1. This is an appeal by Ram Kumar and others against the order of the Civil Judge of Bareilly by which the lower Court has asked the plaintiffs- appellants to pay court-fee on the sum of Rs. 30,000. The appellants' contention is twofold. It has first been urged that, in any case, they could only be asked to pay court-fee on one-fifth of Rs. 82,000, that is on Rs. 16,400. It has further been urged that this is a suit for partition and therefore, Section 7 (iv-A), Court-fees Act, does not apply to this case. The suit of the plaintiffs-appellants was against their father for partition of certain joint family properties. Among the properties were included two items which had already been sold by their father to certain persons. These persons were also made parties to the partition suit. It was said in the plaint that these two properties were worth, in all, Rs. 1,50,000, but the father of the plaintiffs, appellants had sold them for Rs. 82,000 only. The plaintiffs-appellants said that these sale deeds were not binding on them and were not executed for legal necessity and apparently prayed for their share in the proper. ties which had been sold away. The lower Court treated the plaint, therefore, as involving cancellation of these two sale deeds and demanded court-fee on one-fifth of the valuation of the subject-matter.
2. The second point urged on behalf of the appellants raises the question whether Section 7 (iv-A), Court-fees Act, applies to this case. We are of opinion that, as the transferees have been made a party to the partition suit and as the appellants are claiming a share out of those properties which had been sold away and further as they can only get a share if the sale deeds are adjudged void against the transferees also, this is a case which involves cancellation of the sale deeds in question and Section 7 (iv-A), Court-fees Act clearly applies to this case.
3. The next point that has to be decided is whether the appellants should pay court-fee on one-fifth of Rs. 1,50,000 which, they now say, is the market value of the properties sold or on one-fifth of Rs. 82,000 which was the price mentioned in the sale deeds. It has been urged, on behalf of the appellants, that Section 7 (iv-A) is capable of the construction that it is open to a plaintiff either to pay court-fee on the amount of the sale price or on the value of the property. Section 7 (iv-A), Court-fees Act, reads as follows : ' In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value,
(1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter, and
(2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be -
if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.
4. The section deals, firstly, with decrees and secondly with instruments. Decrees are of two kinds, namely, decrees for money and decrees for other property having a market value. Similarly instruments are of two kinds, namely, instruments securing money and instruments securing other property having a market value. It then goes on to say that the court-fees will have to be paid on the value of the subject-matter in all cases. Lastly, the section mentions how that value shall be determined and the words used are these:
If the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.
5. It is clear that the determination of such value has been divided into two parts, firstly, according to the amount for which the decree has been passed or the instrument executed and secondly, with respect to the value of the property in respect of which the decree was passed or instrument executed. It seems to us, on a reading of the entire section, that the amount refers to those decrees which are for money or to those instruments which secure money, while the value of the property in respect of which the decree was passed or instrument executed, refers to those cases where the decree was for other property having a market value or the instrument was for securing other property having such value. This seems to us to be the proper and natural interpretation to be put on this section. Learned Counsel for the plaintiffs-appellants argues that the section really gives an alternative to the plaintiffs either to value this suit on the amount of the sale consideration or on the value of the property. We do not thick that such an alternative was contemplated by the framers of the Act. We may add that wherever an alternative is contemplated, it is always mentioned whether the amount is to be greater or less out of the two possible amounts. For example, in Section 7 (iv-B), it has been mentioned, while dealing with suits for injunction etc., that the amount should be one-tenth of the market value of the property involved or Rs. 50 whichever is greater. Similarly, in Section 7 (viii) when dealing with suits under Order 21, Rule 60 etc., the value is mentioned as hall the amount for which attachment was made or half of the value of the property or interest attached, whichever is less. We are, therefore, of opinion that where the decree is for money or the instrument secures money, the value of the subject-matter is the amount of the decree or the amount of the money secured by the instrument. Where, on the other hand, the decree is for other property having a market value or the instrument secures other property having such value, the value of the subject-matter for the purposes of court fee is the value of the property in respect of which the decree was passed or in respect of which the instrument was executed. We are supported in this view by two cases of the Madras High Court, reported in Jommvaram Balireddi v. Khatipulal Sab alias Abdul Satan and Ors. A.I.R. (22) 1935 Mad. 863 and Kolachala Kutumba Sastri v. Lahka-rajju Bala Tripura Sunderama A.I.R. (26) 1939 Mad. 462 (F. B.). In these cases, the point before us was not discussed, but the interpretation that was put on a somewhat similar provision in the Madras Act was to the effect which we have mentioned above. We are, therefore, of opinion that as this case relates to sale deeds, we have to look to the value of the property in respect of which the sales were effected. That value, according to the plaintiffs-appellants themselves, was Rs. 1,50,000 at least at the time of the sale deeds. The lower Court was, therefore, right in demanding court fee on the sum of Rs. 30,000, that is, on one-fifth of the total value which was Rs. 1,50,000.
6. The appeal is, hereby dismissed with costs to the respondents. The appellants will get two months from today to make good the deficiency.