An administration suit for division of the assets of a deceased person amongst his heirs should be valued under Article 17-B of Second Schedule of the Court-Fees Act and in an appeal arising out of such a suit, court-fee need not be computed on an ad valorem basis under Article 1 of Schedule I of the Court-Fees Act as it is also governed by Article 17-B of Second Schedule.

This is a reference under section 5 of Court-Fees Act. The facts leading up to this reference may be briefly stated. The plaintiff brought an administration suit against her mother and her three sisters for partition of the plaint schedule property into four shares and for delivery of separate possession of her share and for rendition of accounts of other assets and income from the family property. For purpose of jurisdiction, the suit was valued at Rs. 10,000 and a fixed court-fee of Rs. 100 was paid under Article 17-B of Second Schedule of the Court-Fees Act. A preliminary decree was passed, and there was a direction for an enquiry into other assets and income from the family. A Commissioner was appointed for the purpose and on looking into the accounts, he found that the 2nd defendant who was virtually in management of the estate was liable to pay the plaintiff a sum of Rs. 3,152-8-9. Basing on the Commissioner’s report, the District Judge gave a decree inter alia for that sum against the 2nd defendant. The 2nd defendant filed an appeal against that judgment valuing it under Article 1, Schedule I and paying an ad valorem court-fee on the sum of Rs. 3,152-8-9. Realising that she made a mistake in thinking that the matter is governed by Article 1, Schedule I of the Court-Fees Act and in paying a higher court-fee, the appellant has claimed a refund of the excess court-fee.

2. According to the appellant, the appeal would fall for purposes of court-fee under Article 17-B of 2nd Schedule and not under Article 1 of Schedule I of the Court-Fees Act and as she made a bona fide mistake in paying a higher court-fee, the excess should be refunded to her. This petition for refund is opposed by the Government Pleader who contends that the original court-fee paid is correct and that the matter cannot be brought under Article 17-B of Schedule II. Therefore the point for determination is, which of the two provisions of the Court-Fees Act, whether Article 1 of Schedule I or Article 17-B of Schedule II applies to this case.

3. Before I proceed to examine the cases cited on either side, I will refer to the relevant provisions of the Court-Fees Act. Article 1, Schedule I, provides that in respect of the plaint or memorandum of appeal (not otherwise provided for in this Act) an ad valorem court-fee mentioned in column 3 should be paid. First column of Article 17-B of 2nd Schedule runs thus:

“Plaint or memorandum of appeal in every suit where it is not possible to est’mate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.”

4. The first question to be answered is what is the provision of the Court-Fees Act that is applicable to an administration suit. In Khaja Moideen v. Abdul Gaffoor1, it was laid down that an administration suit for partition of the assets amongst the heirs of a deceased person and for accounts should be valued under Article 17-B of 2nd Schedule of the Court-Fees Act. That was a suit for the administration of the estate of a deceased Mahomedan woman, for division of the assets amongst the heirs and for accounts. One of the points for decision was whether an administration suit should be treated as a suit for accounts within the meaning of section 7(iv)(b) of the Court-Fees Act or as one coming under Article 17-B. The learned Judge decided that the appropriate provision of the Court-Fees Act was Article 17-B and not section 7(iv)(b) as, in his opinion, an administration suit is not a suit for accounts. He agreed with the opinion expressed by Wads-worth, J., in Civil Miscellaneous Appeal No. 235 of 1938.

5. I express my respectful accord with the view taken by Horwill, J., in Khaja Moideen v. Abdul Gaffoor1 and Wadsworth, J., in C.M.A. No. 235 of 1938. As pointed out by Wadsworth, J., an administration suit by an heir is not merely a suit for accounts. The main relief in such a suit is one of division of the assets of the deceased (both movable and immovable) amongst the heirs.