(Prayer: Petition (disposed of on 16-9-1952) praying that in the circumstances stated in the affidavit filed therewith, the High Court will be pleased to order a refund of certificate for the excess court-fee of Rs. 177-7-0 paid on the appeal memo in A.S. No. 45 of 1951 preferred to the High Court against the decree of the District Court, East Tanjore at Negapatam in O.S. No. 21 of 1946 and dated 10-4-1950.)



1. This is a reference under S. 5 of the Court Fees Act. The facts leading up to this reference may be briefly stated. The plaintiff brought an administration suit against her mother and her three sisters for partition of the plaint schedule property into four shares and for delivery of separate possession of her share and for rendition of accounts of other assets and income from the family property. For purpose of jurisdiction, the suit was valued at Rs. 1000, and a fixed court-fee of Rs. 100 was paid under Art. 17-B of the Second Schedule of the Court Fees Act. A preliminary decree was passed, and there was a direction for an inquiry into other assets and income from the family. A Commissioner was appointed for the purpose and on looking into the accounts, he found that the second defendant who was virtually in management of the estate was liable to pay the plaintiff a sum of Rs. 3152-8-9. Basing on the Commissioners report, the District Judge gave a decree inter alia for that sum against the second defendant. The second defendant filed an appeal against that judgment valuing it under Art. 1, Sch. I and paying an ad valorem court-fee on the sum of Rs. 3152-8-9. Realising that she made a mistake in thinking that the matter is governed by Art. 1, Sch. I of the Court Fees Act and in paying a higher court-fee, the appellant has claimed a refund of the excess court-fee.



2. According to the appellant, the appeal would fall for purposes of court-fee under Art. 17-6 of the Second Schedule and not under Art. 1 of Schedule 1 of the Court-fees Act, and as she made a bona fide mistake in paying a higher court-fee, the excess should be refunded to her. This petition for refund is opposed by the Government Pleader who contends that the original court-fee paid is correct and that the matter cannot be brought under Art. 17-B of schedule II. Therefore the point for determination is, which of the two provisions of the Court Fees Act, whether Art. 1 of Sch. 1 or Art. 17-B of Sch. II applies to this case.



3. Before I proceed to examine the cases cited on either side, I will refer to the relevant provisions of the Court Fees Act. Art. 1 Sch. 1 provides that in respect of the plaint or memorandum of appeal (not otherwise provided for in this Act) an ad valorem court fee mentioned in column 3 should be paid. First column of Art. 17-B of the second schedule runs thus:

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 otherwise provided for by this Act.

4. The first question to be answered is what is the provision of the Court Fees Act that is applicable to an administration suit. In Syed Dewan Khaja Moideen Sahib v. Abdul Gaffoor Sahib (I.L.R. 1942 Mad. 455=54 L.W. 663), it was laid down that an administration suit for partition of the assets amongst the heirs of a deceased person and for accounts should be valued under Art. 17-B of the second schedule of the Court Fees Act. That was a suit for the administration of the estate of a deceased Mahomedan woman, for division of the assets amongst the heirs and for accounts. One of the points for decision was whether an administration suit should be treated as a suit for accounts within the meaning of S. 7 (iv)(b) of the Court Fees Act or as one coming under Art. 17-B. The learned Judge decided that the appropriate provision of the Court Fees Act was Art. 17-B and not S. 7 (iv) b) as, in his opinion, an administration suit is not a suit for accounts. He agreed with the opinion expressed by Wads worth J. in Civil Miscellaneous Appeal No. 235 of 1938.

5. I express my respectful accord with the view taken by Horwill, J., in Khaja Moideen v. Abdul Gaffoor (I.L.R. 1942 Mad. 455=54 L.W. 663), and Wadsworth, J., in C.M.A. No. 235 of 193

8. As pointed out by Wadsworth, J. an administration suit by an heir is not merely a suit for accounts. The main relief in such a suit is one of division of the assets of the deceased (both moveable and immoveable) amongst the heirs. Such being the case, the proper provision for purposes of court-fee is Art. 17-B as the subject matter of the suit is incapable of valuation.

6. The next point for consideration is whether the fact that the subject-matter of the appeal is an ascertained sum of money payable by the appellants makes any difference so far as the applicability of the Art. 17-B is concerned. It is argued by Mr. Kuppuswami Iyer for the appellant petitioner that only a fixed court-fee is payable under Art. 17-B although what is attacked in the appeal is the direction to pay a fixed amount to the plaintiff. On the other hand the stand taken by the Government Pleader is that Art. 17-B ceases to apply to an appeal the subject-matter of which is capable of valuation. According to him the subject-matter in dispute in appeal is not co-extensive with that involved in the suit and hence, the appellant petitioner cannot invoke the provisions of Art. 17B.

7. In support of, the contention that an ad valorem court-fee has to be paid and not a fixed court-fee under Art.

17. B of the second schedule he placed reliance on a Full Bench decision of this Court in In re: Dhanukodi Nayakar and others (I.L R. 1938 Mad. 598 [LQ/MadHC/1938/153] =47 L.W. 448). That was a suit for accounts and a preliminary decree was passed for ascertaining accounts. In the final decree, the defendants were held liable to pay certain amount to the plaintiff. In the appeal by the defendant against that judgment, he sought to value the relief claimed by him arbitrarily. It was held by the Full Bench that he could not do it, because, S. 7 (iv)(f) of the Court Fees Act referred to the plaintiff who could put his own value, and had no application to the defendant. I do not think that this case has any bearing on the question for decision before me. If it is conceded, that the present case falls within the purview of S. 7 (iv)(f) then the decision cited will be applicable.



8. Another ruling cited by the Government Pleader is that of Mack, J., in Kadiyala Parvadhanulu v. Eadiyala Parvadhanulu(1949) 2 M.L.J. 402). The learned Judge expressed the opinion, following In re: Dhanukodi Nayakar, and others (I.L R. 1938 Mad. 598 [LQ/MadHC/1938/153] =47 L.W. 448), that in an appeal against a decree passed in a partition suit for payment of a specific sum, ad valorem court-fee has to be paid under Art. 1, Schedule I of the Court Fees Act on the subject-matter of the appeal. The learned Judge remarked that for fiscal purposes the liability of a manager of Hindu joint family business to account to other members of the joint family cannot be differentiated from an ordinary suit for account as between partners.

9. The exact nature of the relief asked for is not clear from the Report. So it is difficult to see how far the principle underlying it is applicable to the case on hand and whether it contains a correct statement of law. If, however, what is meant by the observations extracted above is that there is no difference for fiscal purposes between an ordinary suit for accounts and a suit for partition and for an account of outstandings due to the joint family, having family business, I have to express my respectful dissent from it. The right of a coparcener to demand an account, when it existed is an incident to the right of partition of the family properties. The principle is the same even with regard to the joint family business.

10. In this context the observations of Jwala Prasad, J., in Jyotibati Chaudrain v. Lakshmeswar Prasad Choudhuri (8 Pat. 818 at 828), are apposite.

Ordinarily, therefore, there can be no suit for accounts against a karta. He can be asked not to render an account as an agent on behalf of other members, but only to disclose the properties including cash in his hands and that might necessitate looking into the accounts. A disclosure of property is not rendition of account, the word account in a suit for partition and accounts against a karta being used for convenince sake and not in the legal sense to bring it within the expression used in S. 7 (iv)(i) of the Court Fees Act. S. 7 (iv)(f) applies to a suit for accounts. The test is Can a junior member without claiming a partition, bring a suit for accounts against a karta If he cannot, then the relief as to accounts becomes subsidiary to the principal relief of partition. Therefore it will not be correct to say that wherever there is a relief asking for accounts in the sense of disclosure is a relief asking for accounts in the sense of disclosure as to the existing state of the family finances, the suit embraces two subject matters namely, a partition and an account. A suit for accounts implies a liability to account.

1

1. The other cases relied on by the Government Pleader as supporting his plea are Bala Venkatarama Chettiar v. Maruthamuthu Chettiar (1940) 2 M.L.J. 946=52 L.W. 903), and In re Porkodi Achi (45 Mad. 246 [LQ/MadHC/1921/200] =14 L.W. 624).

1

2. In Bala Verikatarama Chettiar v. Maruthamuthu Chettiar (1940) 2 M.L.J. 946=52 L.W. 903) a suit was filed on a promissory note executed by certain persons as trustees, a decree was passed against them personally and the aggrieved trustees filed an appeal against it. They wanted to value the appeal under Art. 17-6 on the ground that they did not question the decree but were only seeking to avoid a personal liability. It was laid down by Venkataramana Rao J. that Art. 17-B was not applicable as the amount for which they were made liable, was ascertained. I do not think this case has any bearing on the point for determination before me because the suit being for the recovery of a definite sum, it could not be said that it was not possible to estimate the subject matter in dispute. Such a case cannot attract the provisions of Art. 17-B. Therefore the contention that Art. 17-B was applicable was rightly rejected in that case, if I may say so with respect, by the learned Judge.

1

3. In re Porkodi Achi (45 Mad. 246 [LQ/MadHC/1921/200] =14 L.W. 624), a sale by the mother was set aside, in a suit by her daughter as an heir to the estate of her father, subject to her paying certain amount to the vendee which was found to have been incurred by the mother for a binding purpose. In the appeal, the plaintiff wanted to get rid of the direction for the payment of the money to the defendant and the appeal was valued under Art. 17-B of the Court Fees Act. The appellant sought to pay a fixed court-fee of Rs. 10 on the ground that the condition imposed was incapable of being estimated in money value. The learned Judge observed that the valuation of the condition was clearly determined by the amount payable and no other valuation was possible. That case cannot give any assistance in the determination of the question before me because that was not a suit attracting the provisions of Art. 17B of the second schedule of the Court Fees Act.

14. I will now refer to the decisions cited by Mr. Kuppuswami Iyer for the position that an appeal arising out of a suit falling under Art. 17-B is governed by the same provision, although the subject matter in dispute in the appeal is a definite sum.

15. In Vehichami Pillai v. Sankaralingam Pillai (1949) 2 M.L.J. 782=63 L.W. 1154), one of the parties in a partition suit was directed to pay a certain amount to the plaintiff towards equalisation of the shares in a final decree proceedings. The question arose whether the appeal against that decree was to be valued under Art. 17-B of the Second Schedule or under Art. 1 of Sch. I of the Court Fees Act, The learned Judge relying upon the ruling of the Calcutta High Court in Jyoti Prasad Singh Deo v. Jogmdra, ram Boy (56 Cal. 188) [LQ/CalHC/1928/126] , and a decision of the Patna High Court in Jothibati Chaudhrain v. Lakshmeswar Prasad Chouduri (8 Pat. 818), to which I have already alluded, decided that the matter should be treated as wholly incapable of valuation and therefore coming within the meaning of Art. 17-B of the Second Schedule of the Court Fees Act.



16. In Jyoti Prasad Singha Deo v. Jogendra Bam Boy (56 Cal. 188) [LQ/CalHC/1928/126] , in the original final decree granted by the Court, there was a direction for payment of costs aggregating to Rs. 1573 to the successful party. Subsequently, this direction was deleted. The plaintiff preferred an appeal claiming the sum which was originally granted to him by way of costs. The question was whether the ad valorem court-fee was required to be paid under Art. I of Sch. I or whether it was sufficient to pay a fixed court-fee under Art. 17-B of the second schedule. In dealing with that question, the learned Judge observed that

It does not matter whether the ground of attack is with reference to the allotment of specific portion of immoveable or moveable property on the ground of attack is the question of costs.

He also proceeded on the assumption that when owelty was directed to be paid to one of the parties, the party aggrieved was entitled to prefer an appeal valuing it as in a partition suit and that there was no difference in principle between that and a case where the appeal was directed against the order on the question of costs.



17. In Jyotibati Chaudhrain v. Lakshmeswar Prasad Chaudhuri (8 Pat. 818) there was a suit for partition, which resulted in a decree inter alia for a specific sum of Rs. 60,426 in favour of the plaintiff against the manager of the joint family. The aggrieved manager preferred an appeal against that decree. The point having arisen as to the correct provisions of the Court Fees Act applicable, it was decided, that the court-fee was payable under Art. 17-B. In my opinion, the principle, adumbrated in these cases is a sound one and I express my respectful agreement with it.

1

8. Although in all these three cases, the decrees which were attacked in the appeals were passed in partition actions, the principle is the same and applies to an administrative suit like the present one. In my opinion if a suit is to be valued for purposes of court-fees under Art.

17. B, the appeal arising out of it is also governed by the same provision of the Court Fees Act.



19. In this context, the expressions used in Art. 17 B should be borne in mind, namely:

plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute.

The construction to be placed on this clause depends on the question whether the expression in every suit where it is not possible to estimate at a money value governs only the plaint, or the memorandum of appeal as well. If it governs memorandum of appeal also, then although the subject-matter of the memorandum of appeal is capable of valuation, still it falls within the purview of that Article, because the memorandum of appeal is in the suit in which it is not possible to estimate at a money value the subject matter in dispute. A plain (1) 8 Pat. 818 of reading of the clause inclines me to the view that the clause governs both the words suits and memorandum of appeal preceding it.

20. What emerges from the above discussion is that an administration suit for division of the assets of a deceased person amongst his heirs should be valued under Art. 17-B of the second schedule of the Court Fees Act and in an appeal arising out of such a suit, court-fee need not be computed on an ad valorem basis under Art, 1 of the Sch. I of the Court Fees Act as it is also governed by Art. 17-B of the second schedule.

2

1. It follows that it was not necessary to pay the ad valorem court-fee on the sum aggregating to Rs. 3152 8.9 and a fixed court-fee under Art. 17-B would have been sufficient. The appellant is therefore entitled to a refund of the excess amount of court-fee paid by her.

Consequently the office is directed to issue the necessary certificate. The reference is answered accordingly.

2

2. As an indulgence is granted to the petitioner in directing the refund of the court fee, she will pay the costs of the Government Pleader, which I fix at Rs. 30.