K RAMA BHAT Vs. PARVATHY AMMA
HIGH COURT OF KERALA
K. RAMA BHAT
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(1.) THE controversy in these revision petitions relates to the Court fee payable on a memorandum of appeal from the final decree in a suit for partition. THE answer to the controversy depends on the true construction of Art. 17-B of Schedule II of the Court-fees Act,1870,as amended in Madras, and obtaining in the year 1953 when the suit for partition, the final decree from which was appealed against, was filed. Art. 17-B reads as follows:
(2.) IT is common ground that it is not possible to estimate at a money value the subject-matter in dispute in the original suit in which the final decree was passed and that a plaint in that suit was properly stamped with the fixed fee of Rs 100/ -.
The expression "suit" used in Art. 17-B, as we understand it means the original suit and the words, Where it is not possible to estimate at a money value the subject-matter in dispute" should refer to the original suit concerned and not either to the word "plaint" or to the words "memorandum of appeal. "
Art. 17 (vi) of Schedule II of the Court-fees Act 1870, reads as follows: Table:#2 That Article has come up for judicial discussion in Diwan chand v. Dhani Ram and others reported in AIR. 1941 Lahore 123 (F. B. ). Tek chand J. with whom the other judges agreed said: "i do not see why the wording of Art. 17 which are plain and explict should not be given their ordinary meaning. They show clearly and indubitably that when a suit falls under any one of the clauses of Art. 17, sch. II, the plaint as well as the memorandum of appeal arising from such a suit, is chargeable with a fixed court fee of ten rupees only irrespective of whether the subject-matter in appeal is or is not capable of being estimated in money value".
(3.) THIS decision was followed by a Full Bench of the nagpur High Court (Sinha C. J. and Hidayatullah and Mudholkar JJ.) in Manohar shamrao and others v. Manorama Bai reported in AIR. 1952 Nagpur 350. In that case the second question referred for decision to the Full Bench was: "is court-fee payable on a memorandum of appeal in a suit for partition to be determined by reference to the value of the subject-matter in appeal or by reference to the fact that the court-fee leviable on the plaint was governed by Art. 17 (vi) Schedule II? The Full Bench after a discussion of the authorities on the subject answered the question as follows: "the court-fee payable on a memorandum of appeal in a suit for partition which falls under Art. 17 (vi ). Schedule II of the court-fees Act would be the same as that leviable on a plaint and is not to be assesse on the basis of the value of the subject-matter in appeal. "
The decision of the Nagpur High Court has been followed by the High Court of Andhra Pradesh in Damisetti Sathyanarayana Murthy and another v. Damisetti Bhavanna and others reported in AIR. 1957 Andhra pradesh 766 and in re-Rami Reddy and others reported in AIR. 1962 Andhra pradesh 397 and by the High Court of Mysore in M. Nagendriah v. M. Ramachandriah and another reported in 1953 Mysore 1c8.;
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