Maclean, C.J:— This is an application for leave to appeal to His Majesty in Council. The Sub-ordinate Judge gave a decree for partition, but this Court reversed that decree and dismissed the suit. The Plaintiff now desires to appeal.
The judgment against which it is sought to appeal being one of reversal, the only question is whether the value of the subject-matter in dispute amounts to Rs. 10,000. The Respondents say it does not. This is dependent upon whether or not, for the purposes of determining the value, the value of the whole estate sought to be partitioned, or the value only of the Plaintiff's share is the true criterion.
We think that for the purposes of valuation within sec. 596 of the Code of Civil Procedure the value of the subject-matter of the suit is the value the whole of the estate which it is sought to partition, and not merely of the particular share which one of the parties may claim.
A similar view has been expressed in the unreported case of Biraj Mohini Dassi v. Chintamoni Dasi(1) (Rule Nisi, No. 2228 of 1898) and is supported by a case by the Judicial Committee of the Privy Council many years ago, Mussummat Amena Khatun v. Radha Benode Misser(2) and by the case of Onooroop Chunder Muherjee v. Pertab Chunder Pal(3), decided on the 11th June 1886. Another Bench of this Court in the case of Baidya Nath Adya v. Makhan Lall Adya(4) took a similar view. It is true that these cases were not in connection with sec. 596 of the present Code of Civil Procedure, but their principle appears to be applicable.
It is noticeable that in the section the value of the subject-matter of the “suit” in the Court of first instance must be Rs. 10,000 whilst the value of the matter “in dispute” on appeal to His Majesty in Council must be the same sum: apparently a distinction is drawn and it might, perhaps, be said that here the value of the matter in dispute is only the value of the share of the Plaintiff, which is about Rs. 4,000. But that is not so, for the share of the Plaintiff cannot be ascertained without determining the value of all the other shares in the estate with a view to a proper partition. Any way it would be difficult to say that the decree does not “involve directly or indirectly some claim or question to or respecting property of like amount or value” within the meaning of the third paragraph of the section.
A certificate will therefore be granted.
N.G
Certificate granted.