ABU Vs. THITHIKUTTY UMMA AND OTHES
HIGH COURT OF KERALA
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(1.) The question arising in this Civil Revision Petition is whether the court fee paid is adequate ana proper. The question was raised in the appeal A. S. No. 399 of 1966 on the file of the Subordinate Judge of Ottappalam from a final decree for partition. The appeal was filed by defendants 2,5 and 6. One of the contentions raised in the appeal was in respect of the mesne profits decreed against them. Mesne profits have not been separately valued in the appeal, since according to the appellants mesne profits form part of the corpus available for partition among the various sharers. In the appellate court a preliminary objection was raised by the respondent (plaintiff) saying that since a specific amount has been decreed by way of Mesne Profits the appellant should be called upon to pay court fee on that amount irrespective of other reliefs claimed in the memorandum of appeal. The appellants are made liable for three years, mesne profits at the rate of Rs. 985-88 Ps., per year. They have been made liable for future mesne profits also at the same rate. The learned Subordinate Judge upholding the preliminary objection has directed the appellants to pay deficit court fee on the mesne profits decreed.
(2.) The law is clear that in a suit for partition a sharer claiming partition has a right to demand accounts of the mesne profits received by the person in possession, and ask for a decree for his share of the mesne profits that have so accrued. A Division Bench of this court in Mariyumma v. Kunhambu Nair ( 1967 KLT 1017 ) has observed that in such suits a share of the profits is claimed "not as mesne profits but as appurtenant to his right in his share of the lands. The profits accruing from the common properties forming the subject matter of the division during the pendency of the suit, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It is not correct to regard the claim for profits put forward in a suit for partition by a sharer of joint family property or of coownership property as a claim for mesne profits falling under O.20 R.12 C.P.C. It is part of the legitimate function of a court passing a final decree in suit for partition and effectuating a division of properties pursuant to a preliminary decree to make a division of the profits that have accrued from such properties pending the suit, as such profits really form part of the corpus available for division."
Thus the profits appropriated by the appellants must be regarded as an addition to the common estate partible among the various sharers.
In a Division Bench of the Bombay High Court, Gajendragadkar J., (as he then was) has held, under similar circumstances, as follows:
"A suit for partition falls under Schedule.11, Art.17 Chap.(7) and this would be so whatever be the contentions urged by the defendants while resisting the plaintiff's claim for partition. And in an appeal arising from a suit which falls under Art.17, the court fee payable on memorandum of such an appeal must be the same as that payable on the original plaint in the suit. There is no difference in principle between an appeal preferred by a plaintiff and that by a defendant. An appeal preferred by the defendant against a decree based on the finding that the properties in the suit are the properties of the undivided family and that they do not belong to the appellant defendant as his exclusive properties should similarly fall under Art.17, Clause.(vii) of Schedule. 11. The suit on the whole would still continue to be a partition suit, and for the purpose of an appeal it would still be an appeal from a partition suit notwithstanding the nature of the finding recorded by the Trial Court and without reference to the question as to who the appellant is".
The appeal, is therefore, a continuation of the suit and the character of the suit does not change even if an appeal is filed by the defendant. He need pay only the court fee that the plaintiff has paid on the plaint. The same view has been taken by the Madras High Court in Meenakshi Ammal v. Sankaralingam Pillai (1949 (II) MLJ 782) That was also an appeal from a decree for partition. There the learned Judge held :-
"The appeal against either a preliminary or a final decree, arising out of a suit for partition must be treated as one incapable of valuation and Art.17B of Schedule.11 of the court fees Act is the only Article that would be applicable. Art.1 of Schedule.1 is not applicable and ad valorem court fee cannot be charged.
Where the subject matter of an appeal against a final decree for partition is the amount of owelty payable to the plaintiff on partition, as also the amount of the share of profits, consequent on his being declared entitled to a share in profits, they are ordinary incidents in a suit for partition."
(3.) In the present case, the appeal is against the final decree and one of the contentions raised in the memorandum of appeal is that the decree directing the appellant to pay mesne profits as wrong and unsustainable. It is one of the points that would ordinarily arise in an appeal against a partition decree and on such a relief advalorem court fee is not chargeable. The appeal being one arising from suit for partition the court fee payable will be the fee provided in Art.17(b) of Schedule.11 of the Court Fees Act (Central Act) (Corresponding provision is given in S.37 of the Kerala Court Fees and Suits Valuation Act). As against this position a decision of the Andhra Pradesh High Court In re Kudappa Subbamma (AIR 1957 AP 6) was cited before me by the learned counsel where it was held that a specific amount having been decreed by way of mesne profits, the court fee payable in appeal amount having been decreed by way of mesne profits, the court fee payable in appeal is the court fee charged on the amount so decreed. But there the appeal was from a decree for mesne profits under O.20 R12 C.P.C. In such cases the court fee payable will have to be determined with reference to the amount or value of the subject matter in dispute. It was held in that case:-
" In a suit for mesne profits whither past or future if the mesne profits are ascertained and decreed, the party preferring an appeal should pay court fee on the amount or value of the subject matter in the appeal. If the defendant files an appeal seeking to get rid of the decree in whole or in part, he will have to pay court fee in whole or in part on the amount decreed which he seeks to vacate."
That is not the position here. The subject matter of the appeal in the present case is not a decree passed under O.20 R.12 C.P.C. but a final decree passed in a suit for partition. The mesne profits is only one of the incidents of a suit for partition and as such it is a component part of the decree passed which for purposes of court fee need not be segregated and valued separately. In this view, the court fee already paid is proper and does not call for any modification.
The order of the court below is hence set aside and the revision petition is allowed.;
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