(1.) In the revision petition filed by plaintiffs 1 to 3 the question raised relates to the sufficiency of the court fee paid for the plaint. It is agreed between the parties that the relevant provision applicable is S.33, sub-s.(8) of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960). The provision is in these terms:
"In a suit against a mortgagee for redemption of a mortgage, fee shall be computed on the amount due on the mortgage as stated in the plaint or on one fourth of the principal amount secured under the mortgage., whichever is higher:
Provided that, where the amount due on the mortgage is found to be more than the amount on which fee has been paid by the plaintiff, no decree shall be passed until the deficit fee is paid:
Provided further that, in the case of a usufructuary or anomalous mortgage, if the plaintiff prays for redemption as well as for accounts of surplus profits, fee shall be levied separately on the relief for accounts as in a suit for accounts."
(2.) To appreciate the contention of the revision petitioners it is necessary to state a few facts as disclosed in the plaint. The plaint schedule property comprises an extent of 4 acres 92 cents (52 parahs) of paddy land. The property belonged to Areprathu tarwad. The tarwad executed a mortgage with possession on 10-4-1042 for a term of 42 years in respect of 13 acres 62 cents of paddy land including the plaint property in favour of one Narasimha Iyer Krishna Iyer for 3400 parahs of paddy. There is a provision in the mortgage deed for payment of 32 parahs of paddy annually towards michavaram to the mortgagors' tarwad. The right of the mortgagees devolved on the family of defendants 1 to 5. The members of their family divided the mortgage right under two documents of the years 1952 and 1961 and the mortgage right on the plaint schedule item was allotted to defendants 1 to 5 apportioning the mortgage money chargeable on the plaint item at 1230 Kalloorkadan parahs of paddy and fixing the michavarom payable by defendants 1 to 5 at 11 parahs and 5 edangazhies of paddy per annum, It is alleged in Para.8 of the plaint that the sharers to whom the mortgage right over the remaining 8 acres and 70 cents was allotted under the documents of the years 1952 and 1961 have obtained the equity of redemption of those items and thereby, the mortgage right over 8 acres 70 cents of land has become extinguished. The plaintiffs therefore pray for redemption of the mortgage outstanding on the plaint schedule items on payment of 1230 parahs of paddy and also for setting off the arrears of michavarom due from the year 1084 against the mortgage money. The plaintiffs paid court fee on the money value of 1230 parahs of paddy calculating the price of paddy at 6 Chakrams per parah. The learned Munsiff by the order sought to be revised held that the plaintiffs in view of the second proviso to sub-s.(8) of S.33 of Act 10 of 1960 are bound to pay separate court fee for the set off of arrears of michavarom against the mortgage money and also directed the plaintiffs to value the paddy at the market rate prevailing on the date of the suit.
(3.) The submission of the learned counsel for the revision petitioner was in these terms. According to the plaint, no amount is due on the mortgage transaction to the mortgage and the plaintiffs are entitled to recover possession without payment of any redemption price. The plaintiffs are therefore bound to pay court fee on 1/4th of the principal amount secured under the mortgage. The amount secured under the mortgage according to the learned counsel is only 1230 Kalloorkadan parahs of paddy and not 3400 parahs of paddy. The plaintiffs are bound to pay court fee only on 1/4th of the value of 1230 Kallorkadan parahs of paddy. The point in the form in which it was raised before us was not raised before the learned Munsiff. The contention on behalf of the State was that the clause "one fourth of the principal amount secured under the mortgage" means one fourth of the principal amount secured under the instrument of mortgage of 1042, namely 3400 Kalloorkadan parahs of paddy. S.33 sub-s.(8) of the Kerala Court Fees and Suits Valuation Act, 1959, corresponds to S.33 sub-s.(8) of the Madras Court Fees Act 1955. The learned counsel for the revision petitioners placed before us a number of decisions interpreting S.7, sub-s.(ix) of the Court Fees Act, 1870 (Central Act No. 7 of 1870). S.7, sub-s.(ix) of the Act is in these terms:
"In suits against a mortgagee for the recovery of the property mortgaged, and in suits by a mortgagee to foreclose the mortgage, or, where the mortgage Is made by conditional sale, to have the sale declared absolute according to the principal money expressed to be secured by the instrument of mortgage;"
In the decisions cited on behalf of the revision petitioners, the scope of the expression "the principal money expressed to be secured by the instrument of mortgage" occurring in the Section quoted above has been discussed. S.3 sub-s.(9) of the Travancore - Cochin Court Fees Act, 1125 (Act 2 of 1125) is word for word identical with S.7, sub-s.(ix) of the Central Act. In all suits to be valued under sub-s.(ix) of S 7 of the Central Act or S.3 sub-s.(9) of the Travancore - Cochin Court Fees Act, 1125, the principal money expressed to be secured by the instrument of mortgage is the determining factor. Where it is open to a mortgagor to redeem a part of the mortgaged property the debt must be regarded as distributed over the whole property and the money due under the mortgage must be taken to be the proportionate mortgage amount for which the portion of the property sought to be redeemed is liable. In Amanat Begam v. Bhajan Lal (8 Allahabad 438) a deed of mortgage was executed by three persons for Rs. 4000/-. A purchaser of the share of one of the three mortgagors brought a suit for recovery of possession of a particular portion forming 1/3 share in the property mortgaged against the mortgagees who had purchased the shares of the other mortgagors. In considering the mode of valuation under S.7, clause (ix) of the Central Act a bench of five Judges of the Allahabad High Court said thus:
"This being so, we have to lock at art. ix, S.7 of the Court Fees Act, which is as follows:-- In suits against a mortgagee for the recovery of the property mortgaged; and in suits by a mortgagee to foreclose the mortgage, or, where the mortgage is made by conditional sale, to have the sale declared absolute, 'the court fee is to be calculated "according to the principal money expressed to be secured by the instrument of mortgage". Of course, if we are to interpret this language strictly, it is difficult to say that the instrument in question in the present case expresses as secured any other sum than Rs. 4,000, and the extreme contention urged by Pandit Ajudhia Nath was that we must make the plaintiff pay court fees upon that sum. But it appears to me that the defendants mortgagees, having broken up the "Mortgage" and so by their own act having empowered the plaintiff to sue for redemption of one third of the property, that the principal money now secured as between them and the plaintiff must be regarded as one third of the original mortgage amount, namely, Rs. 1333-5-4, more particularly when it is borne in mind that fiscal enactments should, as far as possible, be construed in favour of the subject. My brother Mahmood reminds me of the observations of Melvill, J., in Balakrishna Dhonio v. Nagvekar ( ILR 6 Bom. 324 ) where the same principle was adopted. They are as follows:
"In cases in which it is competent to the mortgagor to sue to recover a portion of the mortgaged property, the debt must be regarded as distributed over the whole property; and as regards the portion of property sued for 'the principal money expressed to be secured' "must be taken to be the proportionate amount of the debt for which such portion of the property is liable!"
In Muthu Naicken v. Mariappa Pillai ( AIR 1953 Mad. 754 ) Rajamannar, C.J. had to consider the scope of the expression "principal money expressed to be secured by the instrument of mortgage" in S.7, Sub-s.(ix) of the Central Act. The learned Chief Justice observed thus:
"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.";