P L D 1961 Supreme Court 349 (PLP)

CORNELIUS, C. J.‑I have given to the question raised in this appeal my best consideration and my view is that the proper order which should be made in this case is one allowing the appeal and directing that the Memorandum of Appeal which Ajiruddin Mondal and Khairat Ali Mondal had filed before the High Court should be recalled and proceeded with in that Court. I regret greatly that in coming to this conclusion I find myself in disagreement with my learned brethren. The occasion is one however which I consider it appropriate to use for the purpose of examining a situation which has been apparently in an unsatisfactory state for a considerable number of years. The relevant facts to be stated for the purpose of my judgment lie within a small compass. The appellants before us were plaintiffs in the suit, claiming as successors‑in‑interest to certain defendants from whom they had purchased a share in a joint family property. Stating that they were owners and in possession of the share of their vendors, they claimed to be put into separate possession of a defined share in the property. The suit was thus by co‑sharers in a joint property claiming to be joint possessors of such property and seeking to have their share demarcated and to be placed in separate possession. The suit fell clearly under item (v‑a) in Article 17 of the Second Schedule to the Court Fees Act, and was taxable with a fixed court‑fee of Rs.

20. The item in Article 17 reads as follows and it will be convenient to reproduce along with it item (vi) in the same Article :‑

"(v‑a) for partition and separate possession | of a share of joint family property or of joint | I property, or to enforce a right to a share in | Twenty rupees I any property on the ground that it is joint | family property, or joint property if the plaintiff | is in possession of the property of which | he claims to be a coparcener or co‑owner. |

(vi) every other suit where it is not possible | to estimate at a money‑value the subject | Twenty rupees matter in dispute, and which is not otherwise | provided by this Act." |

A fee of Rs. 20 by way of court‑fee was paid, but as to juris diction, it was placed in the plaint at Rs. 5,350, being the market value of the entire joint estate, out of which the plaintiffs claimed their separate share. The question which has arisen in this case is whether for the purpose of jurisdiction, the suit was correctly valued at the market‑value of the entire estate, and whether the value should not be confined to the interest claimed by the plaintiffs in the estate. The point appears to be of importance only for determining the forum of the trial and the consequent appeal. Under the law in force, if the suit had been correctly valued at a sum in excess of Rs. 5,000 for the purposes of jurisdiction, the appeal Jay in the High Court where the Memorandum of Appeal war, actually presented. If, on the other hand, the value be placed at less than Rs. 5,000, the appeal would fall to be heard by a District Judge. The finding of the High Court is that the correct value for the purpose of juris diction was below Rs. 5,000, and accordingly the Division Bench returned the Memorandum to the appellants for presentation in the Court of the District Judge. My first .reason for thinking that this appeal should be allowed is that as the point of valuation for purposes of juris diction was not taken in the Court of first instance, under section 11 of the Suits Valuation Act, no objection on the ground of over‑valuation or under‑valuation should have been entertained by the appellate Court, i.e. the High Court, even if that Court were of the opinion that the valuation was wrong, unless the Court held the opinion that "`the over‑valuation or under‑valuation thereof has prejudicially affected the disposal of the suit (or appeal, on its merits". On the facts, as they appear, no such prejudice can be found. I observe that the learned Judges of the Division Bench which dealt with the application of the appellants for a certificate to enable them to appeal to this Court, expressly referred to this section, and suggested that if the appellants were to move a petition for review of the judgment directing return of the Memorandum, they could be confident that the matter would be dealt with under section 11 aforesaid. The suggestion was not accepted, and no review was attempted, nor was section 11 mentioned in the petition for special leave to appeal, or in the concise statement of the appellants, in this Court. I consider however that sitting in finial appeal, and having power to do full justice in the case, it is open to us to make a direction under section 11, even though the point was not referred to in his arguments before us by Mr. M. H. Khundkar. The Courts have no interest in multiplying proceeding, and if the dispute between the parties can be brought to finality more swiftly by the appeal being dealt with in the High Court, assuming what is obvious, that this can be done without prejudice to its disposal on the merits, that would be of advantage to all concerned. Mr. Khundkar's principal objective in bringing this appeal for a final decision by this Court is to obtain an examination of the correctness of a recent decision on the point by the Dacca High Court, namely, the case published as Khayertullak Mondal v. Kamala Kanta Saha (P L D 1960 Dacca 565). It was held in that case that the correct valuation of a suit such as the present one, for purposes of jurisdiction is not the value of the whole estate, as has been believed and followed in this region for over half a century, but is the value of the share which the plaintiff seeks to secure, in separate possession. After a careful examination of the relevant provisions of the Court Fees Act and the Suits Valuation Act, I have formed the opinion that the question of valuation for jurisdiction in such a suit cannot be settled by mere judicial decision on a priori grounds, but must be based either upon interpretation or interpretative application of the provisions of the Suits Valuation Act, or if this be not possible, then by the method of subordinate legislation under section 9 of that Act. That section empowers the High Court, with the previous sanction of the Provincial Government, to make direction fixing the valuation for purposes of jurisdiction in suits not falling within paragraphs (v) and (vi) and clause (d) of paragraph (x) of section 7 of Court Fees Act, and which possess the quality that in the opinion of the High Court, their subject‑matter does not admit of being satisfactorily valued. It appears that no directions have been issued under this section by the Dacca High Court or by its predecessor in this region, namely, the Calcutta High Court. That is not the case with all the High Courts. For instance, the Lahore High Court has issued an elaborate set of rules on the subject, which is supported by a lengthy schedule. There are specific pr, visions in this schedule for cases falling under section 7 (iv) (b), Court Fees Act relating to suits to enforce the right to share in any property on the ground that it is joint family property. For the purposes of the Suits Valuation Act, it is prescribed by the Lahore High Court that where the subject‑matter is land, the valuation shall be fixed under section 4 of the Act read with rules made by the Provincial Government under section 3, and this will be in relation to the reliefs sought as stated in the plaint. The Punjab Rules under section '3 and the Lahore High Court Rules under section 9 of the Suits Valuation Act will be found printed as Appendix V to the valuable commentary on the Court Fees Act and the Suit Valuation Act by Hasu, published by the Eastern Law House Limited, Calcutta. With reference to suits of the nature here in question, it has been settled for over 50 years by a chain of decisions given by the Calcutta High Court, that the correct valuation is the value of the whole estate in which the share is claimed. Suits of this nature fall within the general description stated in section 7 (iv) (b), Court Fees Act, viz., suits "to enforce the right to share in any property on the ground that it is joint family property. The amount of court‑fee payable on the suit was ad valorem, in proportion "to the amount at which the relief sought is valued in the plaint or memorandum of appeal". This sub‑clause was omitted from section 7, Court Fees Act by a Bengal amendment as far back as 1935. It is important to note this, as it is a point of appreciable weight to be borne in mind in considering this case that there is a regional aspect to this law. That is apparent from the power given to the Provincial Government by section 3 of the Suits 'valuation Act to make rules for determining the valuation of suits under certain clauses in section 7 of the Court Fees Act, which values are to apply also, under section 4 of the Suits Valuation Act, for the valuation of properties in suits in cases falling under section 7 (iv), Court Fees Act, as well. It appears even more prominently from section 9, Suits Valuation Act which has already been mentioned. These provisions have the effect of impressing upon the mind the necessity of regarding the law and its application in a regional manner, and therefore, of obliging the Court to give due weight to such a consideration as that, in a particular 'region over a long period of years, the law has been applied for the resolution of disputes affecting property in a particular way. A long settled practice of a High Court in a matter of procedure not governed by rules has often to be allowed a binding effect, since the rights of litigants may be materially affected hereby. The case is much more clear where the question is one of jurisdiction of the Courts which are established in a graded series, to which the litigant classes are entitled to have recourse, according to their respective jurisdictions as settled by law, in which expression, decisions of long‑standing by the superior Court of the region must be allowed. a place. It cannot be denied that the right to approach a Court of superior jurisdiction rather than one of inferior jurisdiction, is a valuable right, and if upon a long settled course of decision by the High Court of particular region, litigants within that region have been allowed the right upon a certain view as to valuation, to approach a superior Court of appeal, whereas upon a different view, they 'might have been required to go to an inferior Court, I am inclined to the view that the right reserved by the settled course of decision within that region should not lightly be disturbed. It is a case which in my judgment can be brought within the principle of stare decisis in the general public interest, and for the enforcement of due discipline in the operation of the Courts. If there to be disturbance, I am clearly of the opinion that it should be effected, in a case like the present, by the method of subordinate legislation under section 9, Suits Valuation Act. Now, it had been held by the Calcutta High Court that on a correct interpretation of the Court Fees Act, no suit affecting land could be brought within section 7 (iv) (b) of the Court Fees Act, and the reason given was as follows, namely, that where the plaintiff is out of possession, he has to sue for recovery of possession by partition and must pay ad valorem fees as for a suit for possession, while if he is in joint possession, then the suit is one filling under item (vi) in Article 17 of the Second Schedule to the Court Fees Act, i.e. a suit, "where it is not possible to estimate at a money‑value the subject‑matter in dispute" for which a fixed fee is provided. In other words, it was held to be not possible to estimate in terms of money the exact advantage which the plaintiff would enjoy from having his joint possession of the entire estate converted into separate possession of his defined share in the estate. That being the view, it was logical to conclude that the plaintiff was unable to set any value upon the relief which he sought in such a case, and no ad valorem court‑fee could therefore be charged, and therefore, a fixed court‑fee was provided in Schedule It. It is mostly with regard to suits of this nature, where the court‑fee is fixed, and therefore the machinery of section 8, Suits Valuation Act, making the valuation for purposes of jurisdiction equal to that for purposes of court-fee is not available that require action under section 9 of that Act to enable fixation of the jurisdictional valuation. It appears that in implementation of this view the Court Fees Act was amended for Bengal. Firstly, sub‑clause (b) was omitted from section 7 (iv) of the Court Fees Act. Secondly, a new clause (vi‑A) was added in the same section, which provided that where the plaintiff having been excluded from possession of the joint family property, files a suit for partition and separate possession or otherwise to in-force a right to a share, he shall pay court‑fees "according to the market‑value of the share in respect of which the suit is instituted". In such a case, by the operation of section 8, Suit Valuation Act, the valuation for purposes of jurisdiction would also be the market‑value of the plaintiff's share in respect of which he was suing. At the same time, as these two amendments were made, a third amendment was made for Bengal in Article 17, by addition of an item (v‑a) which provided a fixed fee now standing at Rs. 20 as the court-fee payable on suits by a plaintiff in possession who seeks partition and separate possession of a share of joint property or to enforce a right to a share in such property. Coming as this item does immediately before item (vi) which relates to every other suit where it is not possible to estimate the money value of the subject‑matter in dispute" the implication seems clear, viz. that in the view of Legislature, a suit by a plaintiff in joint possession, for partition, and for separate possession of his share fell with the category of suit in respect of which the relief sought could not be estimated at a money value. As we have seen, the method of requiring the plaintiff to value the relief which he, seeks was rendered unavailable in a suit of this kind by the excision of clause (b) from section 7 (iv) for the Bengal Province. The question of what value was to be placed upon the suit for purposes of jurisdiction was thus left at large. It was settled by the Calcutta High Court over a series of years in the following way, namely, that in such suits the valuation for the purposes of jurisdiction was the value of the entire estate to be partitioned. Arguments have been advanced in support of this view, with which I find myself in sympathy, although I entirely disagree that a judicial decision was the appropriate method by which the question was to be resolved. To my mind there can be no doubt that when one of a number of co‑sharers, whether he be in possession or out of possession, seeks to obtain severance of his share, so that he can enjoy it separately and without interference from any of the other co‑sharers, he is attempting something which is calculated to disturb the settled occupation and enjoyment by each of the other co‑sharers of the whole estate. So long as that estate remains joint, he and each of the other co‑sharers has a right in respect of every particle of the estate, to have and to enjoy such particle and it must be supposed that prior to the suit, those rights have been reconciled with each other in an orderly fashion, and have continued to be thus enjoyed over a period of years. Disturbance in the enjoyment of these rights is an interference which affects every particle of the estate in this sense that no co‑sharer is secure in his possession or enjoyment of any such particle until the suit is finally decided, and the plaintiff's share has been partitioned off. Such distur bance will be of an extreme nature where the plaintiff was previously out of possession. In that case every particle of the land could be liable to be taken forcibly out of the possession and enjoyment of the co‑sharers 'in possession, and this makes it plain that the jurisdiction of the Court pervades the entire estate and is not confined to the fraction of it which the plaintiff may eventually be found entitled. These and other aspects of the matter have been fully dealt with in a long series of judgments delivered not only in the Calcutta High Court, but also in the Patna High Court and the Madras High Court. It is true that in a number of other High Courts; a contrary view has been taken, namely, that the valuation for the purposes of jurisdiction in suits of this kind is limited by the value of the share which the plaintiff is seeking, but without accepting that these High Courts possessed, any more than did the Calcutta Patna and Madras High Courts, the right in law to 'fix the valuation irrespective of interpretation of provisions made by or under the Suits Valuation Act, the reason may fairly be advanced for not allowing the view of the Courts other than the Calcutta High Court to carry the same weight as the view of that High Court that those Courts were laying down the law for other regions. The law of suits valuation was expressly framed by the Central Legislature of the sub‑continent so as to give definitive weight to control by regional authorities, both Executive and Judicial. But even excepting the argument by which the view of the Calcutta High Court is supported in regard to the true valuation of suits of the nature here in question. I am of the opinion that in coming to that conclusion on the judicial side, and leaving the matter at that, there has been defeat of the legislative provision by which the resolution of this question was to be effected in a different mode, namely, under section 9 of the Suits Valuation Act. The decision, in effect, has the quality of legislation in a field reserved by the relevant statute for subor dinate legislation. . For the mode of section 9, Suits Valuation Act, it was necessary that there should first be a direction by the High Court. Speaking generally, one may say that the settled view of the High Court expressed in a course of decisions lasting over fifty years would have at least as much effect as a direction, although, in form it might not be the same thing. But for the purposes of section 9 a mere direction by the High Court was not sufficient. It was necessary also that the direction should be supported by the sanction of the Provincial Government. The necessary provision was never made in this mode. Yet, if regard be had to the purpose of section 9, it might be thought that the Calcutta High Court had fulfilled it in a different mode, for the true 'purpose could only be to save the litigant public from falling into doubts and difficulties such as the difficulty of being pushed from one Court to another, by settling it once for all what the valuation should be for the particular type of suit. Through the firm decision of the Calcutta High Court that in suits for partition, the Courts having jurisdiction would be those Courts which had jurisdiction in respect of the entire estate in terms of money‑value, litigants had been enabled over a long series of years to determine for themselves in which Court their suits and appeals of the relevant kinds properly lay. The effect which has been produced in relation to the situation by the judgments of the Dacca High Court delivered in the case of Patak Chandra Haldar (9 D L R 190) and the more recent case of Khayertullah Mondal and others v. Kamala Kanta Saha and other' is to diminish the valuation and bring it down to the value of the share which the, plaintiff claims. These decisions have been given within the last four years, and do not possess the sanction of long standing, and moreover the present is the first occasion when the matter has come up before the Supreme Court for examination The objection that anything in the way of a settled course of practice would be disturbed if the Full Bench decision in the last mentioned case were upset, can hardly be taken. In the view which I take of the matter, viz. that the definitive resolution of the question has been placed by the Legislature within the sphere of subordinate legislation, there has been an irregularity in the use by the Calcutta High Court of the method of judicial decision to control the relevant jurisdiction, and this error is being repeated in the decision by the Dacca High Court, varying from that Calcutta decision. It is in my view, time that the matter is looked. at in the correct light, and the true intention of the Legislature is carried out. There is no doubt that to ascertain exactly in terms of money the advantage to a plaintiff who is in joint possession of a joint estate, obtaining by means of a suit, separate possession of a demarcated share, is impossible and the case therefore falls squarely within section 9 of the Suits Valuation Act. A fixed court‑fee gets over the difficulty from the taxation point of view, but provides no aid, such as the ad, valorem court‑fee provides, for ascertaining the correct jurisdictional value. I consider that the proper course in the case is not that the, Dacca High Court should alter the long established line of decisions by which litigants in the region have hitherto been guided to their advantage, although it appears clearly enough to be an encroachment into the sphere of legislation, but that it should undertake the duty of legislation under section 9 of the Suits Valuation Act. Until that is done, my opinion is that the rule of stare decisis requires that the previous view of the Calcutta High Court should be allowed to prevail. If my view be correct, this appeal should be allowed and the High Court should be directed to recall the Memorandum of Appeal from the District Judge, and to dispose of it in accordance with law. But as my learned brethren are of the opposite view, and that is also the view of the majority of the Bench, the appeal will be dealt with as proposed by them, viz. that it will be dismissed. S. A. RAHMAN, J.‑This is a plaintiffs' appeal brought by special leave of this Court and raises the question whether in a suit for partition of joint property by a person, claiming to be in joint possession thereof, jurisdiction is determined by the value of the share of the plaintiff in the property or the value of the joint property as a whole. The question has arisen in the following circumstances. The plaintiffs‑appellants instituted partition Suit No. 58 of 1954 in the Court of the Subordinate Judge at Bogra, for partition by metes and bounds, of their twelve annas share in 8.85 acres of land, of which they claimed to be in joint possession with the respondents. The entire lands in suit were valued at Rs. 5,350 for the purposes of jurisdiction. A fixed court‑fee of Rs. 20 was paid, as provided for in Article 17 (v‑a) of Schedule II to the Court Fees Act. The trial Judge dismissed the suit on the 22nd June 1955 and the plaintiffs appealed to the High Court. As the value of the plaintiffs' twelve annas share in the property in suit was less than Rs. 5,000 the High Court held that the appeal lay to the District Judge. Under section 21 of the Bengal, Agra and Assam Civil Courts Act, it is only appeals in suits in which the subject‑matter is valued at over Rs. 5,000 that an appeal lies to the High Court. The Memorandum of appeal was, therefore, directed to be returned to the appellants for presentation to the proper Court. An application for grant of a certificate to appeal to this Court was also refused. The Court Fees Act, 1870, which is a Central Act, was amended by Provincial Act VII of 1935 and paragraph 7 (vi‑A) was inserted therein to read as follow:‑ "In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property‑ if the plaintiff has been excluded from possession of the property of which he claims to be a co‑parcener or co‑owner according to the market‑value of the share in respect of which the suit is instituted." Under this provision, it is clear that if a plaintiff out of possession, seeks either joint possession of joint property or separation of his own share and its enjoyment in severalty. he will have to pay court‑fee ad valorem on the market value of his share so far as this Province is concerned. At the same time, in Schedule II to the Act, item (v‑a) was inserted in Article 17 thereof, which provided for a fixed court‑fee in suits "for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property, if the plaintiff is in possession of the property of which he claims to be co‑parcener or co‑owner." Section 8 of the Suits Valuation Act, 1887, enacts: "Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), court‑fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court‑fees and the value for purposes of jurisdiction shall be the same". It will be noticed that this section contains no exception in favour of suits contemplated by section 7 (vi‑a). In a case, falling within section 7 (vi‑a), therefore, the jurisdictional value would follow the value of the plaintiff's share fixed for purpose of court‑fees. This section, however, could not be pressed into service for cases falling within Article 17 (v‑a) of the Second Schedule to the Act, as only a fixed court‑fee as contrasted with ad valorem court‑fee is payable in such suits. No rules have been framed under section 3 of the Suits Valuation Act by the Provincial Government or under section 9 thereof by the High Court. There is thus no distinct provision of law under which the jurisdictional value in a suit of the type under consideration could be fixed. The question that falls for determination is what should be regarded as "the value of the suit" within the meaning of section 21 of the Bengal, Agra and Assam Civil Courts Act in such cases. The Calcutta High Court apparently has been following the view that the value of the suit shall be the value of the whole property if the plaintiff was in joint possession, but that if he was out of possession, the value of his share alone should be the basis for the jurisdictional value. The Dacca High Court has differed from this view in a Full Bench decision, reported as Khayertullah Mondal v. Kamala Kanta Saha (P L D 1960 Dacca 565). It was held therein "that in suits for partition where the plaintiff claims to be in joint possession, 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". While discussing this question, the learned Judges have pointed out that the view expressed by the Calcutta High Court. though shared by the Patna High Court, has been dissented from by several other High Courts in India. It is contended before us, that the view that found favour with the Dacca High Court is erroneous in so far as it extends the principle, governing suits for partition when the plaintiff's is out of possession embodied in statutory provisions, to cases where the plaintiff is in joint possession of the property in suit. The very fact, that the Legislature has not provided for such a contingency, it is urged, should have persuaded the learned Judges not to disturb the long line of decisions given by the Calcutta High Court and applied to the area which is now East Pakistan. Learned counsel for the appellants has apparently in mind the principle of stare decisis. That principle has been successfully invoked where interference with a long‑accepted view would disturb settled rights to property. In a matter of fixing the forum for a trial or appeal, however there would be no such pressing consideration militating against change of precedent. It was argued before the Dacca High Court and has been reiterated before us that a partition suit is one in which really a joint declaration of the rights of all persons interested in the property is sought, that in such a suit every defendant has a right to ask to have his own share divided, that a co‑sharer claiming partition claims his respective share in every inch of the property sought to be partitioned, that the question of retention of possession of particular parcels of the land by some of the parties may arise and that, therefore, the subject matter of the suit should be regarded as the whole property and not merely the share claimed by the plaintiff. The Dacca High Court has opined that in determining the question of jurisdictional value, the allegations made by the plaintiff alone must be considered and that the pleas raised by the defendants should not affect the question. It was pointed out by the learned Judges 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 seeks to obtain separate possession of a share therein and thus merely asks for a change in the mode of enjoyment thereof The view was, therefore, expressed that the same principle should be adopted for fixing the jurisdictional value in suits falling within Article 17 (v‑a) of the Second‑ Schedule as prevails in the case of suits covered by section 7 (vi‑a). Reference was made to a 'decision of the Privy Council, reported as Bai Shevantibai v. Janardhan Raghunath Warick (71 I A 142) as lending support to this view. In that case, appellant's claim for partition of joint family property had been dismissed by the Courts below on the ground of limitation. It was held that the value of the subject‑matter in dispute on appeal to the Privy Council for the purposes of section 110 of the Code of Civil Procedure, was the value of the share of the joint family property in respect of which the appellant was claiming. Indeed, this proposition was not con troverted before the Privy Council. Their Lordships went on to examine whether the decree, refusing partition on the ground that the claim was barred by the law of limitation involves directly or indirectly some claim or question to or `respecting' the joint family property as a whole". It was observed by the Privy Council that their Lordships "feel no doubt that a question as to the title of the plaintiff to the share which she claims in the joint property does not become a question respecting ‑the whole of the joint family estate merely because if her title is established it will result in the joint family estate being partitioned'". This remark, in my opinion, affords some assistance to the position adopted by the Dacca High Court. The matter may be looked at another way. If in a suit for partition, where the plaintiff is in possession of the joint property, the forum is determined by the value of the whole property, while in case the plaintiff is out of possession, only the value of his share is taken as the basis for the jurisdictional value; it would involve the anomaly that a suit asking for a higher relief would be adjudicated upon in a lower forum and that asking for a lesser relief which was included in the other suit might go to a 'higher Court. The merit of the view taken by the Dacca High Court is that it avoids such an anomaly. I would, therefore, hold that the Dacca view should be upheld as in consonance with the general principles and the spirit of the statutory provisions governing suits for partition by plaintiffs who are out of possession. I would, dismiss the appeal, but in view of the circumstances, leave the parties to bear their own costs in this Court. B. Z. KAIKAUS J. ‑This is an appeal by special leave against the order of High Court of East Pakistan refusing to entertain an appeal on the ground that it lay to the District Judge. The suit out of which this appeal arises was one for partition of land. The‑plaintiff had alleged in the plaint that he was in joint possession of the property in suit. He had valued the ‑ whole property at Rs. 5,350, he himself being entitled to a 12 anna share in it. The suit having been dismissed he filed an appeal to the High Court. Following Khayertullah Mondal and others v. Kamale Kanta Saha and others (P L D 1960 Dacca 565) which is a Full Bench case, the learned Judges of the High Court held that value for jurisdiction of the suit was the value of the share of the plaintiff, and that being below Rs. 5,000 the appeal lay not to the High Court but to the District Judge in accordance with section 21 of the Bengal, Agra and Assam Civil Courts Act which provides that in cases where the value of the original suit is less. than Rs. 5,000 appeal will lie to the District Judge. The sole question in the present appeal is whether the value of the original suit is the value of the share of the plaintiff or the value of the whole of the joint property in suit. The value far jurisdiction has to be determined in accordance with the provisions of the Suits Valuation Act. The scheme of that Act is that by reference to classes of suit, as they appear in the Court Fees Act, it provides by its section 8 that the value for jurisdiction for some of those classes will be the same as the value for court‑fees; by its section 9 it authorizes the High Court to frame rules regulating the value for jurisdiction for some classes, and for the remaining classes it makes no provisions at all except that, by section 8 it authorizes the Provincial Government to frame rules for determining the value of land or an interest in land. In a case which is not covered either by section. 8 or by a rule framed by the High Court or the Provincial Government the value for jurisdiction will be the true value of the subject‑matter of the suit to be determined by the Court itself. ' The case before us is one for which there is no provision either in section 8 or in any rule and the Court has itself to determine the proper value of the subject‑matter of the suit. The, question therefore to which the Court would have to address itself in a case like the present would be what is the subject‑matter of a suit for partition, and this is the point which will ultimately have to be discussed ‑in this judgment. But before proceeding to discuss it I have to mention an aspect which is almost con clusive of the matter unless we are prepared to introduce a serious inconsistency in the‑assessment of jurisdiction values. That aspect is that so far as East Pakistan is concerned the jurisdictional value of a suit for partition in case the plaintiff is out of possession is in accordance with section 8 of the Suits Valuation Act the value of the plaintiffs' share. For an explanation of this matter it is necessary to make some reference to Provincial amendments made .to the Court Fees Act in Bengal. In 1935 by a Provincial amendment section 7 (iv) (b) of the Court Fees Act which related to a suit to enforce a right to a share in joint family property was deleted and section 7 (vi‑a) was added which ran: "In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property‑ If the plaintiff has been excluded from possession of the property of which he claim to be a coparcener or co‑owner according to the market value .of the share in respect of which the suit is instituted." This subsection applies not only to joint family property but to all joint property and fixes the value for the purpose of court‑fee as the share of the plaintiff. At the same time, to Article 17 of Schedule II, sub‑article (v‑a) was added which runs:‑

"in Bengal (v‑a) for partition and separate | possession of a share of joint family property | or of joint property, or to enforce a right to | a share in any property on the ground that | Fifteen rupees it is joint family property or joint property. | If the plaintiff is in possession of the property | of which he claims to be a coparcener or co | owner." |

According to this provision a fixed court‑fee was to be paid in a case where the plaintiff was in possession of the joint property. Previous to this addition in Article 17, the various High Courts of India had taken the view that the case where a plaintiff was in possession would fall under Article 17 (vi) which provides for a suit the subject‑matter of which it is not possible to estimate in money value. On account of the introduction of section 7 (vi‑a) the value for jurisdiction of a suit for partition where the plaintiff was out of possession became fixed at the value for court‑fees on account of section 8 of the Suits Valuation Act, which funs :‑ "Where in suit other than those referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), court‑fees are payable ad valorem under the Court: Fees Act, 1870, the value as determinable for the computation of court‑fees and the value for purposes of jurisdiction shall be the same." In accordance with this section if the suit is not one of the classes mentioned in it and court‑fees are payable ad valorem, the value for court‑fee and jurisdiction has to be the same. Section 7 (vi‑a) is not one of the provisions mentioned in section 8 and court‑fees have under it to be paid ad valorem, therefore the value for jurisdiction and court‑fee of such a suit are indentical. Under the circumstance, it is not quite easly for the plaintiff to allege that the value for jurisdiction of the present suit should be more than the value of the plaintiff's share. In suit for partition where the plaintiff is out of possession obviously the plaintiff is claiming a higher relief than in a case where he is in possession ; not only that, the relief in the first kind of suit actually includes the relief in the second kind of suit. When the plaintiff is out of possession of joint property the grant to him of separate possession of his partitioned share amounts really to two reliefs (1) joint possession of his share, and, (2) the transformation of that joint possession into separate possession of his partitioned share, for (and it is a proposition well supported by authority) a plaintiff out of possession is not entitled to partition unless he first gets joint possession. If the Legislature assess the jurisdictional value in case of two reliefs at the value of the plaintiff's share it is evidently creating an inconsistency to say that the jurisdic tional value in the case of one out of those two reliefs should be the value of the whole property. The difficulty which this inconsistency will creates may be illustrated by referring to an example Suppose, the plaintiff who alleges that he is in joint possession of property of which he holds one‑tenths share files a suit for partition fixing the jurisdictional value at the value of the whole property. The defendant objects that the plaintiff is not in possession and an issue is farmed, and it is decided that the plaintiff is not in possession: The plaintiff is then allowed to amend the plaint (because it is only proper that he should be allowed to amend by including a prayer for possession). Now while the plaintiff adds this relief he will at the same time have to bring the jurisdictional value to only one‑ten of what it originally was. Another inconsistency will be created by the acceptance of the plea of the appellant bet to that inconsistency no reference was made at the hearing and I prefer dealing with it latter in the judgement at what I regard as a more appropriate place. The argument on behalf of the plaintiff‑appellant is this the view of the Legislature that in a suit for partition when the plaintiff is out of possession the subject‑matter is only the share of the plaintiff is really not correct ; in so far as there is a specific statutory provision we are bound to obey the Legislature and, therefore, in a case where the plaintiff is out of possession the jurisdictional value must be according to the share of the plaintiff but there is no reason why we should accept this wrong basis in a case whose we are not bound do so, and therefore even if this inconsistency is involved we should in a case where the plaintiff is in possession accept what on logical reasoning is the value of the subject‑matter of the suit for partition. This is the way the plaintiff puts it. I would put it a little different, that is, that we should not create an inconsistency unless we are forced to do so. However, let us consider, apart from section 7 (vi‑a) of the Court Fees Act which after all is only a Provincial amendment, what should be the jurisdictional value of a suit for partition? The answer depends upon the view we take as to what is the subject‑matter, of such a suit is the subject‑matter of a suit for partition the right of the plaintiff or the property in relation to which he claims that right? If it be the right of the plaintiff there can be no question that in a case like the present the jurisdictional value would be only the share of the plaintiff. ` I do not think it is possible to support the proposition having regard to the various provisions of the Court Fees and the Suits Valuation Acts that the Subject‑matter,' of a suit is the physical property to which the right of the plaintiff relates. When a suit is filed for joint possession of a share of immovable property nobody has ever contended, nor cite`' it be reasonably contended that either the value for court‑fees or the value of jurisdiction is to be determined on the basis of the whole property, and not the plaintiff's share Suits for easements, for benefits, to arise out of land, for leases, for injunctions, may relate to large areas of immovable property, but there valuations is in accordance with that value of the right claimed by the plaintiff. No plaintiff is bound to pay court fee on the entire property to which his right relates. A tenant who is dispossessed by his landlord can recover the property on paying court‑fees on one year's rent and the jurisdictional value in such a case follows the value for court‑fees. Similar is the case of a landlord suing to eject his tenant, the right in dispute in such a suit being .only the encumbrance .on the owner's right created by the lease. It is not necessary to multiply examples, for it is to difficult to contest this proposition, but I may in‑this connection refer to the fact that in jurisprudence ownership, strictly speaking, relates not to any physical property but to a right. As is stated in Salmond's Jurisprudence "Ownership in its most comprehensive significance denotes the relation between a person and any right vested in him. That which a man owns in this sense is in all, cases a right". When a plaintiff comes to Court he claims certain rights which are in dispute, it is that which is the subject‑matter of the suit. I want to draw attention here pointedly to the fact that it is the rights of the "plaintiff" that is to c institute the subject-matter. The subject‑matter has no reference to the rights of the defendant or to the issues which may incidentally arise in the suit. Quite apart from the provisions of the Court Fees and the Suits Valuation Acts it must be head on general principles the subject‑matter of a suit is the right claimed by the plaintiff in respect of which he prays for relief and it runs through the provisions of these two Acts that the subject‑matter is such right alone. There two possible arguments in favour of` the view that the whole property is the subject‑matter of the partition suit. The first is that title to the whole of the property may be determined in such a suit; the second is that the Court may have to deal with the whole property by partitioning it and in such a case the whole property becomes the subject‑matter. So far as the first point is concerned, it will be observed that there will be no reason for treating a suit for joint possession differently from a suit for partition. When a person sues for joint possession of one‑hundreth share, title to the whole of the property may incidentally have to be determined in the same way as in a suit for partition, but it is not contended that in a suit for joint possession jurisdictional value should be the value of the whole of the joint property: Similarly, in cases where some right in relation to corporeal property is claimed by the plaintiff the questions of title in respect to whole of the property may have to be decided. In suits for rights of way on land, for rights of fishery, navigation, mining, rights of lease and mortgage question of title may have to be decided relating to the whole propery. One would have to run counter to the whole scheme of the two Acts and a volume of case law in order to hold that in such cases the subject‑matter of the suit is the property in relation to which a right is claimed. It will not be out of place to refer here to section 3 of the Suits Valuation Act. It empowers the Provincial Government to frame rules for determining the value of "land" or an "interest in land". If in a suit for the recovery of an interest in land the subject matter was the whole land and not merely the interest there would be no need to determine the value of the interest. As regards the contention that the whole property may have to be divided, and if the whole of the property is dealt with, it becomes the subject‑matter of the suit we will have to consider what is the nature of a partition suit. But let me state what I regard to be the fundamental point never to be lost sight of, namely, that the valuation of a suit depends upon the right which the "plaintiff" claims. This value is fixed as soon as a suit is filed, and is not enhanced or diminished, except in cases where the valuation is originally notional, and the true value is to be determined only after a finding by the Court. However, to proceed with the question of the scope of a suit for partition, what are the matters which the Court is to decide. It appears to me the ordinary rule that the Court is concerned with the fight of the plaintiff applies to this suit as it applies to other stilts. In a partition suit the only issue as to title would be does the plaintiff own the share he claims? The Court may while determining the right of the‑plaintiff incidentally determine rights of other persons, but that will be only to the extent to which it is necessary to do for determining the title of the plaintiff. If the Court decides the question of title in favour of the plaintiff it will then proceed to partition the property, but let me point out here that the partition is really an enforcement of the right which has been found in favour of the plaintiff and may well have been left to the executing Court. It is just a matter of procedure that we call the decree declaring the right of plaintiff a preliminary decree; we may well have called it a final decree and the actual partition may have been regarded as an execution and in that case there could not have been an argument that because the Court has to partition the whole property, the whole property is the subject‑matter, for the jurisdictional value cannot increase after decree. As things stand at present, up to the stage of preliminary decree the subject‑matter is only the share of the plaintiff and it is only when the Court may have to divide the whole property that the subject‑matter in accordance with the argument I am considering increases. Let me state here that the plaintiff himself can never ask for the separation of shares of the defendants. He has no right to pray for that, for he can only enforce his own right and that is confined to the separation of his share. The original scope of the suit is therefore only the separation of the share of the plaintiff and it is only if the defendants too ask for a separation of their shares that a question arises as to whether the subject matter has increased and the jurisdictional value has been affected. The original jurisdictional value has to be the share of the plaintiff for the defendants may not ask for separation of their shares at all. The Court may simply determine the share of the plaintiff and separate it. In the view that I take I am supported by the decision of the Judicial Committee of the Privy Council in Bai Shevantibai v. Janardhan Raghunath Warick (71 I A 142 at p. 147). That was a partition suit which had been dismissed on the ground of limitation by the High Court and certificate for leave to appeal having been applied for a question arose as to whether: (1) the subject‑matter on appeal to the Privy Council was the share of the plaintiff or the whole of the joint family property ; and (2) the appeal involved directly or indirectly a claim or question as to title to the whole of the joint property. Both questions were answered in the negative as will appear from the following extract from the judgment "Their Lordships are satisfied that the appellate Court were correct in holding that the value of the subject‑matter in dispute on appeal to His Majesty in Council must be taken to be the value of the share of the joint family property in respect of which the appellant is claiming, and, indeed, this view was not disputed before their Lordship's Board. A further question however, remains, namely, 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. Their Lord ships do not find it necessary to decide whether the words of the second clause in section 110 can on their true construction ever refer to any property but that outside the suit. It is enough for the purposes of the present case to say that their Lordships feel no doubt that a question as to the title of the plaintiff to the share which she claims in the joint property does not become a question respecting the whole of the joint family estate merely because if her title is established it will result in the joint family estate being partitioned." I proceed now to consider the situation that arises if some defendant asks for separation of his share. There is, strictly speaking, no rights at all in a defendant to have his share parti tioned any person who wants some relief from a Court has to file a suit and to pay court‑fee on it. The defendant may be out of possession and he cannot have his share, separated and possession granted to him just because he happens to be a defendant in the suit. Even if he be in possession, he wants to get relief for which he would otherwise have to pay court‑fee under Article 17 (v‑a), Schedule II. If a defendant wants to have his share partitioned the ordinary rule should be that he files a suit for it. We may, waiving a formality, allow him to make such a claim even in a written statement provided he pays court fee on this claim. In such a case, truly speaking, the written statement is only a plaint, and proceedings in the two suits, that is one filed by the plaintiff and the other by the defendant, are deemed to be consolidated, and the answer to the question as to what is hence forth the jurisdictional value of the suit would depend upon whether we regard the two suits as one or whether we regard it an ordinary case of consolidation. If it is a simple consolidation of two suits, i e., there is no effect on jurisdictional value. If we take the view that the defendant who has prayed for a partition of his share should also be regarded as plaintiff in the suit then the jurisdictional value would be the total of the values of the shares of the plaintiff and of those defendants who claim to have their shares separated. The question as to which of these two views should be adopted is not necessary for the purpose of this case. I would prefer the view that the jurisdiction value of the original suit does not change and one of my reasons for taking this view is that assuming that the other view is also possible, we would prefer the view which does not create a clear inconsistency. It is to be kept in mind that even in a suit where the plaintiff is out of possession the defendants may claim to have their shares separated, and if we are to be consistent then even in such a suit jurisdictional value should increase by the fact that defendants have claimed separation of shares, but we are debarred from doing so on account of section 8 of the Suits Valuation Act in a case where the plaintiff is out of possession and therefore we' should not do it even in a case where he is in possession. I would put the matter thus : to avoid all inconsistencies we should take the view that the initial value of the suit never changes, that the suit sub stantially comes to an end with the determination of the plaintiff's right and the proceedings subsequent to such determination are proceedings for enforcement of that right and therefore proceedings in execution and the mere fact that in enforcement of the right of plaintiff we have to take some action in respect of other shares should riot affect jurisdictional value. I will now state the inconsistency which I said I will state at an appropriate place. Section 4 of the Suits Valuation Act will clearly stand in the way of the interpretation contended for by the appellant in a case where rules have been framed by a Provincial Government under section 3 of the Act. According to section 4 if rules have been framed with respect to an interest in land the jurisdictional value of the suits which fall under Article 17, Schedule II, cannot exceed the value of the interest in land to which the suit relates The suit for partition which the plaintiff is in possession falls under Article 17 (v‑a) so far as East Pakistan is concerned, and under Article 17 (vi) with respect to West Pakistan. The value of the interest in land to which the suit relates is clearly the value of the shares of the plaintiff alone, for the suit as it is filed relates only to the interest of the plaintiff and the question of the inclusion in the jurisdictional value of the value of the interests of the defendants arises only if and when a claim for partition of shares is made by a defendant. I do not think it is possible to contend that initially the suit relates to any interest except that of the plaintiff. Therefore, the initial valuation must always be put at a figure less than the value of the interest: As there is no provision in section 4 for subsequent enhancement of the valuation of a suit the valuation must remain as it originally was. The plaintiff who asks us to create inconsistencies has not even the support of much authority. In pre‑Partition India it was only the Calcutta High Court which took the view that in a suit for partition the subject‑matter was the whole of the joint property and the Patna High Court did follow this view. Learned counsel for the appellant confessed that the was unable to cite any case from any other High Court which supported him, and the judgment of the Full Bench reported in P L D 1960 Dacca 565 on which the decision of the High Court in the present case was based refers to a number of cases where the various Indian High Courts have taken the contrary view. There is also the Privy Council judgment to which I have already referred and which I regard as an authority directly in point for there is no reason for holding that the subject‑matter on appeal, in case a suit for partition is dismissed as time‑barred, is different from the subject‑matter of the suit. I would hold that the jurisdictional value could not exceed the share of the plaintiff and that the appeal should be dismissed, without any costs for the respondents have not appeared. HAMOODUR RAHMAN, J.‑This appeal, by special leave, is against an order of a Division Bench of the High Court of East Pakistan directing that the memorandum of appeal filed in First Appeal No. 96 of 1956, be returned for presentation before the proper forum. The said First Appeal arose out of a partition suit which was valued for purposes of jurisdiction at Rs. 5,

350. The plaintiffs, who are also the appellants in this Court, claimed to have pur chased an undivided 12 annas share in the properties sought to be partitioned from the pro forma defendants in the suit on the 1st of June 1953. According to them; their vendors jointly owned and possessed the said lands along with their other co‑sharers and since their purchase they had also been jointly owning and possess ing the same. The reliefs that they claimed in the suit were as follows :‑ (1) That the properties in the Schedule below be partitioned and a specified Saham for 12 annas shares of the plaintiffs be made and they do get Khas possession therein. (2) That a Commissioner be appointed by the Court and the works of partition be done by him. (3) That plaintiffs do get all other relief to which they may be entitled in law and equity. The High Court of East Pakistan relying on another decision of a Division Bench of the same Court in the case of Patak Chandra Haldar and another v. Sademan Howladar and others (P L R 6 Dacca 628), took the view that in a suit for partition the value of the plaintiff's share determines the jurisdiction and as such in the case under consideration, since the value of the plaintiff's share was below Rs. 5,000, the proper forum for the appeal was the Court of the District Judge and directed the return of the memorandum of appeal. The plaintiffs then applied to the High Court under clause (c) of Article 159 of the late Constitution read with section 109 (c) of the Code of Civil Procedure, for a certificate that the case was a fit one for appeal to this Court, on the ground that it involved a substantial question of law relating to the valuation of partition suits for the purposes of jurisdiction. The High Court again refused to grant the certificate, as in its view the question of law involved had in the meantime been dealt with by a Full Bench consisting of five Judges of the same High Court in the case of Khayertullah Mondal and others v. Kamalakanta Saha and others (12 D L R 326 ; P L D 1960 Dacca 565). Special leave was, however, granted to the appellants, as it was considered that the point requires an authoritative decision by this Court. The point of law, as formulated in the order granting leave, is as follows :‑‑ "Whether in a suit for partition of joint property by a person, claiming to be in joint possession, the valuation for purposes of jurisdiction is determined by the value of the share of the plaintiff in the property or the value of the whole property." The contention put forward on behalf of the appellants is that the view taken by the High Court of East Pakistan both in the case of Patak Chandra Haladar and others and in the case of Khayert ullah Mondal and others is erroneous and is based on a mis -appreciation of the true nature and scope of a partition suit. It is also complained that it has had the effect of disturbing a long established practice which had been prevailing in this part of the country since 1924. It appears that the Calcutta and the Patna High Courts have consistently since the decision in the case of Rajani Kanta Pal v. Raja Bala Dasi (I L R 52 Cal. 125) recognised the view as firmly established that in a case for partition the valuation of the entire property sought to be partitioned determines the forum of the trial as also of the appeal. This practice was also followed in the High Court of East Pakistan until the decision in the case of Patak Chandra Haladar, when the said High Court took the view that the Calcutta practice with regard to suits for partition, where the plaintiff was excluded from possession could not be treated as the correct practice 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. In the said case the plaintiff, who was out of possession, claimed partition and paid ad valorem court‑fee on the market value of the share but valued the suit as well as the appeal preferred against the decree passed in the suit at a higher figure for purposes of jurisdiction. R was not necessary in the said case for the High Court to deal with the question of valuation for purposes of jurisdiction in respect of suits for partition where the plaintiff claimed to be in joint possession but the High Court purported to lay down the same rule for determining the valuation for purposes of jurisdiction in such cases as well. As this was sub sequently considered to be in the nature of an obiter dictum, a reference was made to the Full Bench in the case of Khayertullah Mandal for clarification of the latter question. The Full Bench reconsidered the question and laid down the following rules :‑ "(a) That in suits for partition where the plaintiff claims to be in joint possession the value of his share would determine the forum of the suit, 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 or defendants. (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." The judgments in both of the above‑mentioned cases were delivered by me and I have now had the good fortune of listening to the criticisms of my own previous judgments. I propose, however, to deal with this question once again, as far as practic able, without being obsessed by my previous views in the matter. So far as the jurisdiction of Civil Courts, in this Province, is concerned, it has been defined in sections 18 to 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (now called the East Bengal Civil Courts Act, 1887). Under section 18 thereof the jurisdiction of a District Judge or Subordinate Judge extends, subject to the provisions of section 15 of the Code of Civil Procedure, to all original suits and under section 19 the jurisdiction of a Munsif is limited to suits of which the value does not exceed Rs. 1,

000. The Provincial Government can, however, by notification empower a Munsif to try suits upto Rs. 2,000 or even upto Rs. 3,500, if he holds Court at a place where the Court of a Subordinate Judge is held. So far as appeals are concerned section 20 provides that appeals from decrees or orders of District and Additional Judges shall normally lie to the High Court unless otherwise provided by any enactment. The forum for appeals from decrees or orders of other Civil Courts has been prescribed by section 21 in the follow ing manner : ‑ "21 (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie,‑ (a) to the District Judge where the value of the original‑ suit in which or in any proceeding arising out of which the decree or order was made did not extend five thousand rupees, and (b) to the High Court in any other case. (2) Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District Judge." It will be observed from these provisions that the forum of original trials and appeals are to be determined with reference to "the value of the suit". Hence the question which has to be con sidered in the present case is as to what is the value of a suit for partition. It is, of course, contended on behalf of the appellants, as was contended in the High Court, that the value of such a suit is the value of the entire estate sought to be partitioned and not merely of the particular share which the plaintiff claims. In a suit for partition, it is said, the relief that is really asked for is a joint declaration of the rights of all persons interested in the properties. Thus, even a defendant in such a suit can claim a partition of his share and, furthermore, that in order to determine even the share of the plaintiff the Court has necessarily to deal with his right in or title to the entire estate, for, strictly speaking, he is interested in every inch of that estate. Before proceeding to determine as to how the value of a suit is to be computed, I think, it should first be ascertained as to what is meant by the value of the suit. These words have not been defined in any statute but, it seems to me, hat they must have some relation to the relief claimed in the suit or the subject‑matter in dispute: Thus in the case of a suit for the recovery of money it is the amount claimed and in the case of a suit for the recovery of property it is the money value of the property sought to be recovered. In other cases where an objective standard for determining the value exists, it is the money value of the loss which the plaintiff apprehends would result to him but where no such standard exists the value at which he estimates such loss is usually accepted. If this be so, then in a suit for partition too it should be the value of the relief claimed. The learned counsel for the appellants does not dispute this but what he wishes to urge is that in order to assess the proper value of the relief one must keep in mind the true nature and scope of the relief claimed which in a partition suit, according to him, involves the determination of the title of all the parties interested in the estate sought to be partitioned. Now a suit has also to be valued for the purposes of payment of court‑fees under the Court Fees Act but the learned counsel for the appellants does not consider that any useful purpose will served by referring to its provisions, for, according to him, they only lay down a special set of rules for the determination of court fees and a suit ought not to be valued for the purposes of jurisdiction on the basis of those rules. Apart from this, there has been, in the past, so much conflict of opinion over the question as to which particular provision of the Court Fees Act applies to suits for partition that a reference to them would only create more confusion. Thus, some High Courts in India have taken the view that paragraph (iv) (b) of section 7 applies to suits for partition, but the Calcutta and Patna High Courts have always held that this particular provision does not apply to partition suits at all. According to these to High Courts in a case, where the plaintiff was in joint possession, Entry (vi) of Article 17 of Schedule II of the Court Fees Act applied prior to 1935 and in a case where the plaintiff was out of possession he had to sue for recovery of possession and the case fell under paragraph (v) of section 7 under which the plaintiff was required to pay ad valorem court fees as in a suit for recovery of possession. So far as Bengal is concerned, it is said, that this dispute was set at rest by the amending Act of 1935 which deleted section 7 (iv) (b), added a new paragraph (vi)(a) to section 7 and introduced a new entry being Entry No. (v‑a) in article 17 of Schedule II of the Court Fees Act. Paragraph (vi‑a) is in these terms :‑ "In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property‑ " if the plaintiff has been excluded from possession of the pro perty of which he claims to be a coparcener or co‑owner according to the market value of the share in respect of which the suit is instituted." This Entry (v‑a) read as fallows‑

"for partition and separate possession of a share of | Joint family property or of joint property, or to en‑ | force a right to a share in any property on the ground | Twenty that it is joint family property or joint property if | Rupees the plaintiff is in possession of the property of which | he claims to be a coparcener or owner." |

Notwithstanding these provisions, the Calcutta High Court continued to follow the practice that for purposes of jurisdiction value of the entire property sought to be partitioned should be taken into account. It is contended that this was rightly done as by making these amendments in 1935 the legislature gave statutory recognition to the view of the Calcutta High Court that partition suits are to be treated differently on the basis of the possession of the plaintiff. Thus, where he was out of possession, he would be required to pay ad valorem Court‑fees but where he continued to be in joint possession he would only be required to pay a fixed Court‑fee. Although it has been suggested that the provisions of the Court Fees Act do not specifically deal with the question of valuation for the purposes of jurisdiction, nevertheless, it has been argued that by accepting this differentiation for the purposes of Court‑fees the Legislature accepted the Calcutta view in toto both with regard to Court‑fees as well as to valuation for purposes of jurisdiction. This contention, however, does not appear to me to be correct, for, the provisions of section 8 of the Suit Valuation Act 1887, clearly refer to certain provisions of the Court Fees Act and require that in certain cases the value open which the Court fees are computed will also determine the value for jurisdiction. Section 8 is in these terms :‑ "Where in suits other than those referred to in the Court Fees Act, 1870, section 7, paragraph V, VI and IX, and paragraph X, clause (d), Court‑fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of Court‑fees and the value for purposes of jurisdiction shall be the same." This latter Act was designed, as expressed in its Preamble, to prescribed the mode of valuing certain suits for the purposes of determining the jurisdiction of Courts with respect thereto arid hence there can be no doubt that this was a provision which was directly applicable for this purpose and could not be ignored. It will be noticed from Its terms that in 1935 when the Legislature amended the provisions of the Court Fees Act it did not also incorporate, amongst the suits sought to be excepted under section 8 of the Suits Valuation Act, suits falling under the newly introduced paragraph (vi‑a) of section 7 of the Court Fees Act. Hence for determining jurisdiction in respect of suits falling under paragraph (vi‑a) the value as determinable for the computa tion of Court‑fees had necessarily to be the value for the purposes of jurisdiction as well. There could be no possible doubt with regard to this and it is difficult to appreciate how even after this, Calcutta High Court could still continue to adhere to its former practice with regard to suits of this nature. According to these provisions "the market‑value of the share to respect of which the suit is instituted", had of necessity to be the value for purposes of jurisdiction as well in the case of suits for partition where the plaintiff was excluded from possession. No doubt, section 8 of the Suits Valuation Act did not in terms apply to suits falling under Entry (v‑a) of Article 17 of Schedule II to the Court Fees Act, for, in those suits no value was required to be determined for computation of Court‑fees, as the Legislature itself determined that a fixed Court‑fee was to be payable in respect of such suits. But it seems to me that if the arguments advanced as to the nature and scope of a partition suits are valid, then they must of necessity apply to all suits for parti tion whether the plaintiff is in possession or is excluded frog possession. Surely, even in a suit for partition where, plaintiff is excluded from possession, a defendant, if lie so desires has the right to also ask for partition of his share in the event of the plaintiff being held to be entitled to partition. The argument therefore, that by the amendment of 1935 the Legislature accepted the view of the Calcutta High Court as to the nature and scope of a partition suit where the plaintiff was excluded from possession, does not appear to me to be sound. I am, on the other hand of the view that the Legislature by expressly providing in paragraph (vi‑a) of section 7 of the Court Fees Act that ad valorem Court‑fee would be paid on the market‑value of the share in respect of which the suit is instituted and making no corresponding amendment to section 8 of the Suits Valuation Act exempting such suits from the ambit of the latter, clearly negatived the view of the Calcutta High Court so far as suits of this nature were concerned. I, therefore, see no reason to change the view which I held in the case of Patak Chandra Haladar, so far as suits for partition, where a plaintiff is excluded from possession, are concerned. 'The question now arises as to whether there is any valid reason for making any differentiation in respect of suits for partition where the plaintiff is in possession. It has been argued that whatever may be the consequence as a result of the amend ments to the Court Fees Act in 1935 as regards suits of the other kind, the position with regard to suits for partition where the plaintiff is in joint possession remains unchanged and the Calcutta view must be upheld. I am unable to accede to this contention, for, on my part, I can see no valid justification for making any such differentiation. There can be no manner of doubt that in a suit for partition, where the plaintiff is excluded from possession, the plaintiff actually has in effect to ask for two reliefs, namely, (i) that he should first be put in joint possession and (ii) that thereafter his mode. of en joyment should be altered by giving him separate possession of his share. This is really a composite suit and, if by' reason of the statutory provisions alluded to earlier, the plaintiff in suit of this kind has to pay ad valorem Court‑fees on the market‑value of the share claimed by him and that value also determines the forum of the trial or appeal, then it is difficult to appreciate why in a case for partition, where the plaintiff is in joint possession and really asks for one relief, namely, a change in the mode of his enjoyment of the property by allotment in severalty the possession of his share, he must be give‑i the be refit of having his suit tried or his appeal heard by a higher Tribunal by valuing his suit according to the value of the entire property sought to be parti tioned. This would, in my opinion be creating an anomaly when in principle, there can be no difference in the nature and scope of the suits of these two kinds. Surely this anomaly should be avoided, if possible, particularly when there is nothing in reason or justice to support the continuance of such an anomalous situation. Indeed most of the other High Courts in the Indo‑Pakistan Sub‑continent have avoided this anomalous situation by holding that in both cases the valuation for purposes of jurisdiction in partition suits has to be determined upon the value of the share of the plaintiff which is really the subject‑matter of the suit. I am further of the opinion that the same conclusion will be reached if the value of a suit for 'partition is taken to be the value of the relief claimed, therein by the plaintiff. He merely claims his share out of the estate and not the entire estate. Thus, according to' me, whichever way one views the matter, the whole estate cannot form the subject‑matter of such a suit. The entire estate is merely the corpus out of which the plaintiff's claim or relief arises, but the claim itself forms the subject‑matter of the suit. The learned counsel for the appellants also invoked in aid the rule of stare decisis in order to prevent the disturbance of a long established practice of the Courts of this Province with regard to partition suits. This rule, however, is only attracted in eases where as a consequence of a course of decisions vested rights have been created and an interference with that course will disturb those rights and result in hardship to those who may have adjusted their rights in the light of those decisions. There is no such right involved in the present case and as such this rule has no application here. I may here add that I have also this opportunity to re‑examine the decisions referred to by me on this particular point in the Full Bench judgment and I am satisfied that each one of those cases was a case in which the point under consideration was the valuation for purposes of jurisdiction, and in each one of them the view taken was that the value of the plaintiff's share determined the valuation for the purposes of jurisdiction. For the reasons given above I see no reason to change the view that I took in the Full Bench case of Khayertullah Mandal and others v. Kamalakanta Saha and others, I would, therefore, dismiss this appeal, but make no order as to costs, as the respon dents did not appear to contest this appeal. In accordance with the view of tile majority this appeal is dismissed, without any costs, for the respondents have not appeared. A. H. Appeal dismissed.