Judgment :- 1. This second appeal is in a suit instituted in the Malabar area in 1948. Therefore, by reason of S.87(2) of Madras Act XIV of 1955 and S.87(2) of Kerala Act 10 of 1960, the court fee payable on the memorandum of appeal is governed by the provisions of the Court Fees Act, 1870 as in force in Madras in 1948. The suit is for partition, but the subject-matter in dispute in the appeal is capable of being valued in terms of money and has, indeed, been valued at Rs. 50,000 and odd in the memorandum of appeal. The question is whether the court-fee payable is an ad valerom fee under Art.1 of Schedule I of the Court Fees Act, 1870 as amended in Madras, or a fixed fee under Art.17-B of Schedule II. 2. The first column of Art.1 of Schedule I runs as follows: "Plaint or written statement pleading a set off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court" And the second column clearly shows that the article can apply only in cases where the subject-matter in dispute can be valued in money. Article 17-B of Schedule II 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." It will be noticed that the disclaimer, "not otherwise provided for by this Act" appears in both the articles so much so that when it comes to deciding which article applies, the disclaimer in the one cancels out that in the other. For, to show that Art.1 of Schedule I applies you have to show that no other provision of the Act applies, in other words that Art.17-B of Schedule II, which is the only other provision that can conceivably apply, does not apply. But to show that we have to show that some other provision of the Act, in other words Art.1 of Schedule I applies! And vice versa! Therefore we might as well read the two articles as if the clause, "not otherwise provided for in this Act" did not appear in either. But to show that we have to show that some other provision of the Act, in other words Art.1 of Schedule I applies! And vice versa! Therefore we might as well read the two articles as if the clause, "not otherwise provided for in this Act" did not appear in either. So read, there can be no doubt whatsoever of the applicability of Art.1 of Schedule I, for, this is indisputably a memorandum of appeal presented to a civil court where the value of the subject-matter in dispute can be estimated in money. Regarding the applicability of Art.17-B of Schedule II, there is conflict of authority the view taken in Veluchami Pillai v. Sankaralingam Pillai A.I.R.1950 Madras 353 and Kamalam v. Saradambal 1953 (1) M.L.J. 135 following Fyotibati Chaudhurain v. Lakshmeshwar Prasad Chaudhuri I.L.R. 8 Patna 818 and Fyoti Prasad Singha Deo v. Fogendra Ram Ray I.L.R. 56 Calcutta 188 is that it does apply, while the view taken in Kadiyala Peravadhannulu v. Kadiyala Peravadhannulu A.I.R. 1950 Madras 26 and in In re Krishnappa Chettiar 1941 (2) M.L.J. Short Notes 92 is that it does not. Thus, it would appear that while the applicability of Art.1 of Schedule I is certain on authority the applicability of Art.17 B of Schedule II is uncertain. It should therefore follow that Article I of Schedule I must be applied. And if there two possible ways of reading Art.17-B of Schedule II, that must be chosen which does not bring it into conflict with Art.1 of Schedule I. 3. It is said that Art.1 of Schedule I is a general provision while Art.17-B of Schedule II is a special provision and that in cases where the latter applies it excludes the application of the former. I see little substance in this argument, for, it seems to me that both the articles are equally general or equally special. While Art.1 of Schedule I provides for cases where the subject-matter in dispute is capable of being valued in money, Art.17-B of Schedule II provides for cases where it is not capable of being so valued. 4. I see little substance in this argument, for, it seems to me that both the articles are equally general or equally special. While Art.1 of Schedule I provides for cases where the subject-matter in dispute is capable of being valued in money, Art.17-B of Schedule II provides for cases where it is not capable of being so valued. 4. But, construing Art.17-B of Schedule II for myself, unaided by authority, I have little doubt that it does not apply in this case for the simple reason that it is possible to estimate at a money value of the subject-matter in dispute, and, if I may say so with great respect where, Veluchami Pillai v. Sankaralingam Pillai AIR. 1950 Madras 353 and Kamalam v. Saradambal 1953 (1) MLJ.135, err is in the assumption that the word, "suit" appearing in the article means original suit. If the word is so read, neither Art.17-B nor its parent article, Art.17. would make sense. For while there is a plaint in every original suit, there cannot be a memorandum of appeal in such a suit. The memorandum of appeal would be in the appeal from the decree in such a suit. Now, although the word, "suit" is sometimes used in a restricted sense, to mean an original suit as distinguished from an appeal, the word is, in its ordinary sense, wide enough to include also an appeal in a suit. An appeal is after all only a stage in a suit, and, from the very institution of a suit right up to the final decision in the ultimate appeal, what is being heard is the suit. That is why Art.17,17-A and 17-B of Schedule.1 of the Court Fees Act speak of a plaint or memorandum of appeal in a suit obviously they use the word, "suit" in its wider sense as including also what might be called an appeal suit, and is, indeed, so called in numbering appeals in suits as Appeal Suits, A. S. for short. S.3 of the Travancore-Cochin Court Fees Act, 1125 speaks of suits, original and appeal. S.10 of the Civil Procedure Code, it is clear, uses the word "suit" to include also an appeal while S.12(ii) of the Court Fees Act speaks of a suit coming before a court of appeal. S.3 of the Travancore-Cochin Court Fees Act, 1125 speaks of suits, original and appeal. S.10 of the Civil Procedure Code, it is clear, uses the word "suit" to include also an appeal while S.12(ii) of the Court Fees Act speaks of a suit coming before a court of appeal. In my view, the word, "suit" appearing in Art.17-B of Schedule.1 must be read as "original suit or appeal suit". If that be done Art.17-B would read: "Plaint or memorandum of appeal in every original suit or appeal suit where it is not possible to estimate at a money value the subject-matter in dispute." And, if it is remembered that under S.4 and 6 of the Act it is on documents filed in court that court-fee is levied, the article, confining it to the case of an appeal, might well read: "Memorandum of appeal filed in every appeal suit where it is not possible to estimate at a money value the subject-matter in dispute". The word, "suit" has been introduced in the article only for the purpose of showing that the article is applicable only when the memorandum of appeal is in a suit, not when it is in some other proceeding. 5. Another, and, perhaps, a better way of reading Art.17-B strikes me, and that would lead to the same result. The word "suit" there, as we have seen, includes every stage of a suit from its institution till its final disposal in appeal. The words, "where it is not possible to estimate at a money value the subject-matter in dispute, must be read as qualifying the words, "Plaint or memorandum of appeal" rather than, as would at first sight appear from the juxtaposition of the words, the word, "suit". For, it is on the document filed in court, namely, the plaint or memorandum of appeal, that court fee is to be paid and it is this document that sets out, and where it is capable of valuation, values the subject-matter in dispute. It is on the subject-matter in dispute in this document that court fee is levied. This matter might be, and often is, different in the memorandum of appeal from what it was in the plaint, and, even if it was not capable of valuation in the latter, it can be, as in this case capable of valuation in the former. It is on the subject-matter in dispute in this document that court fee is levied. This matter might be, and often is, different in the memorandum of appeal from what it was in the plaint, and, even if it was not capable of valuation in the latter, it can be, as in this case capable of valuation in the former. The clause, "when the amount or value of the subject-matter in dispute" appearing in the second column of the table in Schedule I undoubtedly qualify the words, "Plaint or memorandum of appeal" appearing in the first; and so I think does the corresponding clause of Art.17-B of Schedule II, the intervening words "in every suit" being, as I have indicated, interposed so as to make the article applicable only to memoranda of appeal in suits and not in other proceedings. 6. The scheme of the Act is that a party seeking the intervention of the court should pay ad valorem court-fee on the subject-matter in dispute where the subject-matter is capable of being valued in money and, there is no reason why an appellant seeking to get rid of a liability imposed on him by a decree should not be asked to pay ad valorem court-fee where the liability is capable of being valued in money. That the subject-matter in dispute in the plaint was not capable of being so valued seems to me an entirely irrelevant consideration. 7. I hold that ad valorem court-fee is payable on this memorandum of appeal under Art.1 of Schedule I.