1. When we dealt with First Appeal No. 1 of 1945 and dismissed it with costs on 23rd August 1948, Mr. N.C. Shah for the appellant applied for a refund of court-fees paid by him on the memo of his appeal on the ground that through mistake excessive court-fee had been paid by the appellant. We then directed him to argue this matter before the Taxing Officer and left it open to the Taxing Officer to send the matter back to us if he felt any difficulty in deciding it or if he otherwise thought that the point was of such importance that it should be disposed of by a judgment from the Court itself. Accordingly the matter was argued before the Taxing Officer and he has sent it back to us because he says there is no ruling of our Court on the point in question and that the said point is likely to arise in many other appeals. That is how this matter has come to us again for the determination of the question of the proper court-fees payable in the present appeal.
2. This question arises in this way : When the plaintiff filed the present suit for partition he paid court-fees on the value of the subject-matter of the suit on the basis that the suit fell within Section 7(v), Court-fees Act. In fact that is how all suits for partition were being valued for the payment of court-fees at that time. Subsequently, however, it has been held by a Full Bench of this Court in Shankar Maruti v. Bhagwant Gunaji 49 Born. L. R. 78 : A.I.R. 1947 Bom. 259, that in a suit for partition of joint family property, where the plaintiff claims to be in constructive possession with other coparceners, the court-fee payable on the plaint is under Schedule II, Article 17, Clause (vii) (according to the Bombay Amendment) of the Court-fees Act, 1870, a fixed fee of Rs. 15. It was further held that such suits are not governed either by Section 7(iv)(b) or by Section 7(v) of the said Act. A contrary view had been taken in Balvant Ganesh v. Nana Chintaman 18 Bom. 209 and Dagdu v. Totaram 33 Bom. 658: 4 I C. 243 and until the decision in Shankar Maruti v. Bhagwant Gunaji 49 Bom. L. R. 72 : A.I.R. 1947 Bom 259 the practice consistently was to treat the partition suits as falling under Section 7(v), Court-fees Act. This question was considered exhaustively by the Full Bench who ultimately came to the conclusion that (p. 81) :
'In view of the weight of authority, it should now be declared that the (earlier) Bombay decisions are not good law, and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Schedule II, Article 17, Clause (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15.'
The contention for the appellant is that through mistake he followed the old practice and paid excessive court fees on the wrong basis that the appeal like the original suit from which it arises fell under Section 7(v), Court-fees Act. On the other hand, it has been urged by Mr. Thakor who has appeared amicus curia in these proceedings at our instance that what is true about a partition suit may not necessarily be true about an appeal like the present where the appellant is defendant 1. The argument is that defendant 1 claimed to be in exclusive possession of certain properties in suit on the allegation that they were his separate properties. This contention has been negatived to some extent and it is against the decree based on the finding on this issue that the present appeal has been preferred. In such a case the appeal should be treated as one in which a claim for the possession of land is involved and should as such fall under Section 7(v). We are, however, unable to accept this contention. In view of the Full Bench decision, it cannot any longer be contended that a suit for partition does not fall under Schedule II, Article 17, Clause (vii), and this would be so whatever be the contentions urged by the defendants while resisting the plaintiff's claim for partition. Article 17 provides for court-fees in respect of plaint or memorandum of appeal in the suits mentioned in that article. A suit for partition falls under Clause (vii) of this article as 'any other suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Court-fees Act.' Reading this article by itself, apart from authorities, it seems to us clear that if an appeal, arises from a suit which falls under Article 17, the court-fee payable on the memorandum of such an appeal must be the same as that payable on the original plaint in the suit. This article refers to an appeal arising from certain specified suits and makes no distinction as to whether the appellant is the plaintiff or the defendant. That being so, it seems to us that the proper court-fees payable on the present memorandum of appeal would be those required by Article 17, Clause (vii) of Schedule II, Court-fees Act.
3. Besides, we see no difference in principle between an appeal preferred by a plaintiff and that by a defendant. The plaints in partition suits always seek partition of the properties on the allegation that they belong to an undivided family. If in such cases it is found by the trial Court that some of the properties do not belong to the undivided family as alleged in the plaint, but are the exclusive properties of some of the defendants, the plaintiff's claim in respect of those properties would naturally be dismissed. In such a case if the plaintiff prefers an appeal against the decree dismissing a part of his claim, it is not suggested that the proper court-fees on the memorandum of his appeal would not be the same as on his original plaint. If that is so, it is difficult to appreciate why an appeal preferred by the defendant against a decree based on the finding that the properties in suit are the properties of the undivided family and that they do not belong to the appellant-defendant as his exclusive properties should not similarly fall under Article 17, Clause (vii) of Schedule II. The nature of the suit is primarily determined by the allegations contained in the plaint and this would not be affected by the contentions urged on behalf of the defendant. The suit on the whole would still continue to be a partition suit, and for the purposes of an appeal it would still be an appeal from a partition suit notwithstanding the nature of the findings recorded by the trial Court and without reference to the question as to who the appellant is. That being our view, we think the appellant in this case has paid excessive court-fees by treating the appeal as falling under Section 7(v), Court-fees Act.
4. This question was considered by a Full Bench of the Lahore High Court in Diwan Chand v. Dhani Ram I. L. R. (1941) Lah. 234 : A. I. R. 1941 Lah. 123 . Tek Chand J., who delivered the main judgment for the Full Bench, referred to the words used in the material paragraph of Article 17 of Schedule II and observed that the provision in the article relating to memoranda of appeal is identical with that relating to the plaint in the suit specified, and, therefore, if the appeal arises from such a suit the fee payable thereon is the same and it is immaterial what the findings of the Courts below are and whether the appeal is presented by the plaintiff or the defendant. Substantially the same view has been expressed in Jyoti Prasad Singha Deo v. Jogendra Ram Ray : AIR1928Cal878 , Parmeshur Din v. Har Govind Prasad 14 Luck. 346 : A. I. R. 1939 oudh 90, Jai Pratap Narain v. Rabi Pratap Narain 52 ALL. 756 : A. I. R. 1930 ALL. 443 and Nand Kishore Kumar v. Achambit Kumar 16 Pat. 491 : A. I. R. 1937 Pat. 514.
5. Then it is urged by Mr. Thakor that even if it be held that excessive court-fee has been paid by the appellant there would be no justification for granting a certificate of refund as claimed by the appellant because this case does not fall within the purview of Sections 13, 14 and 15, Court-fees Act. The argument is that the power of the Court to issue a certificate of refund of court-fees is confined to cases falling under any of the three aforesaid sections of the Court-fees Act. This contention, however, is not well founded. There is ample authority in support of the proposition that even in cases not covered by Sections 13, 14 and 15, Court-fees Act, the Court can under Section 151, Civil P. C. order refund of court-fees paid in excess either by mistake, inadvertence or oversight: vide Ahmed Ebrahim v. Government of Bombay : AIR1943Bom50 , Abdul Majid Mridha v. Amina, Khatun I. L. R. (1942) Cal. 253 : A. I. R. 1942 Cal. 639, Vishnu v. Ramunni : AIR1940Mad208 and Jagdesh Chodhury v. Radha Duley : AIR1928Pat35 . As we have already pointed out, the payment of excessive court-fees in this case was due to the fact that under the earlier decisions of this Court suits for partition and appeals arising therefrom were wrongly treated as falling under Section 7(v), Court-fees Act. In such a case we have no hesitation in holding that it would be open to us to grant a certificate to the appellant entitling him to a refund of the court-fees amount paid by him in excess.
6. Then it is suggested that the appellant should be required to pay by way of court-fees three times the amount which the plaintiff would have had to pay in a partition suit. This argument proceeds on the basis that the decree under appeal declares the shares of the plaintiff and defendants 2 and 3 besides defendant 1 who is the appellant, with the result that the appeal in effect is an appeal against three decrees passed respectively in favour of the plaintiffs and defendants 2 and 3, Prom the material on the record we are not satisfied that decrees in favour of defendants 2 and 3 have in fact been drawn up in the present case. That would be done only after the said defendants pay proper court-fees in that behalf. That being so, we do not think it necessary to consider the question as to the proper court-fees if three decrees had in fact been drawn. The present appeal was filed and treated as against the decree passed in favour of the plaintiff in his suit. Treating it as such, we hold that the proper court-fees payable on the memorandum of appeal would be under the present amendment provisions of Schedule II, Article 17, Clause (vii), Court-fees Act, Rs. 18-12-0, We accordingly direct that a certificate should be issued in favour of the appellant authorising him to claim a refund of the balance of the court-fees paid by him on his memorandum of appeal.
7. We wish to express our thankfulness to Mr. Thakor who appeared amicus curia in these proceedings at our suggestion.