Amir Nawab vs Mt. Wajeda Begum and Others

This matter comes before us for a consideration of the question as to whether this Court has jurisdiction to entertain this appeal.

It appears that the Defendant No. 1, Mt. Wajeda Begum, obtained a decree for dower against her husband Saiyid Amir Nawab, who is the plaintiff in the suit, in March 1925. In execution of that decree she attached certain properties alleging the same to belong to her judgment-debtor, the plaintiff, in the present suit. The plaintiff objected to the attachment on the ground that the properties sought to be attached were not his personal properties but were waqf properties and that he was in possession as mutwali. His objection was disallowed.

The plaintiff thereupon instituted a suit, out of which the present appeal arises, in the Court of the Subordinate Judge of Patna for a declaration that the properties were waqf properties and not his personal properties. The learned Subordinate Judge dismissed the suit.

In her application for execution the Defendant No. 1 valued the properties sought to be attached at Rs. 3,200. The plaintiff in his suit valued the properties at the same amount of Rs. 3,200. No objection appears to have been taken by the Defendant No. 1 as regards this valuation. No issue was framed on the point, and the suit was disposed of by the Subordinate Judge on the valuation as given in the plaint.

According to this valuation an appeal against the decision of the Subordinate Judge would lie to the Court of the District Judge. The plaintiff-appellant has, however, preferred the appeal to this Court and has valued the appeal at Rs. 21,620-4-0. The reason of the increase in the valuation is stated to be this: two properties formed the subject-matter of the suit. One of the properties; was acquired by the Government under the Land Acquisition Act and a sum of Rs. 20,420-4-0 was paid as compensation thereof. The other property in suit has been valued at Rs. 1,200; and thus the plaintiff appellant has valued the appeal at Rs. 21,620-4-0.

The acquisition of the property was made, according to the statement of the parties, in December 1925, and the compensation of Rs. 20,420-4-0 appears to have been awarded before the institution of the suit in January 1926. The defendant-respondent does not challenge the correctness of the fact that one of the properties is now represented by a sum of Rs. 20,420-4-0 as compensation awarded under the Land Acquisition Act. The value of the subject-matter of suit, therefore, is now above the sum of Rs. 5,000.

The question is, whether, under these circumstances, the forum of appeal would be determined by the valuation as stated in the plaint, or by the real value of the subject-matter of the suit.

The stamp reporter reported that the appeal would lie to the Court of the District Judge inasmuch as the valuation put by the plaintiff in his plaint determined the jurisdiction of the Court, and the value of the subject-matter of the suit, as fixed in the plaint, determined the forum of appeal. The learned Registrar was also of opinion that the appeal lay to the District Judge, and he relied upon the provisions of Section 21(1) of Act 12 of 1887

The matter was referred to a Bench, and, by an order dated the 14th of December 1926, the Court directed notice to issue on the respondent for determining the question as to whether this Court has jurisdiction to entertain this appeal. Both parties have appeared, and we have heard arguments of the learned advocates on both sides.

u/s 8 of the Suits Valuation Act where, in suits other than those-referred to in Section 7, paras. 5, 6 and 9, and para. 10, Clause (d), of the Court-fees Act, Court-fees are payable ad valorem, the value, as determinable for the computation of Court-fees and the value for purposes of jurisdiction, shall be the same. In the present case Court-fee is payable under Schedule 2, Article 17 of the Court-fees Act. The fee payable on the plaint, as well as on the memorandum of appeal, is a fixed sum of Rule 15 and not ad valorem.

Therefore, the value of the subject-matter of the suit must be the market value thereof. Having regard to the circumstances of the present case, thererore be no doubt that the market value of the subject-matter of the suit exceeds the sum of Rs. 5,000, and u/s 21(1) of Act 12 of 1887 the appeal would lie to the High Court.

It has, however, been contended on behalf of the defendant-respondent that the plaintiff having valued the properties in suit in his plaint at a sum below Rs. 5,000, he is not now entitled to alter the valuation, and that the value of the subject-matter of the suit must betaken to be the valuation as stated in the plaint and that, therefore, the appeal would lie to the District Judge. The learned advocate for the defendant-respondent referred to Order 7 Rule 1, Civil P.C, where it is provided that the plaint shall, among other matters, contain a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees so far as the case admits. He next refers t a Section 96 of the Code and contends that the appeal would lie to the Court authorized to hear the appeal, and that the Court authorized to hear this appeal u/s 21 of. Act 12 7of 1887 is the Court of the District Judge.

These provisions, however, in my opinion do not help us in determining the question now before us. Order 7, Rule 1 merely directs that the value of the subject-matter of the suit should be stated in the plaint, and Section 96 directs that the appeal would lie to the Court] authorized to hear the appeal. The real question is what is the value of the subject-matter of the suit. The value of the subject-matter of the suit unquestionably exceeds the sum of Rs. 5,000, and, therefore, the Court authorized to hear the appeal would be the High Court.

It is, however, entrenched that the plaintiff having valued the subject-matter of the suit in the plaint at a certain sum cannot now turn round and say that the valuation is higher than that sum. In my opinion there is nothing in the law to prevent the plaintiff-appellant from showing what the real value of the subject-matter of the suit is. Oases have frequently come up to this Court where objection has been taken that the valuation given in the plaint did not represent the true value of the subject-matter of the suit, and this Court has on several occasions enquired into the real value of the subject-matter of the suit in spite of the fact that the plaintiff had stated the value at a certain figure in the plaint.

In Mohini Mohan Misser v. Gour Chandra Rai [1920] 5 Pat. L.J. 397 the suit was valued in the plaint at Rs. 1,400. An appeal against the decree passed by the trial Court was filed in the Court of the District Judge; and, on the ease coming up in Second Appeal to the High Court against the decree of the District Judge in appeal, it was found that the proper valuation of the subject-matter of the suit was Rs. 16,275. It was held that the appeal to the District Judge was incompetent and that his decree was without jurisdiction. No doubt objection as regards valuation in that suit was taken in the trial Court as well as in the District Judge''s Court, but this circumstance does not affect the question now for determination.

In Mahanth Rukmin Das Vs. Deva Singh @ Mahanth Deva Das and Others, it was held, under similar circumstances, that the appeal to the District Judge was incompetent and his decree was without jurisdiction.

In Shah Radha Kishun v. Mahadeo Lal Second Appeal No. 1204 of 1922, the Second Appeal was heard by a Division Bench of this Court and judgment delivered. But before judgment was signed, a question was raised as regards the value of the subject-matter of the suit. An inquiry was ordered, and it was found that the value exceeded the sum of Rs. 5,000. It was held that the District Judge Had no jurisdiction to hear the appeal and his decree was set aside on this ground, and the memorandum of appeal presented in the Court of the District Judge was directed to be returned in order to be presented to this Court.

It is contended that, having regard to the valuation put by the plaintiff in his plaint, the memorandum of appeal must be presented before the District Judge, and the question as regards valuation determined by him; and, if he found that the value exceeded the sum of Rs. 5,000 it was for him to return the memorandum of appeal to be presented to this Court, and that the plaintiff-appellant could not come up directly to this Court without first going to the Court of the District Judge. In my opinion this is not the proper procedure. If the District Judge had no jurisdiction to entertain the appeal, the plaintiff-appellant cannot be compelled to present his memorandum before the District Judge with the object of its being returned.

The question whether the plaintiff can be allowed to show that the valuation given by him in the plaint is below the real value has been frequently raised in applications for leave to appeal to the Privy Council. u/s 110, para. 1 Civil P.C, the amount or value of the subject-matter of the suit in the Court of first instance must be Rs. 10,000 or upwards, and plaintiffs'' desiring to appeal to His Majesty in Council have frequently been allowed to show that, although the valuation put by them in the plaint was below the sum of Rs. 10,000, yet the real) value was above Rs. 10,000

On a consideration of all the circumstances we are of opinion that this Court has jurisdiction to entertain this appeal and the memorandum of appeal was properly presented to this Court.

We, therefore, direct that the appeal be admitted and proceeded with in the ordinary course.