1. This is a plaintiff's appeal under Section 6A, U. P. Court-fees Act, against an order of the Court below requiring her to pay an additional court-fee of Rs. 1087-8-0 on a sum of Rs. 13,200.
2. The plaintiff appellant is the wife of the defendant. At the time of her marriage the defendant bound himself by an agreement to pay her maintenance allowance, which was described as 'kharch-i-pandan' in the agreement, in case the defendant married another wife during the plaintiff's lifetime. This maintenance allowance was to be paid at a rate which was to be half the amount of the salary payable to the defendant for the time being. The defendant a Government servant. The defendant remarried during the plaintiff's lifetime, and as a consequence of it, the plaintiff instituted the present suit claiming to recover a sum of RS. 23,000 as the balance of her dower, and Rs. 9,000 as the arrears of kharch-i-pandan, in all a sum of RS. 32,000 She paid ad valorem court-fee on this sum of Rs. 32,000. She claimed a further relief, which is expressed in the following words:
'A decree for realisation till her death of half the emoluments for the time being receivable by the defendant, as his salary and allowances be awarded to the plaintiff.'
The plaintiff paid no court-fee in respect of this relief.
3. The Court below has found that the defendant is getting a salary of Rs. 2,200 per month, and that half the amount of the salary for one year comes to Rs. 13,200 and that a further ad valorem court-fee is payable oil this amount of Rs. 13,200. The finding of the Court is based on the ground that Section 7 (ii) (a), U. P. Court-fees Act, read with the proviso to it, is applicable to the present case.
4. It is contended by the learned counsel for the appellant that this section does not apply to the present case, and that the court-fee is payable in accordance with Article 17 (vi) of Schedule II, Court-fees Act, because, the learned counsel contends, this relief is incapable of valuation. In my opinion, there is no force in this contention.
5. Section 7 (ii) (a), U. P. Court-fees Act is, divisible into two portions. The first portion, describes the nature of the suit to which it, applies; the second portion describes the method in which the subject-matter of the relief upon which the court-fee is payable is to be valued. According to the first portion Section 7 (ii) (a) applies to suits for maintenance and annuities or other sums payable periodically. It is not disputed that the present suit is a suit of this description, and that this section would be applicable but for the contention put forward by the learned counsel for the appellant, namely, that the relief is not capable of valuation. It has, therefore, to be considered whether the relief is incapable of valuation, or whether the second part of the section also applies.
6. The second part of the section provides that the court-fee shall be payable according to the value of the subject-matter of the suit, and that such value shall be deemed to be ten times of the amount claimed to be payable for one year. It is subject to the proviso that in suits for personal maintenance by females and minors such value shall be deemed to be the amount claimed to be payable for one year. Therefore, in a suit, such as the present suit, the value of the subject- matter is to be deemed to be the amount claimed to be payable for one year.
7. The question for my consideration is whether it is possible to hold in this case that the amount payable for one year is capable of being ascertained for, if it is capable of being ascertained, it cannot be held that the relief claimed is incapable of valuation. The proviso does not mention the year which is to be taken into account in determining the amount payable for that year. In the absence of any such specification in the section, in my opinion, the proper interpretation would be to hold the 'one year' referred to as the year in which the suit is brought. The Court below has found that the salary of the defendant at the time of the suit was Rs. 2,200 per month. It is, therefore, obvious that the value of the subject-matter, namely, the amount which would be payable to the plaintiff under the agreement in the course of the year from the date of the suit is capable of being ascertained. The Court below was, therefore, right in holding that the case is governed by Section 7 (ii) (a), Court-fees Act, and not by Article 17 (vi) of Schedule to the Court-fees Act.
8. This appeal is, therefore, dismissed with costs.