( 1 ) THIS C. R. P. is filed against the order in LA. No. 358 of 1997 in O. S. No,29 of 1985 on the file of Subordinate Judge, Adoni dated 6-8-1997.

( 2 ) I. A. NO. 358 of 1997 is filed to amend the plaint under Order 6 Rule 17 c. P. C. The suit is filed for specific performance of an agreement of partition entered into on 28-4-1983. The brief facts are that there was a partition between the members of the joint family in respect of all other properties except the properties covered by the agreement dated 28-4-1983. In the said agreement the manner in which the item of the property covered by the agreement is to be partitioned is mentioned. When the defendant did not honour the agreement the plaintiff filed the suit O. S. No. 29 of 1985 seeking specific performance of the agreement dated 28-4-1983.

( 3 ) AT the stage of arguments the petitioner filed three I. As. , i. e. , I. A. Nos. 356, 357 and 358 of 1997. I. A. No. 356 of 1997 is filed to reopen the suit to enable the plaintiff to let in further evidence. I. A. No. 357 of 1997 is filed under order 18 Rule 17 C. P. C. to recall the plaintiff for further evidence and LA. No. 358 of 1997 is filed under Order 6 Rule 17 C. P. C. to amend the plaint as set out therein. All the three petitions were allowed by the Court below. However, while allowing the amendment of the plaint he directed the payment of Court fee on 3/4 of the market value of the property representing his share viz. , Rs. 1,25,752/- under Section 39 (e) of the A. P. Court Fees and Suits valuation Act (for short the act ).

( 4 ) THE petitioner contended before the Court below that he is seeking enforcement of a promise made on 28-4-1983 and, therefore, the Court fee is payable under Section 39 (e) of the Act. Since the promise under the agreement is incapable of value, a fixed Court fee is payable under section 39 (e) read with Section 47 of the Act.

( 5 ) THE learned Judge disagreed with this contention and relying on the decision in Pisupati Ramachandraiah vs. Pisupati Lakshmidevamma1, held that the consideration for the promise sought to be enforced under the alleged agreement, is nothing but the value of such properties regarding which the petitioner is seeking respondent to acknowledge the exclusive right and title when the case of both the parties is that there has been already division in status. In other words, according to the learned Judge under agreement dated 28-4-1983 the petitioner is entitled for a share which is capable of being valued and, therefore, the Court fees payable is not a fixed Court fee, but it should be computed on the 3/4 of the market value of the immovable property. Aggrieved by the same, the present C. R. P. is filed.

( 6 ) THE main arguments of the learned Counsel for the petitioner is that there is no dispute about his right for partition and his share in the properties. The only dispute is with reference to the manner in which the properties are to be divided under the agreement. Since the defendant has not honoured the agreement entered into he was compelled to file the suit. Therefore, it is incapable of valuation. Hence, fixed Court fee is payable under Section 39 (e) read with Section 47 of the A. P. Court Fees and Suits Valuation Act. He relied on the judgment of the Madras High Court in Manikkam vs. Murugesam2. While the learned Counsel for the respondent reiterated his contention raised before the lower Court and submitted that in view of the Bench decision in Pisupathi ramachandraiah s case (supra) the petitioner is liable to pay Court fees on 3/4 of the market value of the property and not a fixed Court fee.

( 7 ) IN order to consider the arguments advanced by both the Counsel it is necessary to refer to Sections 39 and 47 of the A. P. Court Fees and Suits valuation Act. Section 39 reads as follows:-"suits for specific performance:- In a suit for specific performance, with or without possession, fee shall be payable: (a) ------------------------- (b)