Dukhi Singh v. Harihar Shah

Jwala Prasad, J.:— The facts necessary for the disposal of this appeal have been clearly set forth in the order of the Court, dated the 26th March, 1919, which is the subject of appeal before us and may be briefly stated as follows:—

During the minority of the plaintiff a suit for partition of the family property was instituted on his behalf along with defendants Nos. 9, 10 and 11 and was numbered 3 of 1904. That suit was terminated by means of a compromise said to have been entered into between the parties. Subsequently the compromise decree was challenged on behalf of the plaintiff and his father, defendant No. 9, and some other members of the family, who instituted a title Suit No. 2 of 1906 to sat aside the compromise decree on the ground of fraud and other allegations. The suit was dismissed for insufficiency of Court-fee and on appeal to the High Court the order of dismissal was confirmed. In that suit costs were awarded to defendant No. 1, who in execution of the order for costs attached the share of the plaintiff and defendants Nos. 9, 10 and 11 in the properties in suit the plaintiff having come of age has commenced the present action for a declaration of his joint interest in the property and his right to enjoy it separately and for having it declared that the said decree and sulenama in Suit No. 3 of 1901 and the decree for costs in Suit No. 2 of 1906 are ineffectual, void and inoperative as against the plaintiff.

2. The reliefs claimed in the plaint are as follows:—

“(a) It be declared by the Court that the properties mentioned in the Schs. I and II of the plaint are joint ancestral properties of the plaintiff and defendants and that the plaintiff's share in them is one-eighth and the plaintiff holds possession of the said property in a state of jointness with them and is to have separate mode of enjoyment by separate possession of his share.

(b) That it be declared, if necessary, that the decree in Suits No. 3 of 1904 and No. 2 of 1906 as well as the sulenama upon which the decree in Suit No. 3 of 1901 is based are ineffectual, void and inoperative against the plaintiff.

(c) That costs of the suit with interest till realization and any other relief which the Court thinks the plaintiff is entitled to may also be given to the plaintiff.

3. As regards the valuation, the plaintiff states in para. 22 of the plaint as follows:—

“That the plaintiff's share is the joint family properties mentioned in Schs. I and II of the plaint is one-eighth whereof the value for the purpose of jurisdiction is laid at Rs. 1,915-6-2.”

4. The plaintiff filed an application for issue of an injunction restraining defendant No. 1 from executing his decree for costs and from proceeding in execution and selling the attached property. This application was allowed and the sale of the property in suit has been stayed by the order of the Court dated the 26th March, 1919. Aggrieved by this order defendant No. 1 has now come to this Court. The other defendants are not parties to this appeal, A preliminary objection has been taken on behalf of the plaintiffs-respondents as to the competency of this appeal. The ground urged is that the value of the suit was below Rs. 5,000 and hence an appeal lay to the District Judge, and not to this Court. The learned Vakil on behalf of the Appellant resists this contention on the ground that the value of the suit is not what is stated in para. 22 of the plaint, but is the value of the entire properties mentioned in Schs. I and II of the plaint. Dealing with the Court-fee leviable on the plaint, the Subordinate Judge on the 18th March, 1918, bald that it was not a suit for a mere declaration or partition of the property but was a suit for a declaration with consequential reliefs and was governed by section 7, cl. 4(c) of the Court Fees Act, under which an ad valorem Court-fee was payable. He found that the value of the entire properties in Schs. I and II was Rs. 22,500 and that of the plaintiff's 1/13th share therein was Rs. 1,750. Accordingly he held that the valuation of the suit was Rs. 1,750, and directed the plaintiff to pay Court-fee thereon. The question for determination before us is whether the valuation of the suit should be the value of the entire properties mentioned in Sobs. I and II of the plaint, or that of the there of the plaintiff only in those properties, namely, the 1/13th share thereof. It is settled by authorities that in a suit for partition, pure and simple, where the plaintiff is in possession of his share of the property and simply wants to alter the mode of its enjoyment by claiming to hold his proportionate share in the properties separately from the other joint holders, the Court-fee payable will be Rs. 10 only under Sch. II, Article 17, cl. 6 of the Court Fees Act. It has also been settled that where the plaintiff is out of possession of his share in the joint property, he is required to pay ad valorem Court fee under section 7, cl. 4 of the Court Fees Act inasmuch as it is not a suit for mere partition but for a consequential relief in the shape of recovery of possession of his share in the property. In such a case the plaintiff has to pay Court-fee upon the valuation of his share in the property.

5. There is, however, conflict of opinion as to what should be considered the value of the suit for the purpose of jurisdiction, whether the value of the entire property sought to be partitioned or the value of the share of the plaintiff in the said property. The Bombay, Madras and the Allahabad High Courts have invariably held that in a suit for partition for the purpose of jurisdiction the value of the suit is not that of the entire property but only of the share of the plaintiff in the said property.

6. The Calcutta High Court has, however, taken a contrary view, vide Wajih-ud-din v. Waliullah(1), Motibhai v. Haridas(2) Velu Goundan v. Kumaravelu Goundan(3), Lala Bhagwai Sahay v. Rai Pashupati Nath Bose(4), and Biraj Mohini Dasi v. Chintamani Dasi(5).

7. In the case of Raghu Nath Pershad Singh v. Syed Yahya Hussain(6) in rejecting the application for leave to appeal to His Majesty in Council, this Court held that the value of the suit was that of the share claimed by the plaintiffs, and not of the entire property, and in doing so it approved of the principle decided in the case of John Joseph De Silva v. J.J De Silva(7). Although the point was not directly decided in that case, the decision was certainly based upon the principle adopted by the Bombay, Madras and the Allahabad High Courts. The learned Judges declined to express any opinion on the correctness of the Calcutta cases. The present case is still more distinguishable from the Calcutta cases on account of the consequential relief claimed in it. That relief is set forth in relief No. (b) of the reliefs detailed in the earlier part of this judgment for declaring void and inoperative the decrees in Suits No. 3 of 1904 and No. 2 of 1906, as well as the sulenama upon which the former decree was based. This relief clearly comes under section 7, clause 4(c) of the Court Fees Act and the Court of so payable thereon is ad valorem on the loss to the plaintiff. Vide Ganesh Bhagat v. Sarada Prasad Mukherjee(8), Chinnamal v. Madras a Bowther(9) and Waliulla v. Durga Pershad(10). Relief (a) properly speaking, relates to the declarations sought by the plaintiff of his interest in the property being to the extent of one-eighth share and of his right to separate mode of enjoyment by separate possession of his share. The plaintiffs themselves valued the suit at must below Rs. 5,000 according to their own shares in the properties in Schs. I and II, and that valuation, as stated above, is mentioned in para, 22 of the plaint for the purpose of jurisdiction as well as for payment of Court-fee, and the valuation of the relief made by the plaintiff should be the criterion in such cases for the purpose of determining jurisdiction unless the said valuation is wrong or arbitrary: vide Phul Kumari v. Ghanasyam Misra(11), Ganesh Bhagat v. Sarada Prasad Mukherjee and Bankey Behari v. Ram Bahadur(12).

8. The lower Court had already determined in clear terms by its previous order of the 18th March, 1918, that the valuation of the suit was Rs. 1,750, i.e, 1/13th of the entire value of the properties mentioned in Sobs. I and II. The valuation of the suit determined by the Court was for the purpose of Court-fee payable by the plaintiff as well as for the purpose of jurisdiction. That order has become final between the parties and we must therefore hold that for the purpose of jurisdiction the value of the suit was Rs. 1,750, that is, below Rs. 5,000.

9. The appeal to this Court is therefore incompetent and the memorandum of appeal should be returned to be presented to the proper Court.

10. Adami, J.:— I agree.

11. Memo of appeal returned.