VELUCHAMI PILLAI Vs. K R SANKARALINGAM PILLAI

JUDGEMENT

(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 :