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Sekharan Nair (Dead) And Ors. v. Kongot Eacharan Nair And Ors.
Factual and Procedural Background
The suit concerned redemption of a kanom. The District Munsif dismissed the suit. On appeal the Subordinate Judge reversed that dismissal and decreed redemption in favour of the plaintiff on payment of the kanom amount and a specified sum for improvements. Certain defendants filed a second appeal challenging the decree. In their memorandum of appeal they questioned the plaintiff's right to redeem and alternatively contended that, if the plaintiff were entitled to redeem, he should pay a larger sum for improvements than fixed by the Subordinate Judge. The memorandum did not state the extra amount claimed for improvements and court-fee was paid only on the kanom amount. The plaintiff-respondent objected that the extra amount for improvements should have been stated and that court-fee should have been paid on that extra amount as well.
Legal Issues Presented
- Whether the appellant-defendants were required to state any extra amount claimed for improvements in their Memorandum of Appeal and pay court-fee on that extra amount, or whether the Memorandum was properly valued and stamped for court-fee purposes.
- How the "subject-matter in dispute" in a redemption suit (and in an appeal from such a suit) is to be valued for the purpose of computing court-fees under Article 1 of Schedule I and Section 7(9) of the Court Fees Act—that is, whether it is the principal money secured by the mortgage or the total amount claimed including improvements.
- Whether the Yogam or its members have such an interest in the suit property as to make non-joinder fatal under Section 85 of the Transfer of Property Act.
- Whether the Thachutaya Kaimal is a trustee of the Devaswom for the purposes of the suit.
- Whether the plaint melcharth was genuine and whether non-payment (or non-receipt) of a sum of Rs. 5,000 by the Kaimal invalidated the melcharth or showed it to be a mere sham.
- Whether compensation for paddy land should be assessed at 1,214 paras instead of 310 (i.e., whether the Subordinate Judge's factual finding that 904 paras had been previously paid was legally open to challenge).
Arguments of the Parties
Appellants' Arguments (defendants in second appeal)
- The appellants questioned the plaintiff's right to redeem the kanom.
- They contended that if the plaintiff had the right to redeem, the amount payable for improvements should be larger than the sum fixed by the Subordinate Judge; however, they did not specify the extra amount in the Memorandum of Appeal and paid court-fee only on the kanom amount.
- They further contended that the Subordinate Judge's findings were vitiated by misconstruction of certain documents and by wrongly excluding certain evidence (identified as Exhibits XI and XVII), and thus the factual findings on non-joinder and trusteeship were erroneous.
- They challenged the genuineness of the plaint melcharth (arguing it was a sham and that Rs. 5,000 said to have been paid had not been paid), and they disputed the quantum of compensation for paddy land.
Respondent's Arguments (plaintiff-respondent)
- The plaintiff-respondent raised a preliminary objection that the appellants should have stated the extra amount claimed for improvements in the Memorandum of Appeal and paid court-fee on that amount as well.
- Implicitly, the respondent relied on the position that the Memorandum of Appeal was properly valued for court-fee purposes (i.e., based on principal money secured) and that the Subordinate Judge's findings should be accepted.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hafiz Ahmad v. Sobha Ram (1884) I.L.R. 6 A. 488 | The principle that where an appeal in a suit for a right (here pre-emption) is preferred on the ground whether the right exists or not, the value of the subject-matter in dispute for court-fee purposes is to be determined under the relevant provision (Article (VI) of Section 7 as quoted) and that the subject-matter is the right itself (e.g., right of pre-emption). | The Court relied on this case to support the view that in redemption suits the "subject-matter in dispute" for court-fee valuation is the existence of the right to redeem (i.e., the principal money secured), and not necessarily every incidental monetary claim made in the pleadings. |
| Reference under the Court Fees Act, 1870 reported in I.L.R. 29 M. 367 | Support for the proposition that where the only question in appeal is the amount payable, the subject-matter is a definite amount and the court-fee must be computed on the amount in dispute under Article 1 of Schedule I. | The Court cited this reference to distinguish cases where the appeal only contests quantum (in which event the amount in dispute controls valuation) from cases where the principal question is right to redeem (in which event the principal money secured is the subject-matter for valuation). |
| Decision of the Privy Council (unnamed in the opinion) | The general principle that rights regulating particular public religious institutions depend upon their particular circumstances and must be deduced from their history and immemorial usage. | The Court invoked this principle to explain why absence of the specific description "Uralan" in documents did not preclude treating the Thachutaya Kaimal as the trustee of this particular Devaswom, given its unique usages and historical circumstances. |
Court's Reasoning and Analysis
The Court analysed the problem presented by reference to the Court Fees Act (Sections 4, 6 and particularly Section 7, Clause 9) and Article 1 of Schedule I. It reasoned as follows:
- Article 1 of Schedule I is the general article for computing fees for a plaint or memorandum of appeal not otherwise provided for. The fee under Article 1 must be computed at a stated rate on the amount or value of the subject-matter in dispute.
- In a redemption suit, the plaint may assert multiple claims (principal, arrears of interest, compensation for improvements), but Section 7(9) of the Court Fees Act prescribes that the fee in such a suit shall be computed according to the principal money expressed to be secured by the instrument of mortgage. Hence, for the purpose of Article 1 the value of the subject-matter in dispute is the principal money.
- The Court applied this reasoning to appeals: where the principal question in the appeal is the existence of the right to redeem, the subject-matter in the appeal memorandum is the same as in the plaint (the existence of the right to redeem) and should be valued in the same way (on the principal money secured). Therefore the appellants were not obliged, for court-fee valuation, to state or pay fee on an unspecified extra amount for improvements when the appeal fundamentally contested the right to redeem.
- The Court distinguished situations where the appeal solely contests the quantum payable; in that scenario the subject-matter in dispute in the appeal is a definite monetary amount and court-fee must be computed on that amount (as supported by I.L.R. 29 M. 367).
- On the factual questions referred back to the Subordinate Judge (whether the Yogam or its members had an interest in the suit property and whether the Kaimal was a trustee), the Subordinate Judge found that the Yogam had no proprietary interest entitling them to be parties and that the Thachutaya Kaimal was in law the trustee of the Devaswom. The High Court considered these findings to be findings of fact and binding unless open to legal objection.
- The appellants alleged legal objections to the findings on the basis of misconstruction and wrongful exclusion of evidence (Exs. XI and XVII). The High Court examined this and concluded that the Subordinate Judge had not excluded the exhibits as inadmissible but had properly weighed or criticised them; the Subordinate Judge was entitled to assess their probative value. The High Court therefore accepted the factual findings of the Subordinate Judge.
- Regarding the plaint melcharth, the Court observed that the precise objection that it was a sham had not been clearly taken below or in the grounds of appeal. The main objection was non-receipt of Rs. 5,000; even assuming non-receipt, the Court found prima facie good consideration for the melcharth and that other factors (such as defendants claiming perpetual tenure) justified granting it. Thus the melcharth was not invalidated by the alleged non-payment.
- On the disputed quantum (compensation for paddy land), the Subordinate Judge had found that 904 paras had previously been paid, leaving 310 as payable. The High Court treated this as a factual finding open to no legal objection and declined to interfere.
- On the basis of the statutory construction of the Court Fees Act and acceptance of subordinate factual findings, the Court concluded that the Memorandum of Appeal in the present case was properly stamped.
Holding and Implications
Holding: The Court held that the Memorandum of Appeal was properly stamped; it accepted the Subordinate Judge's factual findings (that the Yogam members had no proprietary interest warranting joinder and that the Thachutaya Kaimal was the trustee of the Devaswom); and it dismissed the appeal with costs.
The direct consequences ordered by the Court were:
- Appeal dismissed with costs.
- Six months' time from the date of the order was allowed for redemption.
- The Memorandum of Objections was dismissed with costs.
Implications: The decision applies the Court Fees Act's valuation rule for redemption suits to treat the principal money secured as the subject-matter of dispute for fee computation when the existence of the right to redeem is the primary issue in the appeal. The Court did not purport to lay down a new broad precedent beyond these applications; its rulings directly affect the parties by upholding the redemption decree, confirming trusteeship, and dismissing objections to the plaint melcharth and the compensation calculation.
1. The suit is to redeem a kanom. The District Munsif dismissed the suit, but the Subordinate Judge, on appeal, gave the plaintiff a decree for redemption on payment of the kanom amount and a certain sum for value of improvements. Against this decree certain of the defendants have filed the present second appeal, and in their appeal memorandum they "question the plaintiff's right to redeem and also contend that if it is held that the plaintiff is entitled to redeem he can only do so on payment of a larger sum for improvements than that fixed by the Subordinate Judge. The extra amount claimed for improvements is not given in the Memorandum of Appeal, and Court-fee has been paid on the kanom amount only. The preliminary objection is taken on behalf of the plaintiff-respondent that the extra amount claimed for improvements should be stated and that Court-fee should be paid on that amount also.
2. The Court-fee payable on a document of any of the kinds specified in the First or Second Schedules of the Court Fees Act is indicated in one or other of those Schedules-Vide Sections 4 and 6 of the Court Fees Act. Article 1 of Schedule I is a general Article indicating the fee payable in respect of a plaint or Memorandum of Appeal not otherwise provided for in the Act, that is, we take it, not falling under any other Article of the First or Second Schedules, as it is those schedules alone which indicate the fee. A perusal of the two schedules will show that a Plaint or Memorandum of Appeal in a redemption suit can only come under Article 1 of Schedule 1. Under that Article the Court-fee has to be computed at a stated rate on the amount or value of the subject-matter in dispute, so that before we can ascertain the amount of the fee we must know the value of the subject-matter in dispute. Now a suit for redemption is a suit to recover property mortgaged on payment of what is alleged to be due to the mortgagee. The plaint may show that in addition to the principal money, arrears of interest and compensation for improvements are payable to the mortgagee before the property can be recovered. It may also indicate that the defendant is claiming more under one head or another than the plaintiff admits to be due. Nevertheless Section 7, Clause 9, of the Court Fees Act lays down that the fee in such a suit shall be computed according to the principal money expressed to be secured by the instrument of mortgage. Hence, in such a suit it must be taken that for the purpose of Article 1, Schedule 1, the value of the subject-matter in dispute is the said principal money. From this it seems reasonable to infer that for the purpose of the Court Fees Act the subject-matter in dispute in a redemption suit is the existence of the right to redeem, any question as to the amount payable as the condition of redemption being regarded as merely incidental to that right. Let us suppose that such a suit is dismissed, and that the Court dismissing the suit has also recorded a finding that if it were found that the plaintiff had the right to redeem he would have to pay more than the amount alleged by him to be due. The plaintiff on appeal would necessarily urge his right to redeem, and might also contest the finding as to the amount payable. The nature of his suit in appeal would, however, be in no way altered, and there is no sound reason why the subject-matter in dispute in the appeal should, for the purpose of the Court Fees Act, be regarded as different from the subject-matter in dispute in the plaint, i.e., the existence of the right to redeem. How then are we to value that subject-matter in the case of the appeal memorandum ? We can only value it as in the case of the plaint, as otherwise there is no provision in the Court Fees Act for valuing it. Suppose again, the plaintiff gets a decree for redemption and the defendant, as in the present case, appeals, contending that the plaintiff has no right to redeem, and in the alternative that if the plaintiff has the right to redeem the amount payble by him is greater than that found by the lower Court. Here again the nature of the suit is in no way changed in appeal. The same questions arise as arose originally and as arise in the appeal by the plaintiff just dealt with above, viz., the existence of the right to redeem, and the amount payable if that right is found to exist. There is no good reason why a defendant appealing on such grounds should be in a worse position than a plaintiff appealing on similar grounds, or why the subject-matter in dispute in the defendant's Memorandum of Appeal should not also for the purpose of the Court Fees Act be taken to be the same as the subject-matter in dispute in the plaint.
3. In support of the views above expressed we may refer to the case of Hafiz Ahmad v. Sobha Ram (1884) I.L.R. 6 A. 488. There it was held that " where an appeal is preferred in a suit for pre-emption on the ground that the right to pre-empt has or has not been established, as the case may be, no matter what other pleas may be taken, the value of the subject-matter in dispute, for the purposes of the Court Fees Act, must be determined as in terms provided in Article (VI) of Section 7 of the Act''. It was also held that the subject-matter of the dispute in such cases was the right of pre-emption.
4. We are not concerned here with the case where in the appeal by plaintiff or defendant against a decree in a redemption suit the only question is as to the amount payable. In such a case the existence of the right to redeem cannot be said to be the subject-matter in dispute in the appeal memorandum, for the existence of that right is not disputed. The subject-matter in dispute is a definite amount. The Memorandum of Appeal can only, however, as before come under Article 1 of Schedule I for the purpose of computing the Court-fee, and under that Article the Court-fee is to be computed on the amount in dispute. The result is the same as that arrived at in the Reference under Court Fees Act, 1870, reported in I.L.R. 29 M. 367.
5. We are, therefore, of opinion that the Memorandum of Appeal in the present case is properly stamped.
6. There is no clear finding as to whether the yogam or the members of the yogam are interested in the suit property. If they are interested in the property within the meaning of Section 85 of the Transfer of Property Act then the suit is clearly bad for non-joinder. We must therefore ask the Subordinate Judge to find on the evidence on record whether the yogam or the members of the yogam are interested in the suit property and if so what is the nature of that interest. We must also ask him to find on the evidence on record whether the kaimal is or is not a trustee.
7. The findings should be submitted within six weeks from this date and seven days will be allowed for filing objections.
8. In compliance with the above order, the Subordinate Judge submitted findings to the following effect:
I find on the 1st issue referred to me that the ' Yogam' has no proprietary interest in Devaswom property; that the only right which they have is the right to take the initiative in getting a Thachutaya Kaimal appointed by the Travancore Maharaja for the Devaswom when there should be a vacancy in that office, to have the accounts of the Devaswom read to them by the accountant of the Thachutaya Kamial in the temple, to perform the ceremonies called Theverseva and Panchasandha in the temple and to see that the spiritual interests of the temple are properly kept up. They have no interest in the suit property such as entitles them to be made parties to the suit. I find the first issue accordingly in the negative.
9. On the 2nd issue, I find for the reasons already stated, that the Thachutaya Kaimai is in law the trustee of the Devas- worn. The evidence on record shows that he has been all along managing the Devaswom properties as the rightful representative of the Devaswom, without any interference on the part of the ' Yogam'. Though in some documents he is styled the proprietor of the Devaswom properties, the description in those documents taken as a whole simply shows that he is the representative of the Devaswom and, as such, the person in whom the properties of the Devaswom are legally vested. The fact that he is not described as Uralan in the documents relating to the Devaswom is of no consequence, because the usages and designations relating to this Devaswom are unique and have nothing in common with those applicable to the ordinary Devaswoms in British Malabar. It has been decided by the Privy Council, that the rights regulating particular public religious institutions in India depend upon theii own particular circumstances and have to be deduced from the history of their foundation and immemorial usage. Such being the case, the non-mention of the word Uralan in connection with the Thachutaya Kaimal is not by any means a ground for holding that he cannot be regarded as the trustee of this particular religious institution. On the evidence on record, I am of opinion that his true legal position is that of a trustee of the Devaswom. I find accordingly on the 2nd issue that the Kaimai is the trustee of the Devaswom.
9. The Court delivered the following
10. The Subordinate Judge has returned findings to the effect that the members of the Yogam have no interest in the property such as entitles them to be made parties to the suit and that the Thachutaya Kaimai is in law the trustee of the Devaswom. These are findings of fact and are binding upon us unless open to some legal objection. It is contended that the findings are vitiated by the facts that the Subordinate Judge has grossly misconstrued certain documents and has wrongly excluded certain evidence as inadmissible. The evidence said to have been wrongly excluded consists of Exs. XI and XVII. The Subordinate Judge did not reject Ex. XI as inadmissible. He merely pointed out that it was not free from suspicion which he was certainly entitled to do. Again the Subordinate Judge did not exclude Ex. XVII. He merely criticised the use made of it by the Zillah Judge in Ex. XIX. The documents said to have been misconstrued are certain judgments filed to show instances where the rights in dispute were asserted or denied. He was entitled to weigh the effect of these judgments in the same way as the other evidence in the case and this is all he seems to us to have done. We therefore accept the findings of the Subordinate Judge.
11. The defendants who appeared in the suit did not contest the genuineness of the plaint melcharth and no issue about its genuineness was framed. As, however, there were some defendants who did not appear, it was necessary to formally prove the melcharth as against them. This necessity was apparently overlooked in the first Court. The Subordinate Judge permitted the formal proof to be given, and in the circumstances we are not prepared to interfere.
12. The next point taken is that the plaint melcharth was merely a sham and not intended to pass any interest in the property. It does not appear that this precise objection was taken in the Courts below, nor can it be said to be clearly taken in the grounds of appeal here. The main ground of objection taken to the melcharth was that a sum of Rs. 5,000 said to have been paid by the plaintiff to the Kaimal for the melcharth had not in fact been paid. Taking this to be so, the circumstance is not enough ground for holding that no interest was intended to pass. Then it is said that the melcharth is invalid because the Kaimal gave it without receiving the Rs. 5,000 and so acted to the prejudice of the Devaswom. Even if the Rs. 5,000 was not received by the Kaimal there was prima facie good consideration for the melcharth as the Subordinate Judge has pointed out. The fact that the defendants were claiming to hold on perpetual tenure was another cogent reason for granting a melcharth.
13. The remaining point taken is that compensation should have been awarded for 1214 paras of paddy land in place of 310. The Subordinate Judge found that 904 paras had been previously paid fori The finding is one of fact and is open to no legal objection.
14. The appeal fails and is dismissed with costs. Six months time from this date is allowed for redemption.
15. The Memorandum of Objections is dismissed with costs.
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