The nature of the suit is primarily determined by the allegations contained in the plaint, and the proper court-fees on the memorandum of appeal would be the same as on the original plaint in the suit.

GAJENDRAGADKAR, J. :- When we dealt with First Appeal No. 1 of 1945 and dismissed it with costs on 23rd August 1948, Mr. N.C. Shah for the appellant applied for a refund of court-fees paid by him on the memo of his appeal on the ground that through mistake excessive court-fee had been paid by the appellant. We then directed him to argue this matter before the Taxing Officer and left it open to the Taxing Officer to send the matter back to us if he felt act difficulty in deciding it or if he otherwise thought that the point was of such importance that it should be disposed of by a judgment from the Court itself. Accordingly the matter was argued before the Taxing Officer and he has sent it back to us because he says there is no ruling of our Court on the point in question and that the said point is likely to arise in many other appeals. That is how this matter has come to us again for the determination of the question of the proper court-fees payable in the present appeal.

2. This question arises in this way : When the plaintiff filed the present suit for partition he paid court-fees on the value of the subject-matter of the suit on the basis that the suit fell within S. 7(v), Court-fees Act. In fact that is how all suits for partition were being valued for the payment of court-fees at that time. Subsequently, however, it has been held by a Full Bench of this Court in Shankar Maruti v. Bhagwant Gunaji, 49 Bom LR 72 : (AIR (34) 1947 Bom 259 FB), that in a suit for partition of joint family property, where the plaintiff claims to be in constructive possession with other coparceners, the court-fee payable on the plaint is under Sch. II, Art. 17, cl. (vii) (according to the Bombay Amendment) of the Court-fees Act, 1870, a fixed fee of Rs. 15. It was further held that such suits are not governed either by S. 7(iv)(b) or by S. 7(v) of the said Act. A contrary view had been taken in Balvant Ganesh v. Nana Chintaman, 18 Bom 809 and Dagdu v. Totaram, 33 Bom 658 : (4 I. C. 243) and until the decision in Shankar Maruti v. Bhagwant Gunaji, (49 Bom LR 72 : AIR (34) 1947 Bom 259 FB) the practice consistently was to treat the partition suits as falling under S. 7(v), Court-fees Act. This question was considered exhaustively by the Full Bench who ultimately came to the conclusion that (p. 81) : "In view of the weight of authority, it should now be declared that the (earlier) Bombay decisions are not good law, and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Sch, II, Art. 17, cl. (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15."

The contention for the appellant is that through mistake he followed the old practice and paid excessive court-fees on the wrong basis that the appeal like the original suit from which it arises fell under S. 7(v), Court-fees Act. On the other hand, it has been urged by Mr. Thakor who has appeared amicus curia in these proceedings at our instance that what is true about a partition suit may not necessarily be true about an appeal like the present where the appellant is defendant 1. The argument is that defendant 1 claimed to be in exclusive possession of certain properties in suit on the allegation that they were his separate properties. This contention has been negatived to some extent and it is against the decree based on the finding on this issue that the present appeal has been preferred. In such a case the appeal should be treated as one in which a claim for the possession of land is involved and should as such fall under S. 7(v). We are, however, unable to accept this contention. In view of the Full Bench decision, it cannot any longer be contended that a suit for partition does not fall under Sch, II, Art. 17, cl. (vii), and this would