M.C. Desai, J. - (1.) This is a reference by the Taxing Officer about the proper amount of court fee payable on the memorandum of appeal.
(2.) Joti Prasad and Mool Chand jointly owned a house in equal shares. Joti Prasad died leaving five sons. Mool Chand also died and is represented by his sons and widow. On 18 -5 -1945 Mool Chand and the two eldest sons of Joti Prasad sold the entire house to Jawahar Singh and Bhup Singh who in turn sold it to Om Prakash and Lachhman Prasad. The suit giving rise to the appeal was instituted by the other three sons of Joti Prasad, who contended that there was no legal necessity for the sale of the half share in the house belonging to the five brothers and and seeking the reliefs of partition of the half share belonging to the five brothers after declaring that the sale deed was null and void and ineffective in respect of the half share and of actual possession over the portion allotted to them. The half share in the house was valued at Rs. 6,000. Advalorem court fee was paid on Rs. 6,000 for the relief of possession and on Rs. 1,200, being one -fifth of the market value, for the relief of cancellation of the sale. The suit was contested by the vendees on the ground that the sale was for legal necessity but was decreed by the trial court which gave to the Plaintiffs a decree for partition of their one -half share and for declaration that the sale was null and void. The appeal has been filed by the vendees; they have paid court fee of Rs. 18/12/ - u/Art. 17 (6) of Schedule II of the Court Fees Act contending that it was not possible to estimate at a money value the subject matter in appeal and that there was uo other provision governing the payment of court fee on the memorandum. The relief sought in the memorandum is that the suit of the Plaintiffs be dismissed because it was not proved that the house was ancestral property, that the sale was valid at least in respect of the share of the two eldest sons who executed the sale deed, that the burden of proving legal necessity was wrongly cast upon the vendees, that the sale was for the benefit of the minor Plaintiffs and, therefore, no question of want of legal necessity arose, that the trial court acted irregularly or illegally in not postponing the hearing of the suit, in not granting an adjournment and in not receiving documents produced by the Appellants and that the suit was not maintainable in the absence of any relief for cancellation of the sale.
(3.) Art. 17 (6) of the second schedule does not apply at all. It provides for payment of court fee on a plaint as well as on a memorandum, in a suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for by the Act. Neither of the two conditions is fulfilled in the present case. The subject matter in dispute is capable of being estimated at a money value and has been provided in S. 7 (vi - v) and S. 7 (iv -A) (2). One fact to be noted is that u/Art. 17 the same court fee is payable on a memorandum of appeal as on the plaint; it is impossible to apply the article to a memorandum of appeal if it was not applicable to the plaint. If the subject matter of the suit could be estimated at a money value or if it was provided for in the Act, Article 17 would not govern the court fee payable on the plaint and if it would not govern the court fee payable on the plaint, it would not govern the court fee payable on the memorandum of appeal also. The Appellants did not plead in the trial court that the court.;