The court-fee payable on the memorandum of appeal in a partition suit depends on the substance of the suit and not on the form.

JAGANNADHADAS, J.

( 1 ) THIS is a Court-fee reference coming before me as the Taxing Judge on a reference made by the taxing officer. The question is as to the proper Court-fee payable on the memorandum of appeal. The facts giving rise to this reference may be stated as follows in the wording of the taxing officer: plaintiffs-respondents Nos. 1 to 3 brought a suit for partition of some properties described in Schedules Kha, Ga, Gha and Una of the plaint, into 3 equal snares and for possession of one-third share therein along with defendant No. 4. With respect to the shares of the parties and also with regard to the division of the joint family properties into 3 shares giving to plaintiffs 1 to 3 and defendant 4 one-third share, defendant 1 one-third share, and defendant 2 one-third share, there was absolutely no dispute. The real controversy in the suit centred round the properties to be actually divided. The appellant-defendant 1 contended that items Nos. 1, 3 and 4 of Schedule Ga properties measuring an area of 3. 49 acres, 29. 29 acres and 10. 40 acres respectively were his separate and exclusive properties and not liable for partition. This contention was overruled by the learned Court below and hence this appeal. "

( 2 ) THE question which has been raised, by the taxing officer on the reference is, whether the court-fee payable on the memorandum of appeal in these circumstances, is the fixed court-fee under Article 17-A, Schedule II of the court-fees Act as amended by the Orissa Act, or ad valorem Court-fee payable under Article I, Schedule I of the Court-fees Act. There can be no dispute that article I is in the nature of a residuary Article and will not be applicable where any other Article specifically applies. Article 17 of the Court-fees Act as it originally stood has been substituted by two Articles, 17 and 17-A by virtue of orissa Act V of 1939 with a further surcharge by Sectioin 2 of Orissa Act XX of 1947. Article 17-A of the Orissa Act, 1939 is the same as Article 17, Sub-article

(6) of the main Act and is in the following terms: 17a. 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- other wise provided for fay this Act, when the plaint is presented to or the memorandum of appeal is against the area of (a) a Bevinue Coat in Ten Rupeesthe district of ganjam or keraput (b) any other Fifteen Rupees if the revenue Court of value for purposes of a District Judge, jurisdiction does not sabordinate exceed Rs. 4000 one judge or Munsif. handred rupees if such value exceeds rs. 4000.

( 3 ) IT has been held that in partition suits, where the plaintiff claims the allotment of his separate share of the joint property and separate possession thereof, he claims nothing more than the conversion of the joint possession of the whole into a separate possession of the allotted, part and that the subject- matter in dispute therefore is only the right to conversion in the mode of enjoyment and that it is not capable of being estimated in money value. It has accordingly been held that to such suits Article 17-A applies. The further question that arises is where in such a suit the defendant claims certain items of property as his separate property and as not liable to partition and where that issue has been decided one way or another and the aggrieved party has to go up in appeal in respect of that issue, whether it is not reasonable to say that the subject-matter in dispute in the appeal is really the title to certain properties and is therefore capable of valuation and consequently ad valorem court-fee is payable. This certainly looks plausible; but it has been held in a number of cases that Article 17 (6) (which corresponds to Article 17-A of the orissa Amendment Act of 1939) applies to such cases and that the memorandum of appeal is chargeable with the same fee as that on the plaint and does not depend upon the decision of the Court on