( 1 ) THIS is an appeal under Section 6, U. P. Court fees Act filed by the defts. and it is directed against an order passed by the lower appellate Court dated 2-6-1948, directing the appellants to pay the court, fee on the valuation of the appeal.

( 2 ) IT appears that a suit for maintenance was instituted by one Mt. Jotia against the defts.-appellants. She was allowed to sue in forma pauperis. She was successful in the Court of first instance. Against the decree passed by the Court of first instance, the appellants went up in appeal to the lower appellate Court. A question of the sufficiency of court-fee payable on the memorandum of appeal arose on the report of the Inspector of Stamps. The learned Judge, who was seised of the appeal, decided that the report of the Inspector of Stamps was correct. He accepted it and ordered the appellants to pay court fee according to the value of the appeal. Against the order of the learned Civil Judge, the appellants have now come up in appeal to this court. At the time of decision of the appeal under Order 41, Rule 11, Civil P. C. , the learned judge, Bind Basni Prasad J. expressed some doubts about the correctness of the decision in shambhu Singh v. Mt. Parmeshwara Kuar, F. A. F. O. 21 of 1947, decided on 13-4-1949, by Seth j. He accordingly directed that this appeal be listed before a Division Bench. The view taken by the learned Single Judge, Seth J, in the case of Shambhu Singh v. Mt. Permeshwara Kuar (ubi supra) is exactly the same as was expressed by him in the case of Chief Inspector of Stamps v. Brij Raj Singh, A. I. R. (37) 1950 ALL. 55. We shall deal with this case later in the course of this judgment.

( 3 ) WE have heard learned counsel for the appellants in support of the appeal. Learned counsel has contended that the appellants could not be legally called upon to pay a higher court-fee than the amount of court fee payable by the plaintiff in the Court of first instance.

( 4 ) SECTION 7, Court-fees Act, provides for the manner in which court-fee in certain suits has to be computed. Section 7, as amended by the U. P. Legislature, stands thus:

"the amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (i) In suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities or of other sums payable periodically) according to the amount claimed; (ii) (a) In suits for maintenance and annuities or other sums payable periodically according to the value of the subject matter of the suit and such value shall be deemed to be ten times the amount claimed to be payable for one year. . . . Provided that in suits for personal maintenance by females or minors, such value shall be deemed to be the amount claimed to be payable for one year. . . . . "

The rest of the provisions are not material for purposes of the present case.

( 5 ) IN the Court of first instance, the plff. respondent was allowed to sue in forma pauperis. The question of giving the benefit of the proviso to the plff. therefore, did not arise. As mentioned above, the plff. was successful in the Court of first instance. When the defts. preferred an appeal in the lower appellate Court, the question of court-fee was raised. It was contended on behalf of the appellants that they were entitled to the benefit of the "proviso" appended to Sub-section (ii)of Section 7 inasmuch as the appeal arose out of a suit for personal maintenance by a female. The learned Civil Judge, however, repelled this contention as he held that the "proviso" was intended for the benefit of females and minors only.

( 6 ) THE learned counsel for the appellants has contended that, in the first instance, the benefit of the proviso is available to females and minors when they sue for personal maintenance. When an appeal is filed against the decision given in such a suit, the benefit of the proviso is available to the appellant, be he the plff. or the defendant. Le