JUDGMENT : KAUL, J. 1. A preliminary objection has been taken to the hearing of this appeal which raises the question what is the proper court-fees payable on the memorandum of grounds of appeal in this case. The facts in so far as they are material for this purpose are as follows : 2. A suit for partition was brought by Keshav and his son Malhar against Keshav' s brother Sadashiv, his son Dattatraya and Keshav' s mother Laxmibai for partition and separate possession of his share in the joint family property. Subsequently, Kamchardra and Anant sons of Vishwanath and Mahadeo and Rangnath sons of Ganpat Rao who were first cousins of Keshav and Sadashiv applied that they were also members of a joint family with Keshav and Sadashiv were entitled to a definite share in the joint family property. These applications were not opposed by Keshav. They were however contested by Sadashiv and the other defendants. Ultimately the applications were allowed and the four applicants above named were impleaded as defendants. Sadashiv admitted that he and Keshav formed a joint family. It was however pleaded on his behalf that Ramchandra, Anant, Mahadeo and Rangnath were not joint with them and had no interest in the joint family property. The learned District Judge of Garoth held on the evidence led before him that Ramchandra and Anant were joint with Keshav and Sadashiv but that Mahadeo and Rangnath were separate. He passed a preliminary decree for partition. Two appeals were preferred against his decision one by Mahadeo and Rangnath and the other by Sadashiv, Dattatraya and Laxmibai defendants Nos.1 to 3. Ramchandra filed cross-objections challenging the correctness of the finding as regards the extent of his share. These matters came up for hearing before Rege, J., and the question was raised before him what was the proper court-fee payable on their memorandums of grounds of appeal by Mahadeo and Rangnath. They had paid a court-fee of Rs.15/- only under Article 11 of the Indore Court-fees Act. The learned Judge took the view that these appellants were liable to pay 'ad valorem' court-fee on the value of their share. They were called upon to fix a value on the share claimed by them and pay court-fee according to the figure at which the share was valued. The appellants valued their share at Rs.6000/- and paid the requisite court-fee. They were called upon to fix a value on the share claimed by them and pay court-fee according to the figure at which the share was valued. The appellants valued their share at Rs.6000/- and paid the requisite court-fee. Having heard the parties Mr. Justice Rege was of opinion that proper issues had not been framed in the trial court and all the questions that should have been considered were not decided. He accordingly framed fresh issues and remanded the case to the trial Court for decision in the light of the observations made by him. The learned District Judge thereupon heard the case afresh. He held on the evidence which was before him that Ganpat father of Mahadeo and Rangnath was separate from his brother Khanderao father of Keshav and Sadashiv and accordingly had no interest in the joint family property. As regards Ramchandra and Anant. his finding was that though they formed a joint family with Keshav and Sadashiv all the property in suit was self-acquired property of Khanderao in which Ramchandra and Anant could not claim a share. He however held that Keshav was entitled to a third share in the property in suit and passed a preliminary decree for partition. Dissatisfied with this decision Mahadeo and Rangnath, and Ramchandra and Anant have preferred these two appeals. 3. An objection was raised by Mr. Bharucha learned counsel for Sadashiv and Mr. Kulkarni who appears for Laxmibai that Mahadeo and Rangnath were liable to pay 'ad valorem' court-fee on the memorandum of their grounds of appeal. It may be mentioned that though in compliance with the order of Rege, J., Mahadeo and Rangnath had paid 'ad valorem' court-fee in their appeal before the case was remanded the present appeal was filed by them on a stamped paper of Rs.15/-only. Mr.Newaskar learned counsel for the appellants challenges the correctness of the view taken by Rege, J., and contends that irrespective of whether the case is covered by Art.11 of the Indore Court-fees Act or S.4 of that Act he is liable to pay a court-fee of Rs.15/- ordy. The two learned counsel Mr. Bharucha and Mr. Kulkarni who raised the preliminary objection put forward different grounds in support of their contention. Mr. The two learned counsel Mr. Bharucha and Mr. Kulkarni who raised the preliminary objection put forward different grounds in support of their contention. Mr. Bharucha contended that the appellants having accepted the decision of Rege, J., and having failed to challenge it when he filed his first appeal after remand was bound by that decision. He argued that the matter was 'res judicata' Mr.Kulkarni, on the other hand, contended that inasmuch as the appellants were not in possession of any part of the joint family property and their claim was in effect one not only for a declaration of their right but also for possession of a share in the joint family property they must pay 'ad valorem' court-fee according to the figure at which they put their share. We will deal with each of these contentions in order. 4. Reference was made by Mr. Bharucha to S.105, Civil P.C. He argued that having failed to challenge the decision of Rege, J., on the question of court-fee by incorporating a ground to that effect in the memorandum of their grounds of appeal when they challenged the decision of the trial court after remand they could not challenge it in this appeal which is filed against the decision of a single Judge of this Court. It may be mentioned incidentally that after the decision of the case by the trial Judge subsequent to remand the appeal came up before Mehta, J., who affirmed the decision of the trial court. According to Mr. Bharucha' s contention it was open to Mehta, J., to set aside the decision of Rege, J., on the question of court-fee. No satisfactory answer was however forthcoming when I put it to the learned counsel whether if the appeal which was heard by Mehta, J. had come up for hearing before Rege, J., he himself could be free to set aside his previous decision given before remand. I am clear that no question of 'res judicata' arises in the present case nor has S.105, Civil P.C. has any application to it. Apart from other grounds section 105 is inapplicable because it applies only to cases where there is any error or irregularity "affecting the decision of the case". A question relating to court-fees is, we are clear, not an error or irregularity of this description. 5. Turning now to the ground urged by Mr. Apart from other grounds section 105 is inapplicable because it applies only to cases where there is any error or irregularity "affecting the decision of the case". A question relating to court-fees is, we are clear, not an error or irregularity of this description. 5. Turning now to the ground urged by Mr. Kulkarni we may point out that under Art.11 of the Indore Court-fees Act the amount of court-fee payable by a defendant who is a party to the suit for partition and files an appeal against the decision given against him, would depend entirely on the amount of the court-fee that was paid by the plaintiff. Article 11 opens with these words : "Plaint or memorandum of appeal in each of the following suits." It is cl.VI of this Article which according to Mr. Newaskar applies to this case. It runs : "Every other 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." As observed by Chitaley and Rao in their Commentary on the Court-fees Act 1944, Edition page 128 (Notes on section 7(IV) (b) note (2), it is now generally settled in most of the High Courts that this clause (clause 7(IV)(b) does not apply to a suit for partition by a co-owner who has not been excluded from the enjoyment of the common property. This view, the commentators add is based on the ground that the words in the clause "to enforce the right to share in the property" imply that the plaintiff has been excluded from the enjoyment of such property and are inapplicable to a case in which he has not been so excluded. Reference in support of this view is made to a number of cases including - 'Kameshwar Singh v. Rajbansi Singh', AIR 1943 Pat 433 (438) (A); - 'In re Nandlal', AIR 1932 Cal 353 (355) (B); - 'Asa Ram v. Jagan Nath', AIR 1934 Lah 563 (573) (FB) (C) and- 'Bhagwan Appa Wani v. Shivalla Wani', AIR 1927 Nag 248 (249) (D). See also in - 'Ma Ma Nyun v. Maung Mya', AIR 1938 Rang 76 (78) (E). See also in - 'Ma Ma Nyun v. Maung Mya', AIR 1938 Rang 76 (78) (E). It has been held by Madras and Allahabad High Courts as well as in Sind that such a suit comes under cl.(VI) of Art.17 of the II schedule which is the same as article 11(VI) of the Indore Court-fees Act. See - 'Mallayya v. Jagannadhamma', AIR 1942 Mad 103 (1) (F);- 'Narain Mohan Dev v. Mt. Krishna Ballabhi Devi'. AIR 1935 All 292-293 (G) and - 'Haji Yusuf v. Ghulam Hussain Kassim', 16 Ind Cas 771 (772) (Sind) (H). We respectfully agree with the view taken in these decisions as to the applicability of Art.17 of II schedule to such cases. In the case before us admittedly Keshav was in joint possession of the family property with Sadashiv. In any case, he had not been excluded from joint possession and accordingly the suit was rightly filed on a plaint whereon a court-fee of Rs.15/- was paid. 6. A reference to the opening words of Art.11 of Indore Court-fees Act will show that the article draws no distinction between an appeal filed by a plaintiff or that filed by a defendant when it arises out of a suit covered by that article. The Indore Court-fees Act is a fiscal statute and must be construed strictly in favour of the citizen. In the present case, the plaintiff was admittedly in possession of the joint family property with another coparcener. Mahadeo and Rangnath were impleaded as defendants. Even though they were not in possession of any portion of the family property an appeal filed by them would be clearly covered by this article. We hold therefore that the court-fee of Rs.15/- paid on their memorandum of grounds of appeal by Mahadeo and Rangnath is sufficient. The preliminary objection is overruled. 7. B. K. CHATURVEDI, J. :- I agree.