The main legal point established in the judgment is that a co-mortgagee must value his suit at the full amount due under the mortgage and pay court-fees accordingly, influencing the determination of the proper court to try the suit.

Alfred Henry Lionel Leach, C.J.

1. This civil revision petition raises the question whether a co-mortgagee when suing to recover his individual share in the mortgage must value his suit according to the full amount due under the deed, or whether he may value it according to his own share. The question has arisen in other cases in this Court and there is a conflict of opinion. It is certainly one of some difficulty. In the present case there is a charge on Immovable properties and not a mortgage, but the same principle admittedly will apply.

2. In the year 1919 one Vanchi Pattar organised a chit fund, of which he constituted himself the manager. The subscriptions were to be paid to him and as security for the discharge of his obligation to the subscribers he created a charge on certain Immovable properties. Rama Pattar, the father of the petitioner and of the fourth and fifth respondents, subscribed to the fund on behalf of his family, which was then joint. Eventually the family became entitled to withdraw from the fund Rs. 3,032, but Rama Pattar died without receiving payment. After his death his sons separated and under the decree passed in a partition suit the petitioner became entitled to two-fifths, the fourth respondent to two-fifths and the fifth respondent to one-fifth of the Rs. 3,032. With two exceptions all subscribers to the fund have now been paid. The two exceptions are Rama Pattars family and one P. M. Krishna Aiyar.

3. In 1936 the petitioner filed a suit in the Court of the Subordinate Judge of South Malabar at Palghat to recover his two-fifths share of the Rs. 3,032 by the enforcement of the charge created by Vanchi Pattar who is now dead. The defendants were the first and second respondents, who are the sons of Vanchi Pattar; the third respondent, who is the alienee of the properties; the petitioners brothers and P. M. Krishna Aiyar. The amount due to P. M. Krishna Aiyar was Rs. 1,429 and therefore at the time the suit was filed the properties remained charged in respect of a total sum of Rs. 4,461. The petitioner prayed for a decree for Rs. 1,212-6-4, the amount of his own share in the Rs. 3,032, and stamped his plaint accordingly. As the amount claimed was less than Rs. 3,000 the Subordinate Judge held that he had no jurisdiction to try the suit and returned the plaint to the petitioner to enable him to present it to the Court of the District Munsif of Alatur. In accordance with the decision of the Subordinate Judge the petitioner presented the plaint to the District Munsif, who accepted it, but in consequence of a plea raised by the third respondent in his written statement the District Munsif framed an issue on the question whether the suit had been properly valued for the purposes of court-fees and jurisdiction. The District Munsif considered that the suit should be valued in accordance with the full amount due under the document creating the charge and therefore ordered the plaint to be returned to the petitioner for presentation to the Court having jurisdiction; in other words, to the Court of the Subordinate Judge. The petitioner then re-presented the plaint to the Subordinate Judge, who adhered to his previous decision and refused to accept it. In these circumstances the petitioner asks this Court, in the exercise of its revisional powers, to set aside the Subordinate Judges order directing the plaint to be returned and compel him to try the suit. In re-presenting the plaint to the Subordinate Judge the petitioner did not amend it in any way and did not tender any additional court-fee. The petitioner admits that he must ask for the sale of all the properties included in the charge and that the total amount due to the members of his family and to P. M. Krishna Aiyar under the document creating it is Rs 4,461, but he says that notwithstanding he is entitled to sue in the Court of the Subordinate Judge on payment of a court-fee based on the amount of his own share only.

4. Section 7 of the Court-fee