KAMALAM Vs. SARADAMBAL AND ORS.

JUDGEMENT

(1.) THIS is a reference under Section 5, Court -fees Act. The facts leading up to this reference may be briefly stated. The plaintiff brought an administration suit against her mother and her three sisters for partition of the plaint schedule property into four shares and for delivery of separate possession of her share and for rendition of accounts of other assets and income from the family property. For purpose of jurisdiction, the suit was valued at Rs. 1,000/ - and a fixed court -fee of Rs. 100 was paid under Article 17 -B of Schedule 2, Court -fees Act. A preliminary decree was passed, and there was a direction for an inquiry into other assets and income from the family. A Commissioner was appointed for the purpose and on looking into the accounts, he found that defendant 2 who was virtually in management of the estate was liable to pay the plaintiff a sum of Rs. 3152 -8 -9. Basing on the Commissioner's report, the District Judge gave a decree 'inter alia' for that sum against defendant 2. Defendant 2 filed an appeal against that judgment valuing it under Article 1, Schedule 1 & paying an 'ad valorem' court -fee on the sum of Rs. 3152 -8 -9. Realising that she made a mistake in thinking that the matter is governed by Article 1, Schedule 1, Court -fees Act and in paying a higher court -fee, the appellant has claimed a refund of the excess court -fee.

(2.) ACCORDING to the appellant, the appeal would fall for purposes of court -fee under Article 17 -B of Schedule 2 and not under Article 1. Schedule 1, Court -fees Act, and as she made a 'bona fide' mistake in paying a higher court -fee, the excess should be refunded to her. This petition for refund is opposed by the Government Pleader who contends that the original court -fee paid is correct and that the matter cannot be brought under Article 17B of Schedule 2. Therefore the point for determination is which of the two provisions of the Court -fees Act, whether Article 1 of Schedule 1 or Article 17B of Schedule 2 applies to this case.

(3.) THE first question to be answered is what is the provision of the Court -fees Act that is applicable to an administration suit. In - -'Khaja Moideen Sahib v. Abdul Gaffoor', : AIR 1942 Mad 247 (A), it was laid down that an administration suit for partition of the assets amongst the heirs of a deceased person and for accounts should be valued under Article 17 -B of Schedule 2, Court -fees Act. That was a suit for the administration of the estate of a deceased Mahomedan woman, for division of the assets amongst the heirs and for accounts. One of the point for decision was whether an administration suit should be treated as a suit for accounts within the meaning of Section 7(iv)(b), Court -fees Act or as one coming under Article 17 -B. The learned Judge decided that the appropriate provision of the Court -fees Act was Article 17 -B and not Section 7(iv)(b) as, in his opinion, an administration suit is not a suit for accounts. He agreed with the opinion expressed by Wadsworth J. in - - 'Civil Misc. Appeal No. 235 of 1938 (Mad) (B)'.