ZAMURRAD HUSAIN Vs. RAM SARUP

JUDGEMENT

(1.) THIS is a reference from the Taxing-Officer about the amount of court-fees to be charged in an appeal from a decree passed in a suit for partition. It was suggested by the officer whose duty it is to see that the proper fee is paid that the appeal should be taxed according to the value of the plaintiff's share in the property which was the subject of partition. The suit out of which the appeal arose was one for the partition of property in which the value of the plaintiff's share was estimated at Rupees 7000. There was no dispute about the shares of the parties in the trial Court and a preliminary decree was passed on the plaintiff's allegation. There were some disputes about the allocation of the property and consequently the plaintiff was dissatisfied with the final, decree and instituted the appeal. He paid a fixed court-fee of Rs. 15. The difficulty arises from the wording of Sections 2 and 7 (vi-A), Court-fees Act. The latter section in so far as it is relevant is as follows : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : ... (VI-A) In suits for partition According to one-quarter of the value of the plaintiff's share of the property....

(2.) SECTION 2 defines the term suit as including a first or second appeal from a decree in a suit. According to this definition, the provisions of SECTION 7 (vi-A) may be read as follows: In appeals from decrees in suits for partition--according to one-quarter of the value of the plaintiff's share of the property," but I think the section must be read mutatis mutandis and therefore I should substitute the word appellant for the word plaintiff. It seems to me that the section should, as far as possible, be construed in accordance with common sense, justice and equity. The general intention of the Act is that a plaintiff or appellant should pay court-fees in accordance with the value of the relief which he is claiming. There seems to be no reasonable connexion between the relief claimed in an appeal and the value of the relief claimed by the plaintiff in the original suit, especially if the plaintiff is not the appellant or if the dispute in the appeal is not entirely the same as the contention raised at the time when the, suit, was instituted. It seems to me that the term appellant should be substituted for the term plaintiff where the term appeal is substituted for the term suit and I should read the section as meaning that the court-fee payable in appeal should be on the value of that share of the appellant which is in dispute in the appeal. If no share is in dispute, then I would hold that the section does not apply at all and we must seek re-course to Art. 17 (vi) in Schedule 2 attached to the Act. Where there is no dispute about a share in a suit for partition and where the only question is whether one particular property should be allotted to one party or the other it is really quite impossible to attach any pecuniary value to the dispute. In the appeal with which I am dealing there is no dispute about any share in the appeal and I therefore hold that the proper court-fee has been paid. If there was a dispute about the appellant's share, then that share would be valued according to the provisions of the explanation to SECTION 7 (vi-A) and the court-fee would be paid ad valorem on the value of the share.