PAMBAN KAYAKKAL VALSALAN Vs. PAMBAN KAYAKKAL KAUMUDI

JUDGEMENT

(1.) Although this petition is only a petition to condone the delay in filing the appeal, the real question it raises is the maintainability of the appeal in this Court. The appellant is the first defendant in a suit for partition brought by the first respondenl in the Subordinate Judge's Court. In the plaint the first respondent valued the entire suit property at Rs. 24,810/- and her one-third share at Rs. 8,270/-. By the original preliminary decree and its amendment the plaintiff and the second defendant were awarded 1/3 share each in the property. In the final decree which followed the total property was valued at Rs. 64,800/- and the plaintiff was allotted a share valued at Rs. 19,185/-, the first defendant a share valued at Rs. 25,393/- and the second defendant a share valued at Rs. 20,222.80. The first defendant was directed to pay Rupees 2,415.26 to the plaintiff and Rs. 1,377.47 to the second defendant as owelty. The memorandum of appeal carries a court-fee of Rs. 100/- as did the plaint in the Court below and it states erroneously, but in an obvious attempt to justify the institution in this Court, that the "suit valuation is Rs. 22,790/-". It is not apparent what this amount represents, though we were told that the appeal was brought in this Court on the basis of the value of the share allotted to the first defendant. The question is whether the appellant is justified in so doing.

(2.) Tbe plaintiff paid a court-fee of Rs. 100/- on the plaint under Section 37 (2) (ii) of the Court-fees and Suits Valuation Act ("Court-fees Act") on the allegation that the value of her share was less than Rs. 10,000/-, to wit Rs. 8.270/. In terms of Section 53 (2) the jurisdiction was determined by the market value and the suit was brought in the Subordinate Judge's Court. This would have been the result whether the basis was the market value of the plaintiff's share or of the entire suit property in view of Section 11, Civil Courts Act. But in a suit for partition by a person in joint possession the valuation for the purposes of jurisdiction is the market value of the plaintiffs share : Mallayya v. Jagannadhamma, (1941) 2 Mad LJ 567 : (AIR 1942 Mad 103 (1)), where following certain earlier cases it was held that as the plaintiff's share was not less than Rs. 10,000/- the suit should be instituted in the Subordinate Judge's Court and not the Munsiff's Court. The same view was taken in Venkataratnamma v. Narasimha Rao, (1944) 2 Mad, LJ 309 : (AIR 1945 Mad 56); Kalander v. Kunhipokki, (1947) 1 Mad LJ 112 : (AIR 1947 Mad 273) and K. Natesa Ayyar v. Kothandarama Ayyar, (1951) 2 Mad LJ 92 : (AIR 1951 Mad 1002) where (1941) 2 Mad LJ 567 : (AIR 1942 Mad 103 (1)) was followed. A learned Judge of this Court held in Gopalan Nambiar v. Balakrishnan Nambiar, 1972 Ker LT 1087, that in a suit for partition the relief sought by the plaintiff relates to his share of the properties, that the jurisdictional value should be the value of that share and that it was not possible to hold that the relief could not be estimated at a money value.

(3.) It is the plaintiff who seeks relief and pays court-fee and determines the jurisdiction of the Court, in the present case the value of the plaintiff's share exceeded Rupees 5,000/- and the suit was brought in the Subordinate Judge's Court but if the value had been less, the suit would have been laid in the Munsiff's Court in accordance with Section 11 (2) of the Civil Courts Act which to far as material provides that :