P L D 1960 Dacca 789 (PLP)

RAHMAN, J.‑

This Reference to the Full Bench arises out of an appeal from the judgment and decree of the Subordinate Judge, Bogra, whereby a preliminary decree has been passed in a suit for partition. The appeal has been filed on behalf of the defendants in the said suit and there is also a cross‑objection filed by the plaintiff.

2. The suit itself, although filed with a fixed court‑fee of Rs. 20, was valued at Rs. 9,300 for the purposes of jurisdiction and was heard by the learned Subordinate Judge but in this Court a question has been raised as to whether this Court is the proper forum for the appeal in view of the fact that the defendant‑appellant's share in the suit property is below Rs. 5,000.

3. It is pointed out by the office that in the case of Patak Chandra Haldar and others v. Sademan Howladar and others ((1957)9DLR190) a Division Bench of this Court has decided that in a suit for partition "(1) Where the plaintiff is excluded from possession and the plaintiff is required to pay ad valorem court‑fees, section 8 of the Suits Valuation Act applies and the valuation for the purpose of court‑fees also determines the valuation for jurisdic tion ; and (2) Where the plaintiff claims partition whilst in joint possession of the property, the suit will be one falling under Entry V‑A in Article 17 of Schedule II of the Court Fees Act on which only a fixed court‑fee will be payable and a separate valuation will have to be put for the purposes of jurisdiction calculated at the value of the share claimed by the plaintiff.

4. Upon the basis of this decision the office maintain that in this appeal the value of the share claimed by the appellant should determine the forum of the appeal. The practice‑followed by this Court prior to the said decision, however, was that in suits for partition where the plaintiff was in joint possession the value of the entire property sought to be partitioned determined the forum of the suit as well as the appeal. This practice, it appears, was also the practice that had been followed by the Calcutta High Court consistently for a large number of years, and, in accordance with this practice, a large number of First Appeals had been registered in this Court although the value of the appellant's share in the property sought to be partitioned was below Its. 5,000.

5. In these circumstances, the appeal was placed before the Division Bench taking lawazima matters. The Division Bench felt that, since a long established practice had been disturbed by the decision in Patak Chandra Haldar's case and the question of jurisdiction involved was not altogether free from diffi culty, it was desirable, having regard to the general importance of the question involved, that it should be con sidered by a larger Bench. Hence, this reference to the Full Bench for further clarification of the following observations in the said case of Patak Chandra Haldar: "Where, however, the plaintiff claims partition whilst in joint possession of the property, the suit will be one falling under Entry V‑A in Article 17 of Schedule II of the Court Fees Act on which only the fixed court‑fee will be payable and a separate valuation will have to be put for the purposes of jurisdiction calculated at the value of the share claimed by the plaintiff which, according to the view expressed by their Lordships of the Privy Council in 71 I A 142, should be taken to be the subject‑matter in dispute in the suit and that valuation will also determine the forum to which the appeal shall lie under section 21 of the Bengal, Agra and Assam Civil Courts Act (XII of 1887)."

6. The case of Patak Chandra Haldar was a case where the plaintiff being out of possession had valued his suit for partition at Rs. 1,071‑7‑0 and paid ad valorem court‑fee thereon. On appeal to this Court, the Memorandum of Appeal had also been valued at the same amount and ad valorem court‑fee paid but, on the margin of the Memorandum of Appeal, an endorsement was made to the effect that "the appeal is also valued at Rs. 3,000 for jurisdiction", and the appeal was placed before a Division Bench for hearing under Order XLI, rule 1 of the Code of Civil Procedure. The Division Bench then called for a report from the office as to why the Memorandum of Appeal contained two valuations‑one for the purposes of court‑fees and the other for the purposes of jurisdiction. The office reported that according to the Calcutta practice followed in this Court in a suit for partition the valuation of the entire property sought to be partitioned determined the forum of the trial as also of the appeal ; hence it was necessary that the valuation for the purposes of jurisdiction in appeals against partition decrees should also be mentioned on the Memoranda of Appeals and, since in the present case the valuation subsequently endorsed on the Memorandum of Appeal was above Rs. 2,000, the matter was placed before the Division Bench. In support of this practice, the office also referred to the decision in the cases of Biraj Mohini Dasi and others v. Chintamani Dasi (3 C L J 197), Edward Dalgish v. Ramdhari Sahu and others (4 C L J 509) and Rajani Kanta Bag v. Rajabala Dasi (I L R 52 Cal. 128.

7. The Division Bench, however, took the view that the Calcutta practice with regard to suits for partition, where the plain tiff was excluded from possession, could not be regarded as the correct practice for the reason that after the introduction of paragraph VI‑A in section 7 and Entry No. V‑A in Article 17 of Schedule II of the Court Fees Act, 1870, by the Court Fees (Bengal Amendment) Act, 1935, section 8 of the Suits Valua tion Act was applicable to such suits.

8. The Division Bench then went on to hold that even with regard to suits for partition where the plaintiff was in joint possession with his other co‑sharers the Calcutta view had been impliedly overruled by the Judicial Committee in the case of Rai Shevrantibai v. Janardhan Raghunath Warick and others (71 I A 142). Hence, even though this latter category of suits fell under ‑Entry V‑A in Article 17 of Schedule II of the Court Fees Act, on which only a fixed court‑fee was payable and a separate valuation had to be put for the purposes of jurisdiction, the valuation for the purposes of jurisdiction should be calculated at the value of the share claimed by the plaintiff which, "accord ing to the view expressed by their Lordships of the Privy Council in 71 I A 142, should be taken to be the subject‑matter in dispute ip the suit."

9. The present appeal is an appeal from a decree for partition where the plaintiff claims to be in joint possession with his other co‑sharers. The value of the entire property sought to be partitioned is given at Rs. 9,500 but the value of the share claimed by the plaintiff is about Rs. 3,

300. It is, therefore, suggested by office that the proper forum of this appeal is the Court of toe District Judge and not the High Court.

10. The learned Advocates for both the appellants and the respondents as well as the learned Advocate‑General, who has appeared at the request of the Court, have all contended that the observations of the Division Bench in Patak Chandra Haldar's case with regard to suits for partition where the plaintiff is in joint possession is obiter and, in any event, not the correct view.

11. It is urged that the decision of the Privy Council in 71 I A 142 has been misapplied, for, in the case before their Lordships, the question for consideration was as to whether the High Court had rightly refused to grant the certificate under section 110 of the Code of Civil Procedure by taking the view that "the value of the subject‑matter in dispute on appeal" was the value of the interest claimed by the appellant.

12. It is further urged that the decision in Patak Chandra Haldar's case in respect of suits for partition simpliciter, where the plaintiff is in joint possession, would not have been arrived at if the true nature and scope of a partition suit had been kept in mind. A partition suit, it is said, is a suit in which really a joint declaration of the rights of all persons interested in the property is sought. In such a suit every defendant has a right to ask to have his own share divided off and given to him and a defendant claiming a share on partition is qua that claim in the position of a plaintiff. Again a co‑parcener claiming partition claims his respective share in every inch of the property sought to be partitioned and, as such, the subject‑matter of the suit is the whole estate sought to be partitioned and not merely a particular share which one of the parties may claim, for, other wise, in a suit for the partition of an estate worth many lacs of rupees, in which the share of the plaintiff might be worth only a few hundred rupees, the rights of all the parties would come to be finally determined in a Court of the lowest pecuniary jurisdic tion and there would be no right of First Appeal to this Court.

13. In a Partition Suit, therefore, the Court has to deal with every bit of the whole property and not merely a portion of it. Hence the value of the suit, as contemplated by section 21 of the Bengal, Agra and Assam Civil Courts Act (XII of 1887), ‑is the value of the entire property. The entire property is also the subject‑matter in dispute in the suit or the appeal, as the case may be, and hence the value for the purposes of jurisdic tion in such partition suits simpliciter should be the value of the entire property sought to be partitioned.

14. In support of these contentions, reliance is placed on the decisions referred to earlier in this judgment as also on the decisions in the cases of Loke Nath Saha and others v. Radha Gobinda Saha and others (A I R 1926 Cal. 184), Jajneswar Pal and others v. Jagadish Chandra Pal and others ((1954) 6 D L R 379) and Rajendra Kumar Bose v. Brojendra Kumar Bose (37 C L J 191).

15. It is further urged that the legislative changes now intro duced into the Court Fees Act by amendments since made by the Court Fees (Bengal Amendment) Act, 1935, have given statutory recognition to the view of the Calcutta High Court in its entirety. The Legislature must be deemed to have had knowledge of the decisions of the Calcutta High Court wherein the view had been taken that in a partition suit the value of the entire property sought to be partitioned was the subject‑matter of the suit, and hence if the Legislature wished to make a different provision it should have expressly done so, particularly, since it had expressly provided in Entry No. V‑A of Schedule II, Article 17 of the Court Fees Act that such partition suits where the plaintiff is in joint possession of the property should be filed with a fixed court‑fee.

16. In this connection, our attention, is also drawn to the decision in the case of Ranjit Sahi and others v. Moulvi Qasim and others (A I R 1923 Pat. 342), where, whilst considering the question as to which was the proper forum of appeal from a partition decree, it was observed that: "there is a distinction between suits for partition pure and simple where the plaintiff is in joint possession of his share and there is no dispute as to his title or share, and suits where the plaintiff seeks for an adjudication of his title or extent of share and for partition after such adjudication. In the latter case, it is the value of the plaintiff's share which will determine the jurisdiction of the Court and not the value of the entire property. In the present case, there is no question as regards partition ; therefore, the value of the whole of the properties sought to be partitioned must be the value for the purposes of jurisdiction. This view is supported by the fact that, in a suit for partition, the Court does often, on the application of the defendants, effect a partition of the shares of the different defendants also amongst themselves, and, therefore, in such a case the value, for the purposes of jurisdiction, cannot be the value of the plaintiff's‑ share because the Court deals with the entire estate and effects partition not only of the plaintiff's share but of the defendant's share also. More over, a decree in a partition suit is engrossed on a stamped paper required by Article 45 of the Indian Stamp Act, the stamp duty being payable not only on the value of the plaintiff's share but on the value of all the shares separated and this clearly shows that the value of the plaintiff's share alone cannot determine the jurisdiction of the Court."

17. The Patna High Court now appears to have gone even further in the case of Kandhai 'Mahlon and another v. Prasad Mahlon and another (A I R 1952 Pat. 290), where the suit was instituted originally as a suit for partition simpliciter and was valued for the purpose of jurisdiction at Rs. 7,929‑12 but, during the trial, the question of possession of the plaintiff having been raised, the plaintiff paid ad valorem court‑fee on the value of his share. On appeal, the District Judge returned the Memorandum of Appeal to be pre sented before the High Court on the ground that the valuation of Its. 7,929‑12 given in the plaint for the purpose of jurisdiction should be the basis for determining the forum of the appeal. The Patna High Court refused to interfere with this order and held that the District Judge had rightly returned the Memorandum of Appeal. The decision of the Privy Council reported in 71 I A 142, which was relied upon by the appellant, was distinguished as being a decision concerning only the value of the subject matter in dispute on appeal under section 110 of the Code of Civil Procedure.

18. There is no doubt that the Calcutta High Court and the Patna High Court have consistently followed the view now canvassed before us by the learned Advocates. Hence, the learned Advocates have also urged that in any event the settled practice of the Calcutta High Court, which has been followed in this Court also from its inception, should not be disturbed on the principle of stare decisis.

19. The judgment in the‑case of Patak Chandra Haldar was delivered by me and I am also a party to the Reference to the Full Bench. I am myself in agreement with the learned Advocates that a settled practice of the Court should not be lightly disturbed and have, therefore, given this matter my most anxious consideration.

20. It is true that the observations' relating to a suit for partition, where the ,plaintiff claims to be in joint possession of the property sought to be partitioned, in the said case of Patak Chandra Haldar were in the nature of an obiter, for, they were not necessary for the decision of the said case where the plaintiff was on his own showing out of possession. It is also clear from the judgment itself that I was not oblivious of the fact that the opinion of the Judicial Committee in the case 71 I A 142 was not a direct authority on the point but it was felt that the observations of their Lordships quoted in the said judgment related to a question which was not limited to the determination of merely the value of the subject‑matter in dispute in the appeal. Their Lordships by the said observations were negativ ing a further contention raised before them, namely, as to "whether the decree refusing partition on the ground that the claim is barred by the law of limitation involves directly or indirectly some claim or question to or respecting the, joint family property as a whole". I then felt that the fact that their Lordships had negatived the contention that a decree refusing partition involves directly or indirectly some claim or question to or in respect to joint family property as a whole also nega tives the contention that the claim to a share by the plaintiff in joint family properties necessarily involved the entire joint family property or made it a question relating to the entire joint family property.

21. Be that as it may, in the‑ light of the fuller arguments now advanced before us, I have endeavoured to re‑consider the questions decided in the case of Patak Chandra Haldar. So far as the decision relates to a partition suit where the plaintiffs is excluded from possession, I am, if anything, now more confirmed in the view that I then took. The omission on the part of the Legis lature, after the incorporation of paragraph VI‑A in section 7 of the Court Fees Act, to amend section 8 of the Suits 'valuation Act, 1887, by including therein paragraph VI‑A of section 7 of the Court Fees Act as one of the kind of suits, excluded from the operation of the said section, leaves, to my mind no scope for the argument that, notwithstanding the provisions of the said section 8 of the Suits Valuation Act, the value for the pur poses of jurisdiction even in partition suits of this nature can be differently computed. Therefore, it follows that, since under the said paragraph VI‑A, court‑fees must be paid ad valorem according to the market‑value of the share in respect of which the suit is instituted, the value for the purposes of jurisdiction must also be determined by the same value which has been computed for court‑fees.

22. I may mention, in this connection, that in at least one case, namely, that of Edward Dalgish and others v. Ramdhari Sahu and others the Calcutta High Court curiously enough appears to have held that, even if such a suit bas been erroneously valued in the Court of the first instance on the valuation of the share of the plaintiff, the Appellate Court should not interfere unless such valuation has materially prejudiced the disposal of such suit.

23. The Patna High Court also in the case of Dukhi Singh v. Harihar Shah and another (A I R 1921 Pat. 78) held that if in such a case the plaintiff is out of possession and seeks adjudication of his title and subsequent partition, then it is the value of the plaintiff's share that will be the determining factor in fixing the valuation of the suit both for purposes of court‑fees as well as for juris diction.

24. Even in the Calcutta High Court, Rankin, C. J., observed in the case of In re Nanda Lal Mukherjee (A I R 1932 Cal. 227), that if the plaintiff is out of possession of his share on his own showing, then in that case "he would have to pay court‑fees on the market‑value of the share." If that be so, then that value will also determine the forum of the trial and of the appeal, for, even according to the view of the Calcutta High Court, the right construction of section 8 of the Suits Valuation Act is that the valuation for the purposes of jurisdiction should, in the case mentioned there, follow and be the same as the valuation for court‑fees: vide Sailendra Nath Mitra v. Ram Chandra Pal and others (25 C W N 768) and In the matter of Kalipada Mukherjee (A I R 1930 Cal. 686). Thus, on my part, I see no reason to change my opinion that in a suit for partition where the plaintiff is excluded from possession the market‑value of his share is the determining factor both for court‑fees as well as for jurisdiction.

25. Now, so far as suits for partition simpliciter are concern ed, i.e., where the plaintiff claims to be in joint possession of the property sought to be partitioned with his co‑sharers and seeks a separation of his own share only, it now appears that, apart from the Calcutta and the Patna High Courts, most of the other High Courts in the Indian subcontinent took the view that has been taken in Patak Chandra Haldar's case : vide Wajih‑ud‑Din v. Waliullah and Kudratullah and otxers (I L R 24 All. 381), Motibhai v. Haridas and others (I L R 22 Bomy315), Harbhan Dat and others v. Ladli Saran and another (A I R 1933 Oudh 547), Kolluri Venkataratnama v. Maradugula Narasimba Rao and others (A I R 1945 Mad. 56), Chellammal and others v. K. T. A. Abdul Rahman Rowther and others (A I R 1953 Mad. 856), Shiv Singh v. Jai Singha and others (A I R 1954 Hyd. 220.) and Jogesh Chandra Das v. Amulya Kumar Majumdar and others (A I R 1957 Tri. 7).

26. In the last mentioned case of the Tripura High Court also, the decision of the Privy Council in 71 I A 142 was relied upon and indeed, in the case of Murkothkandiyil Muyyanikandi Kalandar and others v. Thattantativa Vatakkjayil Muyyanikandi and Kunhipakki (A I R 1947 Mad. 273), the Madras High Court considered the question closed by the observations of their Lordships of Judicial Committee in 71 I A 142, which were quoted in the Patak Chandra Haldar's case.

27. The origin of the Calcutta view appears to me to be traceable to certain observations of Garth, C. J., in the case of Kirty Churn Mitter v. Annath Nath Deb (I L R 8 Cal, 757), where the learned Chief Justice purported to hold in a suit for partition that "it was quite right, of course, for the purpose of jurisdiction, to be guided by the value of the property in suit." The next case in which this observation fell to be considered was the case of Boidya Nath Adya and others v. Makhan Lal Adya (I L R 17 Cal. 680). The suit in this case was valued at Rs. 4,200 but, since it was not disputed that the value of the plaintiff's share was not less than Rs. 20,000, it was held that the appeal lay to the High Court. This case was relied upon in the case of Biraj Mohini Dasi v. Chintamani Dasi to support the contention that in I L R 17 Cal. 160 "the property in suit had been interpreted to mean "the plaintiff's share" but Banerjee, J., distinguished it by saying that, since in that case the plaintiff's share itself was above Rs. 5,000, it was not necessary to decide that the plaintiff's share should determine the jurisdiction of the Court. From this time, the view hardened and was recognised as firmly established in the Calcutta High Court in the case of Rajani Kanta Bag v. Rajabala Dasi.

28. With great respect, however, may I venture to point out that the words "property in suit" employed by Garth, C. J., are also capable of bearing another meaning if it is kept in mind that at this stage the question has to be decided purely on the basis of the averments in the plaint without taking into account the possibility of the defendants also asking for a partition inter se. Can they not reasonably be said to mean the property which the plaintiff claims in the suit i.e., his own share in the corpus, for, he is only interested in that and not in what the defendants may or may not seek to do afterwards ?

29. I find myself unable, therefore, to accept the contention advanced by the learned Advocates that the whole estate in such suit forms the subject‑matter of the suit. In my view the whole estate is the corpus out of which the claim arises but the claim itself, i.e., the claim to the allotment in severalty of his individual share is the subject‑matter of the suit. This view does not appear to me to be either irreconcilable or incompatible even with the principle that a suit for partition simpliciter is a suit where only a change in the mode of enjoyment is asked for, or, in other words, a partition signifies the surrender of a joint right in exchange for a similar right from the co‑sharers.

30. The next question as to the exact nature, characteristic and scope of a partition suit have now fortunately been investi gated by Full Benches of several High Courts in this sub continent. These Full Bench decisions are in the case of C. R. Ramaswami Ayyangar (Minor) v. C. S. Rangachariar and others (A I 81940 Mad. 113 (F B)), Asa Ram and others v. Jaganath and others (A J R 1934 Lah. 563 (F B)); Diwan Chand v. Dhani Ram and others (A I R 1941 Lah. 123) and Shankar Naruti Girme v. Bhagwant Gunaji and others (A I R 1947 Bom. 259).

31. In all these cases, it has been uniformly held that in determining this question the allegations made by the plaintiff alone must be considered and that the pleas raised by the defendant do not affect the question ; furthermore, that in suits of this nature the plaintiff does not seek to enforce a right to a share in the property on the ground that it is joint property but merely seeks to obtain separate possession of a share therein and b thus merely asks for a change in the mode of enjoyment thereof. In the absence of any provision similar to entry No. V‑A of Article 17 of Schedule II, as prevailing in this Province, the suits were also held in those cases to fall in the category of suits where the relief claimed was incapable of estimation in terms of money and only a fixed court‑fee was payable under the residuary clause of Article 17 of Schedule II to the Court Fees Act.

32. In such cases the rule now generally accepted is that the plaintiff is entitled to put his own valuation for purposes of juris diction and I too would have been inclined to follow this rule if entry No. V‑A had not been incorporated in Article 17 of Schedule 11 by the Bengal Amendment of 1935.

33. The first portion of this entry is identical in terms with the first portion of clause (VI‑A) of section 7 and reads as follows:

In suits for partition ..or joint property.", This is followed by the words "if the plaintiff is in possession ..or co‑owner" in entry V‑A but in section 7 (VI‑A) the subsequent words used are "if the suit is instituted. Thus it will be observed that in both clauses the category of the suit specified is described in identical terms ; hence, the Legisla ture must, according to the accepted rules of interpretation of statutes, be deemed to have intended that those words should signify the same thing.

34. In these circumstances, I am unable to say that notwith standing the fact that the Legislature itself bas in one part of the same statute [section 7 (V4‑A)] indicated that the relief in such a suit can be estimated in terms of money, a similar suit in another part of the same statute (Entry V‑A, Article 17, Schedule II) is incapable of such estimation or should be treated differently. I regret, therefore, that I am unable to change my opinion even with regard to partition suits simpliciter where the plaintiff claims to be in joint possession and seeks only to have his own share separated.

35. Such a course will not lead to any anomaly even if the share allotted by the decree in such a suit to a defendant is much in excess of the pecuniary jurisdiction of the Court or for the reason that the decree will have to be stamped under the Stamp Act with duty in excess of that amount. The quantum of the stamp duty leviable on a document cannot, in my opinion, affect the jurisdiction of a Court or govern questions relating to the interpretation of the Court Fees Act or the Suits Valuation Act.

36. Again, no difficulty can possibly arise if a defendant in such a case wishes to prefer an appeal, for, the court‑fees payable in such an appeal will be the fixed court‑fees prescribed and not ad valorem court‑fees on the value of the subject‑matter in appeal: Vide Diwan Chand v. Dhani Ram and others and Mondhar Shamrao and others v. Monorama Bai (A I R 1952 Nag. 350).

37. This brings me to the consideration of one other aspect of the matter, namely, as to how is the forum to be determined in the event of the suit being so framed as to seek allotment in severalty not only of the plaintiff's share but also of each of the other co‑sharers as well. If the suit be so framed by the plaintiff himself, then, I think, it will be difficult to contend that the entire property sought to be partitioned has not been made the subject‑matter of the suit. In this event, it must also be conceded that the value of the entire property should determine the value for the purposes of jurisdiction.

38. So far as the forum of appeal is concerned, that normally should depend on the value of the original suit in the case of suits tried by Subordinate Judges but in cases tried by Munsifs, the forum will be as provided by subsection (2) of section 21 of the Bengal; Agra and Assam Civil Courts Act (now the East Bengal Civil Courts Act, 1887).

39. For these reasons, I would like to qualify my previous opinion only to this extent : , (a) That in suits for partition where the plaintiff claims to be in joint possession, I would adhere to my previous view that if the suit as framed discloses that the object of the suit is merely to separate the share of the plaintiff from that of the defendant, the value of the share would determine the forum of the suit. (b) On the other hand, if the object of the suit is to partition the entire estate, the value' of the entire estate will determine the forum of the suit.

40. I would further like to observe that so far as the pending appeals in this Court and in the Subordinate Courts are con cerned, no difficulty can arise, for, they can be dealt with in accordance with the provisions of section I1 of the Suits Valuation Act. ISPAHANI, C. J.‑I agree. AKBAR, J.‑I agree. ASIR, J.‑I agree. SATTAR, J.‑I agree. K. B. A. References answered.