JUDGMENT : RICHARDS, J.:— This appeal arises in a suit which was brought by the plaintiff to recover possession of a one-third share in certain house property. The Court of first instance was of opinion that the Court-fee paid was insufficient, and after allowing the plaintiff time to make good the deficiency, rejected the plaint on the plaintiff's refusal to make good the fee. The lower appellate Court reversed the order of the Court of first instance, and remanded the case for disposal on the merits. From this order the present appeal is taken. The lower appellate Court was of opinion that the suit was really a suit for partition and nothing more, and that in that case the Court-fee was the fee of Rs. 10 which was duly paid. We also think that if the suit were merely a suit for partition, this decision would be quite right. We also agree with the lower appellate Court that in determining what the Court-fee should be, regard must be had to the allegations of the plaintiff in his plaint and to the relief sought, apart altogether from evidence. We accordingly have considered the plaint in the present case, and, after a perusal of it we are clearly of opinion that the suit was in fact a suit to establish the plaintiff's title to a one-third share in the property and to recover possession of the same, a claim for partition being added to make the relief sought effectual. This being so, the Court fee was not the fee of Rs, 10 payable under article 17, clause VI of schedule II of the Court Fees Act, but it should have been an ad valorem fee on the value of the share. In the case of Kirty Churn Mitter v. Annarth Nath Deb, [1882] I.L.R., 8 Cal., 757. Sir Richard GARTH, Chief Justice, says:— “If the plaintiff's suit had been to recover possession of, or establish his title to the share which he claims in, the property, he must have paid an ad valorem stamp fee on the value of the share.” He then goes on to say that in the case before him the plaintiff merely claimed partition, or, in other words, to “change the form of his enjoyment” of the property, and article 17, clause VI of schedule II applied. The same view was taken in the case of Balvant Ganesh v. Nana Chintamon, [1894] I.L.R., 18 Bom., 209.. We accordingly consider that the decision of the Court of first instance was right, and that the order of that Court must be restored. We allow the appeal, set aside the order of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.