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Judgment
M. Madhavan Nair, J.—This appeal is sent up for disposal, as court-fee payable thereon according to the Taxing Officer has not been remitted by the appellants. Shri Taikad Subramonia Iyer contends the court-fee paid to be sufficient.
The decree under appeal is one declaring the plaintiff''s title to the plaint A schedule property and allowing him to recover its possession from the defendants with mesne profits at Rs. 1000/- per annum from date of suit. The valuation shown in the memorandum of appeal runs thus:
A. The market value of a A schedule property fixed on the basis of capitalisation of income, as found by the trial court (Mesne profits found Rs. 1000/- per year) Rs. 10.000/-
B. Mesne profits allowed from date of suit to the date of appeal (4 years) Rs. 4,000/-
Court-fee of Rs. 750/- on the first count and Rs. 3000/- on the second count has been remitted. According to the Taxing Officer, the appellants have to pay as much court-fee as has been paid on the plaint. The decree, shows that the plaintiff had originally valued the A schedule property at Rs. 5,000/- and paid Rs. 375/- as court-fee thereon. Thereafter he amended the valuation at Rs. 50,000/- and paid court-fee or Rs. 3750/- thereon. Thus the plaintiff has paid court-fee on two values of the same property, Rs. 5,000/- and Rs. 50,000/- respectively, amounting to Rs. 4175/- in cumulo, and the Taxing Officer has called upon the appellants-defendants to remit the same sum as fee on their memorandum of appeal.
We are afraid that the Taxing Officer''s decision is not correct. Under Sec. 52 of the Court-Fees Act, the appellant is to pay only such court-fee as is payable on a plaint for the reliefs claimed in appeal. The decree under appeal being one for recovery of landed property with mesne profits at Rs. 1000/- per annum, appellants have to pay court-fee on the market value of the property and on the mesne profit decreed. The taxing Officer has not found deficiency in the court-fee paid in regard to the profits of the property. The controversy is only in regard to the market value of the property, as all are agreed that on the relief for cancellation of the decree for recovery of property court-fee is ad valorem on such value. The contention of counsel is that the court below having fixed the profits of the property at Rs. 1000/- they need value the property only ten times the annual gross profits of the property u/s 7 (2) of the Kerala Court-Fees and Suit Valuation Act, 1959. The Taxing Officer has referred to a commissioner''s report in assessment of the profits of the property. That report is referred to in para 18 of the judgment under appeal. The Taxing Officer has rejected it on the ground that it shows the net profits of the property, while the criterion under Sec. 7 (2) is gross profits minus revenue. Counsel placed before us a copy of the commissioner''s report referred to above. It shows that out of the gross yield of coconut palms and areca palms, the commissioner has deducted 1/4 as cost of maintenance of the palms That deduction must be set at nought to find the gross profits of the property.
We would therefore re-calculate the market value of the property thus: The commissioner has valued coconuts at Rs. 40/- per 100 nuts, and on such valuation estimated the yield of coconut palms at Rs. 1897.20 p. The Court below has found the rate adopted by the commissioner excessive and has reduced it to Rs. 20/- per 100. Taxing Officer has not said that to be low. The profits of the coconut palms has therefore to be fixed at Rs. 948.60 p. As this is after reduction of 1/4 for cost of maintenance, 1/3 has to be added to the same, that is to say, the gross profits of the coconut palm will be Rs. 1264, 80 p. Likewise, the profits of the G areca palms is estimated by the commissioner at Rs. 9.34 p. Adding 1/3 thereto the gross profits of this item will be Rs. 12.45 p. The leaves of coconut palms in a year yield Rs. 66.75p. and the water-logged portion of the property would yield a rent of Rs. 100/- per annum. Adding all these, the gross profits of the property would be as Rs. 1,444/-. The value of the building on the property according to the commissioner is Rs. 2,848.60 p. This has to be added to ten times the gross profits of the property. As the property is a little above 2 acres in estent, a sum of Rs. 4/- has to be deducted for revenue. The market value of the property is therefore 10 (Rs. 1444--Rs. 4) + Rs. 2,848.60 p. = Rs. 17,248.60 p. On this value the appellants have to pay court-fee. They have remitted Rs. 750/- only on this count. The balance remains to be paid. Time to pay the deficit court-fee, one week.