Thottathil B. Radhakrishnan, J.

These appeals under Section 96 of Code of Civil Procedure, 'C.P.C.', for short, are heard on the issue as to whether the second proviso to section 52 of the Kerala Court Fees and Suits Valuation Act, 1959, for short, 'C.F. Act', applies to appeals arising from suits merely for "partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property", for which court fee is leviable in accordance with section 37(2) of that Act. It was thought appropriate, in the larger public interest, to pointedly hear this issue, having regard to the glaring pendency of fairly old appeals under Section 96 C.P.C., in the defect list on board, on the simple, but luxurious, ground of non-payment of balance court fee; a good lot of them being appeals only of that nature which would fall under section 52 read with section 37 (2) of the C.F. Act.

2. It needs to be clarified here and now, that we confine ourselves to the type of appeals noted above, to wit, those appeals which would fall squarely under section 52 read with section 37(2) of the C.F. Act and not to any appeal which would fall within the gaze of section 6 of the C.F. Act. The ratio decided of this decision will apply only to appeals under sections 96 and 100 of C.P.C., to which section 52 read with section 37(2) of the C.F. Act applies and to no other appeals.

3. Heard Adv. Sathish Ninan, Adv. Vinod Bhat and the learned Government Pleader, Adv. Noble Mathew.

4. It was as per Act 6 of 1991, that certain amendments were made to the C.F. Act with effect from 15.12.1990, extending to the litigants, the benefit of the provisos regarding payment of only 1/10th of the court fee at the institution of suits and only ?rd court fee at the stage of institution of appeals.

5. The fee leviable under section 37(2) of the C.F. Act does not depend upon the value of the subject matter of the suit. That charging provision applies to a suit where a plaintiff alleges the bundle of facts required to bring the suit as one for partition on the allegation of joint possession. Thereupon, the fee payable would be decided depending upon the forum before which that suit would be laid; the identity of the forum being dependent on the value of the subject matter for determining the pecuniary jurisdiction.

6. Section 52 of the C.F. Act provides that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. The decision of the Division Bench of this Court in Devassia v. State of Kerala & Ors. (1965 KLT 69 : 1965 KLJ 33), is referred to by Adv. Vinod Bhat, contextually, to point out a nice distinction on the question as to what is meant by the term "subject matter."The distinction that he has rightly pointed out is that the value of the subject matter need not necessarily be the value of the property, movable or immovable, involved in the litigation, but the value of the crux of the litigation, that is to say, the value of the fruit aimed at in the litigation, we make reference to this nice distinction only in the context of the fact that while section 52 of the C.F. Act uses the term "subject matter of the appeal", S .37(2) of that Act does not depend upon any such term or determination of the subject matter of the suit or appeal.

7. Adv. Sathish Ninan points out that though the opening part of section 52 of the C.F. Act uses the phrase "subject matter", the second proviso thereto does not carry that phrase and that plain reading of section 4A and appreciation of different other provisions, in particular, section 6 dealing with multifarious suits, may indicate that any view taken in relation to section 52 qua section 37(2) may not ipso facto apply to institution of suits governed by section 4A.

8. Going by the second proviso to section 52 of the C.F. Act, ?rd of the fee payable in an appeal shall be paid at the st