JUDGMENT

Jai Lal, J. - The respondent, Muhammad Shafi Khan, instituted a suit for possession by partition of one-half share in two houses situate at Amritsar, against Mt. Hajaran, appellant, on the allegation that the houses in suit were owned by his deceased wife, Mt. Shah Begam, who died leaving the plaintiff, her husband, and the defendant, her sister, heirs entitled to equal shares in her estate according to Mahomedan Law. He also stated in the plaint that there was movable property worth Rs. 2,000 left by the deceased which was in possession of the defendant about which he would file a separate suit later. He paid a court-fee stamp of Rs. 10 on his plaint. The suit was contested by the defendant on the ground that the court-fee stamp payable on the plaint should have been ad valorem on the value of the share of the plaintiff which according to Mm was Rs. 8,000 and that the suit was not maintainable because the plaintiff had not included in his prayer for partition of the entire property left by the deceased. This property was alleged to be ornaments worth Rs. 2,000 mentioned in the plaint, Rs. 5,000 due from the plaintiff to his deceased wife on account of dower, ornaments pawned by the deceased and subsequently redeemed by the plaintiff. It was also pleaded that the defendant was entitled to be reimbursed in respect of the expense incurred by her in the funeral rites of the deceased.

2. The trial Judge held that as the plaintiff was in possession of a part of the property in dispute a court-fee stamp of Rs. 10 was sufficient especially because it was admitted by the defendant that he had a half share in the houses in dispute. He held that Rs. 5,000 had not been proved to be due from the plaintiff to his deceased wife as her dower and that in any case it could not be held to be the property of the deceased, as, at best, it would be an actionable claim and therefore the plaintiff was not bound to include it in his suit for partition of the two houses. With regard to the claim for ornaments and the other items claimed by the defendant the learned Judge held that their existence had not been proved. He consequently passed a preliminary decree for partition of the two houses and the defendant has lodged an appeal against this decree. At the time of passing the preliminary decree the trial Judge appointed a commissioner for the purpose of effecting the partition and on receipt of his report time was given to the parties to raise objections to it, but the parties agreed before him that, subject to the decision of the appeal against the preliminary decree, the mode of partition suggested by the Commissioner was acceptable to them and consequently a final decree was passed by the trial Judge in accordance with the report. As a matter of form the defendant-appellant has presented an appeal against the final decree also.

3. It is contended on the authority of A.I.R. 1932 Lah. 421, a judgment of a Judge in Chambers of this Court that in a case like the present the proper court-fee is ad valorem on the value of the share of the plaintiff in the property in suit. That case however is distinguishable from the present case because in that case the title of the plaintiff in the property then in dispute was denied and the plaintiff was not found to be in possession of any part of the alleged joint property. The ruling that governs the present case is A.I.R. 1930 Lah. 839, a judgment of a Division Bench of this Court. The facts of that case are almost similar to the present case. In that case also, as found in this case by the learned trial Judge, the plaintiff in the suit for partition was found to be in possession of a part of the property which was the subject-matter of the suit. His title to the share in the property was admitted by the defendants, and it was held that a court-fee stamp of Rs. 10 was sufficient under the circumstances. In the present case also it had been found by the trial Judge that the plaintiff was at the time of the