Valuation of the suit for partition.

These are References under section 5 of the Court-Fees Act. O.S.. No. 201 of 1949 was filed on the file of the Court of the Subordinate Judge of South. Kanara for division of the plaint B. Schedule immovable properties and C. Schedule movables into 16536 shares and for allotment to the plaintiff of 851 shares therefrom and to direct the first defendant to account for the income of the family properties realised by him and sale-proceeds of the clay sold by him from items 13 and 14 of the B. Schedule to defendants 99 to 102, and other incidental reliefs. The suit was valued in respect of the relief of partition at a sum of Rs. 100. On 30th July, 1952, the learned Subordinate Judge passed a supplementary preliminary decision whereunder defendants 1, 4 and 8 were directed to render accounts to the family for the sale-proceeds of clay realised by them and they were also made liable to pay the other members of the family their shares of Rs. 21,600 after deducting their own share. Defendants 1, 4 and 8 preferred separate appeals to the High Court. The appeal preferred by the first defendant is S.A. No. 3174 of 1953 and that by defendants 4 and 8 is S.R. No. 1257 of 1953. Both the Memoranda of appeals were stamped on a fixed fee of Rs. 100 under Article 17-B of the II Schedule to the Court-Fees Act. The office took the view that as the appeals were directed against the decree for specific amounts, ad valorem court-fee should be paid.

The relevant provisions of the Court-Fees Act read as follows:-

Article 17-B, Schedule. II.-

Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act. When the plaint is presented to or the the memorandum of appeal is against the decree of-

A Revenue Court Ten Rupees

A District Munsiff’s Court or the City Civil Court Fifteen Rupees

A District Court or Sub-Court One hundred rupees

Section 7(iv)(f) for accounts According to the amount at which the relief sought for is valued in the plaint or memorandum of appeal.

Article 1, Schedule I.-

Plaint or written statement, pleading, a set off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court except those mentioned in S.3. When such amount or value exceeds one thousand rupees for every one hundred rupees or part thereof, in excess of one thousand rupees up to five thousand rupees. Seven rupees, eight annas

When such amount or value exceeds five thousand rupees, for every two hundred and fifty rupees or part thereof in excess of five thousand rupees, up to ten thousand rupees. Fifteen rupees.

It is settled law that a relief for partition is not capable of valuation and therefore Article 17-B of Schedule II will apply. It is equally well-established that a relief for accounting is governed by section 7(iv)(f). It has also been held that in a suit for rendition of accounts, when the amount is ascertained and a decree granted for a specific amount the defendant should pay ad valorem court-fee in an appeal against that decree. If a relief for partition and a relief for accounting are two-distinct subject-matters they should be separately valued, even though the two reliefs are clubbed together in the same suit. But if the relief for accounting is implied in the relief of partition, it cannot be said that the former relief is in respect of a different subject-matter. In that case, though it is framed as a separate relief,, in effect and in substance it will be part of the same relief. It is therefore necessary to ascertain the scope of a relief for accounting in a suit for partition. In Parameshwar Dube v. Gobind Dube1, Fletcher, J., after considering the case-law on the subject summarised his view as follows at page 465:

"The result of these authorities I think is that in an ordinary suit for partition in the absence of fraud or other improper conduct, the only accoun