(1.) I am afraid that when I made the order of the 7th April 1967 in this case, the statute I had actually before me was Kerala Act 10 of 1960 although the statute i mentioned in the order was Madras Act XIV of of 1955 which is the statute that really applies. Nevertheless, I think that my direction to the appellant to pay court fee in the appeal on the market value of his lease-hold right is correct.
(2.) THE appellant is a defendant in a suit for partition in a Nayar tarwad. He holds the property in dispute in the appeal under a lease from the karnavan of the tarwad, and the decree he has suffered, and against which he is appealing is a preliminary decree for partition and possession in favour of the several sharers free of his lease which has been ignored on the ground that it is not binding on the tarwad. It seems to me that the case falls directly within Art. 1 of Schedule I of the Act (Madras Act XIV of 1955) and that the appellant must pay court fee thereunder on the value of the subject-matter in dispute, the subject-matter in dispute being the lease-hold right he claims, the appellant having no objection to a partition of the reversion. As I have said, the decree relates to the entire property covered by the appellant's lease and provides for its division between the several sharers, actual possession being given to them, so that the appellant must pay court fee on the value of the entire lease-hold right, not merely on the plaintiff's share of the property on which alone the plaintiff paid court fee in his plaint under s. 37 (1) of the Act.
It is said that the matter is really governed by S. 52 of the Act which makes specific provision for appeals. But then, it is to be noticed that Art. 1 of Schedule I of the Act omits the qualification, "not otherwise provided for in this Act" which was present in the Court Fees act of 1870, and it would appear from a reading of S. 4 and 21 of the Act that, so far as the payment of court fee is concerned, the provisions in the body of the Act and those in the schedules stand on the same footing. If the matter can be brought directly within Art. 1 of Schedule I, as I think it can, I do not see why I should apply the provisions of S. 52 in preference to the Article, although, if the two are in conflict it might be said that the provision which levies the lesser fee should be applied, the statute being a fiscal enactment. It might be that the words, "memorandum of appeal" in Art. 1 of Schedule i is an unintended surplusage, the Article having been copied from Art. 1 of schedule I of the 1870 Act without advertence to the fact that there was the new provision in S. 52 expressly providing for the fee payable in appeals. But then the words, "memorandum of appeal" are actually therein Art. 1 of schedule I, and, where the subject-matter in dispute in an appeal has a money value, the Article has to be applied whether or not the words are redundant having regard S. 52. In fact, I should think that, in cases where Art. 1 of schedule I applies, S. 52 only lays down the principles for determining the value of the subject-matter in dispute in the appeal.
An application of S. 52 of the Act as if the words, "memorandum of appeal" were not there in art. 1 of Schedule I would not lead to a different result. Under that section, the fee payable in appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. And explanation (1) to that section says that, whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance. The present appeal is against the grant of the relief of possession to the several sharers in so far as the appellant's lease-hold right is concerned as I have already observed, against the relief of partition of the reversion and such possession as it is capable of, the appellant has no complaints Therefore, it follows that the court fee payable in an appeal is what would have been payable in the court of first instance on the subject-matter in appeal, namely, the appellant's lease-hold interest, and this would be the fee payable under Art. 1 of Schedule I on the value of the lease-hold right, the value, in the absence of any indication to the contrary, being, of course, the market value. Attempts made to bring the matter within s. 25 or S. 37 or S. 40 or S. 43 (e) of the Act by reason of Explanation (4) to s. 52 must fail since that would mean adding to this explanation words that are not there. In the first place, it must be remembered that both in the body of s. 52 as also in Explanation (4) what is said is, "the court of first instance" and not, "a court of first instance". The section applies to appeals from all manner of proceedings not merely to appeals, in suits, and the attempts to which I have referred can be justified only if what explanation (4) said were that the fee payable in the appeal shall be the fee that would be payable in a court of first instance on the relief prayed for in the appeal had a suit been instituted therein for that relief. But that is not what the explanation says. What it says is that the fee payable in the appeal shall be the fee payable in the court of first instance on the relief prayed for in the appeal. In other words, it is the fee that would be payable on the relief in the court of first instance in the very proceeding in which the appeal is brought, and the question whether the explanation applies at all to a defendant's appeal unless the defendant is in the position of a plaintiff and liable to pay court fee in the court of first instance would be a matter for consideration. Moreover, the relief prayed for by a defendant in an appeal against the grant of a relief to the plaintiff would always be different from the relief prayed for or refused in the court of first instance, indeed, it would be the opposite of the relief prayed for in that court, and I am inclined to the view that it is only Explanation (1) and not Explanation (4) that applies to a defendant's appeal against the grant of a relief. It thus becomes unnecessary to examine which if any of the several provisions suggested would apply had a suit been brought by the appellant for the relief he claims in the appeal, but I might observe that I am satisfied that none of them would.
(3.) IT is contended on behalf of the appellant that under explanation (1) to S. 52, in this appeal against the grant of a relief, the fee payable would be the fee that would be payable on the relief granted in the court of first instance. That, of course, is so. But the relief hers granted and appealed against is not merely a partition and separate possession of the plaintiff's share of the property but a partition of the entire property between several sharers with recovery of possession of the entire property from the hands of the appellant. The fee that would be payable on that relief in the court of first instance would be the fee payable under S. 37 (1) of the Act in respect of all the shares, in other words, on the market value of the entire property itself, not merely of the lease-hold right therein. There can be no objection to the appellant paying court fee accordingly if he wishes to, but, having regard to the language of Art. 1 of Schedule I, and of the body of S. 52, i should think that the appellant need pay court fee only on the subject-matter of the appeal, namely, the leasehold right he claims.;