The question that arises for decision in this civil revision petition is whether Article 17-B of Schedule II of the Court-Fees Act applies to an appeal filed against the final decree in a suit for partition in respect of which court-fee under Article 17-B of Schedule II was charged.

The plaintiff is the petitioner. He instituted the suit for partition claiming an one-fourth share in the properties, but, as the plaint was incapable of valuation he paid a court-fee of Rs. 100 under Article 17-B of Schedule II of the Court-Fees Act. The preliminary decree for partition was passed and the plaintiff was given a fourth share in the suit properties. A commissioner was appointed for division of the properties and the final decree was passed in pursuance of the commissioner’s report whereby it was directed that the parties were to pay and receive certain sums to make up the inequalities in the value of the properties allotted to the respective parties. The final decree provided that the plaintiff should receive a certain amount from the other parties to equalise the shares and he was also granted a decree for a specific amount in respect of his share of the profits. The plaintiff was not satisfied with this and filed an appeal A.S. No. 85 of 1947, and paid a fixed court-fee of Rs. 100 provided under Article 17-B of Schedule II.

The Court-fee Examiner contended that inasmuch as a final decree had been passed and as specific sums were granted under the final decree and as the appellant claims a larger amount it cannot be said that the claim in the appeal is incapable of valuation and that therefore ad valorem court-fee upon such additional amount as the appellant claims should be paid. The learned District Judge agreed with the Court-fee Examiner holding that Article 17-B of Schedule II would not apply to the appeal and directed the appellant to pay ad valorem fee. As against the said order this revision petition is filed.

Article 17-B reads as follows:

“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 or by this Act”.

And if the plaint or memorandum of appeal has to be filed in a District Court or a Sub-Court a fixed fee of Rs. 100 is provided. It may be stated that this Article has been made applicable to a suit for partition of joint family properties by a Full Bench of this Court in Ramaswami v. Rangachari1. So far as the suit is concerned, it is a suit for partition by a member of the joint family of the joint family properties and for consequential reliefs, such as for division of the properties, for a share of profits, etc. If an appeal had been filed on the preliminary decree for partition where the shares of the respective parties have been declared it cannot be said that an appeal against the preliminary decree was one where it was possible to estimate at a money value the subject-matter in dispute. But, after a final decree is passed that contention is not available since the final decree has fixed the amount which the plaintiff had to receive as and by way of equalisation of shares and also the amount which he is entitled to get as and for his share of profits, and, if he appeals in order to get larger amounts he must necessarily mention in the appeal memorandum the additional amount which he claims, and, it is therefore clear that that additional amount have a money value and prima facie Article 17-B would not be applicable on the ground that it is not possible to estimate at a money value the subject-matter in dispute. If the language of Article 17-B is examined it will be seen that on the plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute fixed court-fee only will be payable. This is an appeal arising in a suit where it is not possible to estimate at a money value the subject-matter in dispute as it is a partition suit between m