesaid decisions that there has been a protanto extinguishment of the charge liability is well -founded.;