Krishnaswami Nayudu, J.
1. The question that arises for decision in this civil revision petition is whether Article 17B of Schedule II, Court-fees Act, applies to an appeal filed against the final decree in a suit for partition in respect of which court-fee under Article 17B of Schedule II was charged.
2. The plaintiff is the petitioner. He instituted the suit for partition claiming an one-fourth share in the properties, but, as the plaint was incapable of valuation he paid a court-fee of Rs. 100 under Article 17B of Schedule II, Court-fees Act. The preliminary decree for partition was passed and the plaintiff was given a fourth share in the suit properties. A commissioner was appointed for division of the properties and the final decree was passed in pursuance of the commissioner's report whereby it was directed that the parties were to pay and receive certain sums to make up the inequalities in the value of the properties allotted to the respective parties. The final decree provided that the plaintiff should receive a certain amount from the other parties to equalise the shares and he was also granted a decree for a specific amount in respect of his share of the profits. The plaintiff was not satisfied with this and filed an appeal, A. S. No. 85 of 1947, and paid a fixed court-fee of Rs. 100 provided under Article 17B of Schedule II.
3. The court-fee examiner contended that in as much as a final decree had been passed and as specific sums were granted under the final decree and as the appellant claims a larger amount it cannot be said that the claim in the appeal is incapable of valuation and that therefore ad valorem court-fee upon such additional amount as the appellant claims should be paid. The learned District Judge agreed with the court-fee examiner holding that Article 17B of Schedule II would not apply to the appeal and directed the appellant to pay ad valorem fee. As against the said order this revision petition is filed. Article 17B reads as follows :
'Plaint or memorandum of appeal in every 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 this Act.'
And if the plaint or memorandum of appeal has to be filed in a District Court or a Sub-Court a fixed fee of Rs. 100 is provided. It may be stated that this article has been made applicable to a suit for partition of joint family properties by a Pull Bench of this Court in Ramaswami v. Rangachariar, I. L. R. (1940) Mad. 259 : A. I. R. 1940 Mad. 113 So far as the suit is concerned, it is a suit for partition by a member of the joint family of the joint family properties and for consequential reliefs, such as for division of the properties, for a share of profits, etc. If an appeal had been filed on the preliminary decree for partition where the shares of the respective parties have been declared it cannot be said that an appeal against the preliminary decree was one where it was possible to estimate at a money value the subject-matter in dispute. But, after a final decree is passed that contention is not available since the final decree has fixed the amount which the plaintiff had to receive as and by way of equalisation of shares and also the amount which he is entitled to get as and for his share of profits, and, if he appeals in order to get larger amounts he must necessarily mention in the appeal memorandum the additional amount which he claims, and it is therefore clear that that additional amount have a money value and prima facie Article 17B would not be applicable on the ground that it is not possible to estimate at a money value the subject-matter in dispute. If the language of Article 17B is examined it will be seen that on the plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute fixed court-fee only will be payable. This is an appeal arising in a suit where it is not possible to estimate at a money value the subject-matter in dispute as it is a partition suit between members of a joint family and which has been held to be one coming under this article. Since the appeal arises in the suit, Article 17B would be applicable to the appeal as well.
4. Article 1 of Schedule I provides that in respect of a plaint or memorandum of appeal (not otherwise provided for in this Act) ad valorem court-fee given in column 3 should be paid. But since it has been held that in respect of a suit for partition Article 17B is the provision that is applicable, Article 1 of Schedule I cannot be made applicable since it is otherwise provided for in this Act under Article 17B. Since there is a specific provision under Article 17B of Schedule II for this class of suits Article 1 of Schedule I is not applicable and ad valorem court-fee cannot be charged.
5. The subject-matter of the appeal is the amount which the plaintiff is entitled to receive for equalisation of the shares, i.e. owelty payable to him on partition, as also the amount of share of profits consequent on his being declared entitled to a share in the profits, The payment of owelty and of share of profits arise by reason of the effect of the partition and declaration of the right of being entitled to a share and are ordinary incidents in a suit for partition. It cannot be said that they are outside the scope of a partition suit as in a partition suit, the plaint has been held to be one incapable of valuation even though there are additional prayers, besides asking for division, such as for share of profits, accounts, receiver, etc., which otherwise have to be valued independently under the Court-fees Act if they are not included in asuit for partition. I am therefore of opinion that in any view the appeal against either a preliminary or a final decree, arising out of a suit for partition, must be treated as one incapable of valuation and Article 17B of Schedule II is the only article that would be applicable.
5a. In Jyoti Prasad v. Jogendra Ram : AIR1928Cal878 , it was held that in a suit for partition of joint family property the court-fee payable would be a fixed court fee of Rs. 15 and did not matter whether the ground of attack was one with reference to the allotment of specific portion of immoveable: or moveable property or whether it was the question of costs. In that case the subject-matter of the appeal was about the question of the costs of the commission amounting to about Rs. 1573-6-9, and, that was an appeal against the final decree in a partition suit. In Jyotibati v. Lakshmeshwar, 8 Pat. 818 : A. I. R. 1930 Pat. 1, the question arose as to the amount of the court fee payable on the appeal in a suit for partition brought by the plaintiffs against the karta of a joint family. There was a decree for partition of the immoveable properties and also a decree against the karta for a sum of Rupees 60, 426-1-11 1/8, and the karta appellant paid a court fee of Rs. 15 for the appeal. But the court-fee examiner demanded a deficit court-fee of Rs. 1860. It was held that the fixed court-fee that was paid was proper, that it was not a suit for accounts in which that expression was used in Section 7(iv), Court-fees Act and that the karta's accounting is merely a part of the proceedings in the partition of the estate. 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 held that though it was an appeal from a preliminary decree a fixed court-fee was payable and not ad valorem court-fee.
6. The learned Government Pleader referred to a decision of Kunhi Raman J. on a stamp reference in Stamp Register No. 4063 of 1945 where-the learned Judge agreed with the view taken in Diwan Chand v. Dhani Ram, I. L. R. (1941) Lah. 234 : A. I. R. 1941 Lah. 128 and also observed that the practice in this Court is also in accordance with that decision, i. e. payment of a fixed court-fee under Article 17B of Schedule II, Court-fees Act. It appears to me that the only correct and reasonable view to take irrespective of the fact whether the appeal is against a preliminary or a final decree is if the appeal arises in a suit for partition the court-fee payable will be the fee provided for under Article 17B of Schedule II, Court-fees Act.
7. In the result the revision is allowed. The order of the learned District Judge is set aside and I hold the court-fee paid by the petitioner already is the proper court-fee for the appeal. No order as to costs.