Sir John Edge, C.J and Tyrrell, J.:— The plaintiff, who is a member of a Muhammadan family, brought her suit to have her share of the family property partitioned. The suit was brought in the Munsif's Court. The value of the whole family property exceeded Rs. 1,000. The value of her share as ascertained by the Court below was less than Rs. 1,000. The case went on appeal to the Subordinate Judge, who decreed partition not only of the plaintiff's share but of the shares of the defendants inter se. One of the defendants has brought this appeal from that decree. We are informed that all the defendants in the suit are not parties to this appeal; consequently the decree which we shall pass will not affect the rights of any defendant who is not a party to this appeal. We can only deal with the rights of those who are parties to this appeal. The first objection taken by the appellant was that this suit could not be maintained in the Munsif's Court. At the time when the suit was filed, Act VI of 1871 was in force. By s. 20 of that Act it was enacted that— “The jurisdiction of a Munsif extends to all like suits in which the amount or value of the subject-matter in dispute does not exceed one thousand rupees” Pandit Sundar Lal for the appellant contends that the subject-matter in dispute within the meaning of that section was the whole family property and not merely the share which the plaintiffs claimed to have partitioned off. Act VI of 1871 repeated and took the place of Act XVI of 1868. The thirteenth section of the earlier Act was as follows:—
“Munsifs are empowered to try all original suits cognizable by the Civil Courts of which the subject-matter does not exceed in amount or value rupees one thousand.”
[508] Pandit Sundar Lal relied on four authorities. The first of those is the case of Vydinatha v. Subramanya. The question there turned on the construction of s. 12 of Act III of 1873. The material words of that section were:—
“The jurisdiction of a District Munsif extends to all like suits and proceedings not otherwise exempted from his cognizance, of which the amount or value of the subject-matter does not exceed two thousand five hundred rupees.
That section does not limit the subject-matter to the subject-matter in dispute as was done by s. 20 of Act VI of 1871. The Madras Act in this respect, although subsequent to Act VI of 1871, was, for some reasons into which we need not enquire, worded differently from Act VI of 1871, and followed the wording of Act XVI of 1868; consequently we cannot regard the Madras case as an authority on the construction of Act VI of 1871. The next case to which we were referred was that of Kirty Churn Mitter v. Aunath Nath Deb. The attention of Sir Richard Garth, Chief Justice, in that case apparently was more directed to the question as to what was the fee to be paid under the Court Pees Act. He does not apparently seem to have considered the construction of s. 20 of Act VI of 1871. If the latter portion of his judgment bears the construction put on it, it appears to us to have been obiter.
The third case is that of Shaikh Khoorshed Hossein v. Nubbee Fatima. We may say with regard to that case that, should the question in that case arise, we would not be prepared to follow that decision. But the question here before us did not arise in that case. There is another case to which Pandit Sundar Lal referred in support of his argument that the whole property of the Muhammadan family must have been deemed to have been the subject-matter in dispute under the plaintiff's claim. That is the case of Ramchandra Narayan v. Narayan Mahadev. It is not necessary for us to consider whether, in a suit for partition framed differently to that before us, a decree could be passed partitioning the [509] shares of the defendants inter se which might operate as res judicata in a subsequent suit. In this suit as we understand it, no partition amongst the defendants inter se was prayed for. In our opinion there is clearly a distinction between the subject-matter of the suit and the subject-matter in dispute. Such a distinction is to be seen in s. 596 of the Code of Civil Procedure. We are quite satisfied that the subject-matter in dispute in this suit was the share which the plaintiff asked to have partitioned, and that share, as we have said, did not exceed in value 1,000 rupees. In our opinion it makes no matter that the share in question was at the date of the suit a portion of a family property, which family property exceeded rupees 1,000 in value. We are consequently of opinion that the Munsif had jurisdiction to hear this suit. The next objection taken to the decree was that in the suit the Subordinate Judge had decreed specification and partition of the defendants' shares, which was not asked for in the suit. The parties did not consent to any such partition being made. We know of no authority which in such a case would give a Judge jurisdiction to partition, as amongst the defendants, the residue of the property left after the partitioning off of the plaintiff's share. We must vary the decree below so far as it affects the parties to this appeal, by setting aside that portion of the decree which decreed specification and partition of the shares amongst the defendants. The plaintiff has filed an objection as to the disallowing of her costs by the lower appellate Court. We see no reason to interfere with the discretion that was exercised in the lower appellate Court in that respect. As to the respondent Jaffar Husain, be was needlessly made a respondent to the appeal. The appellant must pay his costs of the appeal. As to costs as between the other parties, the parties respectively will bear their own costs. The decree is modified to the extent mentioned above.
Appeal allowed in part.