BANSILAL LALCHAND FIRODIA Vs. BHIKUBAI

JUDGEMENT

(1.) THIS appeal arises from a suit filed by the two sons and the wife of Zumburlal in which it was alleged that Zumburlal had passed a sale-deed in favour of defendants Nos. 1 and 2 purporting to transfer the property belonging to the undivided family of the plaintiffs and Zumburlal and that the said sale-deed was not justified by any legal necessity nor was it passed for any purpose binding upon the plaintiffs. The plaintiffs, therefore, claimed a declaration that the said sale-deed was not binding upon the plaintiffs in any way, and that defendants Nos. 1 and 2 have not obtained any right, title or interest thereby, and that they have no right to ask for the possession of the properties conveyed under it. As a consequence of the said declaration a permanent injunction was claimed restraining defendants Nos. 1 and 2 from taking possession of the property sold to them under the said document. For the purpose of court-fees the plaintiffs had valued their claim at Rs. 205, whereas for the purpose of jurisdiction the claim was valued at Rs. 15,000. To the suit were impleaded the two purchasers as defendants Nos. 1 and 2, and the father Zumburlal as defendant No.3. The claim made by the plaintiffs was resisted by the purchasers on several grounds and the learned Judge proceeded to frame issues arising from the said contentions, and has, in the end, passed a decree giving the plaintiffs certain reliefs in conformity with his findings on those issues. Against the decree thus passed by the learned Civil Judge (Senior Division), Ahmednagar, the present appeal has been preferred by defendants Nos. 1 and 2.

(2.) AT the hearing of the appeal Mr. Nijsure for the plaintiffs has raised a preliminary objection. He contends that the appeal presented to this Court is incompetent, and that the only remedy available to the appellants was to make an appeal to the District Court at Ahmednagar. The suit from which the present appeal arises was, according to Mr. Nijsure, a suit for declaration and injunction to which the provisions of Section 7 (iv) (c) of the Court-fees Act apply. In regard to such a suit the claim for court-fees determines the claim for jurisdiction, for Section 8 of the Suits Valuation Act provides that in such suits "the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. " The value as determinable for computation of court-fees has been definitely computed at Rs. 205 and court-fees have been paid on that amount. Mr. Nijsure contends that the determination of the value for the payment of court-fees automatically determines the value for the purpose of jurisdiction and the statement made in the plaint that the claim for jurisdiction was Rs. 15,000 could not, in any manner, affect this legal position. If the valuation for jurisdiction is taken to be the same as that for court-fees, namely Rs. 205, it is clear that the appeal against the decree passed in such a suit would lie not to this Court but to the District Court. In support of his contention Mr. Nijsure has relied upon a decision of the Privy Council in Sunderabai v. The Collector of Belgaum (1918) I. L. R. 43 Bom. 376, s. c. 21 Bom. L. R. 1148, P. C. The said appeal arose from a suit in which the plaintiffs had alleged that the property in suit was inalienable and that one Lingappa who had purported to dispose of that property by his will and codicil had no power to alienate the property. Plaintiff No.2 claimed to be the validly adopted son of Lingappa, and as such son he claimed, a declaration that Lingappa had no power to make the will and codicil and that no right accrued to the defendants under the will and the codicil. He also claimed a perpetual injunction restraining the defendants from recovering the properties in suit from the plaintiffs. The claim for injunction was valued in the plaint at Rs. 5.The First Class Subordinate Judge tried the suit and gave the plaintiff the declarations and the injunction as claimed by him. From that decree the defendants preferred an appeal to the High Court. An objection was raised at the hearing of the appeal that the High Court had no jurisdiction to entertain the appeal, since both for the purposes of court-fees and for the purposes of jurisdiction the claim was less than Rs. 5,000. The said objection was upheld and the appeal was returned to the appellants for presentation to the proper Court. Subsequently the proceedings came to the High Court, and against the decision of this Court the matter went to the Privy Council. While referring to the order by which this Court had returned the appeal to the appellants for presentation to the proper Court, their Lordships of the Privy Council observed that the course adopted by the High Court was obviously the right one to adopt. Mr. Nijsure has also relied upon a decision of Beaumont C. J. in Jamnadas v. Chandulal (1936) 39 Bom. L. R. 138 where it has been held that in a suit for declaration and injunction the valuation of claim for the computation of court-fees and for the purposes of jurisdiction being the same, under Section 8 of the Suits Valuation Act, the value adopted for court-fee purposes under Section 7 (iv) (c) of the Court-fees Act, 1870, will determine the jurisdiction of the Court which hears the case. A similar question was raised before another Bench of this Court in Pherozshaw v. Waghji (1911) 13 Bom. L. R. 158. A suit had been filed in which the plaintiff had claimed declaration and injunction, the claim for court-fees having been valued at Rs. 540. Shortly before the judgment was delivered, a purshis was filed signed by the pleaders of both the parties that the value of the property in suit was agreed to be Rs. 10,500. Against the decree passed by the Subordinate Judge in the said suit an appeal was preferred to this Court. AT the hearing of the appeal a preliminary objection, similar to the one raised in this case, was raised and upheld for the same reasons. It was pointed out that under Section 7 (iv) (c) of the Court-fees Act and Section 8 of the Suits Valuation Act read together a statutory method for computing the valuation seems to have been provided for the purpose of determining the amount of the claim for the purpose of court-fees as was for jurisdiction in certain class of suits. Suits falling under Section 7 (iv) (c) of the Court-fees Act fall under this class of suits. So that if the amount for which court-fee has to be paid is determined by the plaintiff naming that amount under Section 7 (iv) (c), the amount for jurisdiction is as a necessary consequence automatically determined. On behalf of the appellant it was contended before the Court that both the parties had passed a purshis agreeing that the valuation for the purpose of jurisdiction should be more than Rs. 5,000, and it was suggested that the respondent should not be permitted to make a contention inconsistent with the purshis which had been filed on his behalf in the Court below. This contention was negatived by Scott C. J. , and he observed that if according to the statutory method of valuation the value of the suit is less than Rs. 5,000, consent of the parties cannot make it more than Rs. 5,000 for the purposes of jurisdiction.

(3.) THE other case on which Mr, Coyajee has relied is Gajramji Jasramji v. Somnath Bhudardas (1939) 42 Bom. L. R. 443. In that case the plaintiff had filed a suit for a declaration that certain property was either public or private religious property and for taking accounts of the management of the property. Originally the claim had been valued by the plaintiff at Rs. 220 and the plaint was presented in the Court of a Subordinate Judge of the Second Class. THEreupon the defendant objected that the value of the property in suit was really Rs. 10,000 and that the suit should be transferred to the Court of a First Class Subordinate Judge. THE objection raised by the defendant was upheld by the Second Class Subordinate Judge and the suit was accordingly transferred to the Court of the First Class Subordinate Judge. THE latter Judge proceeded to deal with the suit and gave the declaration to the plaintiff as sought by him. Against that decree the defendant preferred an appeal in this Court and at its hearing the plaintiff raised a preliminary objection that the suit fell under Section 7 (iv) (c) and (f) of the Court-fees Act and that under Section 8 of the Suits Valuation Act the claim for jurisdiction must be held to be less than Rs. 5,000 and that the appeal, therefore, lay to the District Court and not to the High Court. Broomfield and Divatia JJ. took the view that there were some special facts in that ease, and that as a result of those special facts it would not be unreasonable to adopt the course which had been adopted on an earlier occasion by this Court in Balkrishna's case. It was pointed out that at an early stage in the suit a contention was expressly raised by the defendant as to the proper value for the purpose of jurisdiction and that contention had been upheld with the result that the suit had been transferred to the First Class Subordinate Judge. THE learned Judges took the view that this decision as to the valuation for the purposes of jurisdiction was acquiesced in by the plaintiff and that as a result, at subsequent stages of the same proceeding the plaintiff could not be permitted to raise a contention contrary to the said finding. Divatia J. put this position against the plaintiff on the ground of estoppel, whereas Broomfield J. held that the plaintiff could not be permitted to approbate and reprobate. In this case again there was one circumstance which was regarded as a special circumstance, namely, the decision of the Court about the valuation for the purposes of jurisdiction against which no complaint was made by either of the parties at the proper stage.