1. This is an appeal in a suit filed by the respondents which was described as an administration suit and has been held to be such by the trial Court, the First Class Subordinate Judge of Surat. A preliminary decree has been passed, presumably under Order XX, Rule 13, directing inquiries to be made and accounts taken.
2. An objection has been taken by the respondents that the appeal lies to the District Court, Surat, and not to the High Court. We are of opinion that this objection must be sustained.
3. The allegations in the plaint are as follows. One Pranjivandas Bijvallabh-das died at Surat, on February 4, 1930; plaintiffs Nos. 1 and 2 and the defendants are the executors of a will made by him on August 10, 1927; and plaintiffs Nos. 3 to 6, 8 and 9 are the daughters of the deceased and plaintiff No. 7 is the son of plaintiff No. 6. The deceased left immovable and movable property of considerable value which is described and valued so far as the information of the plaintiffs goes, but they say that they are not at present in a position to state the same definitely. Defendant No. 1 is a distant relative of the deceased, viz., the son of his maternal uncle's daughter's son, but he was brought up and maintained by him.
4. In the will of August 10, 1927, which was propounded by the plaintiffs as the last will and testament of Pranjivandas, various legacies have been given to plaintiffs Nos. 4 to 9, and certain property has been given to them and other property has been given to the defendant and his wife subject to certain restrictions.
5. It is alleged by the plaintiffs that defendant No. 1 procured and fabricated another will which he put forward as having been executed by Pranjivandas in February, 1930, shortly before his death. The plaint alleges that this will is null and void and cannot be given effect to. In paragraph 7 of the plaint it is stated that in the event of the Court finding neither of the wills valid, then plaintiffs Nos. 4 to 7 and 9 are legally entitled as heirs to the entire property of the deceased.
6. In paragraph 8 there is a description of the properties ' so far as the plaintiffs know at present'. There is a house valued at Rs. 7,000; another building valued at Rs. 2,500; another house valued at Rs. 20,000; ornaments, jewellery, furniture, etc., valued at Rs. 7,000; and outstandings and other movables valued at about Rs. 45,000. The plaint recites that the immovable properties of the deceased are as described above. But that as regards his movable property consisting of ornaments, outstandings, etc., the value cannot be definitely stated without seeing the account books and making accounts, and the values thereof which have been stated above are stated approximately.
7. Then in paragraph 10 it is stated that as the suit is for administration the claim is valued at Rs. 200 for the purposes of Court-fee and for that purpose Court-fee stamp of Rs. 15 is used and the claim is valued at the same figure for the purposes of jurisdiction and pleader's fees and for the purpose of the process fee.
8. Then in paragraph 11 the reliefs prayed for are set out; that it may be declared that the will of the deceased Pranjivandas Bijvallabhdas, dated February 2, 1930, is null and void and the will dated August 10, 1927, stands good, and the immoveable and moveable property, claims, debts, legacies, etc., of the deceased may be ascertained, and the property may be determined and administered, and the same may be finally ordered to be made over to the executors of the will dated August 10, 1927, for things being carried out according to the said will. Or if both the wills are held to be invalid, then the property of the deceased may be administered as if the deceased had died intestate, and may be ordered to be delivered into the charge of the abovementioned legal heirs of the deceased.
9. In the written statement it is objected that the suit is not properly speaking one for administration, but is in part at any rate a suit for obtaining possession of property, the value of which is ascertainable, and on that view the proper Court-fee has not been paid.
10. The trial Court framed a preliminary issue as to whether the proper Court-fee had been paid, and decided in the affirmative. The learned Judge dealt with the point very briefly, merely stating that the present suit is for administration and that it should be treated as a suit for account, the plaintiffs being at liberty to put their own valuation under Section 7, Clause (iv) (f), of the Court-fees Act, 1870. He refers to Khatija v. Shekh Adam Huseinally I.L.R. (1915) 39 Bom. 545 : 17 Bom. L.R. 574.
11. Mr. Coyajee, who appears for the respondents, contends that as this is held to be an administration suit coming under Section 7, Clause (iv) (f), of the Court-fees Act, an appeal must lie to the District Court and not to this Court, because under Section 8 of the Suits Valuation Act, VII of 1887, in such cases the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction are the same.
12. The question whether the appeal lies to the District Court or to this Court depends upon the amount or value of the subject-matter of the suit. In Section 26 of the Bombay Civil Courts Act, XIV of 1869, it is provided that in all suits decided by a Subordinate Judge of the First Class in the exercise of his ordinary and special jurisdiction of which the amount or value of the subject-matter exceeds five thousand rupees, the appeal from his decision shall be direct to the High Court. Section 8 of the same Act provides that except as otherwise provided, the District Court shall be the Court of Appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies.
13. The question is therefore whether the value of the subject-matter of the suit does or does not exceed five thousand rupees. That question again has to be determined according to the provisions of Section 8 of the Suits Valuation Act which is as follows :
Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paras v, vi and ix, and para, 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 .
14. As I have already stated, the lower Court has treated this as a suit coming under Clause (iv) (f) of Section 7 of the Court-fees Act, that is to say, it has been treated as a suit for accounts. In such suits the Court-fee payable is computed according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiffs have valued the reliefs sought by them at Rs. 200 and an ad valorem fee of Rs. 15 has been paid thereon. It is common ground that if this suit is properly to be treated as one coming under Section 7, Clause (iv) (f), of the Court-fees Act, then the court-fees have been correctly computed, and by reason of Section 8 of the Suits Valuation Act the subject-matter of the suit must be taken to be less than Rs. 5,000, and the appeal lies to the District Court and not here.
15. Mr. Thakor who appears for the appellant has contended that this is not to be regarded as a suit for accounts or not one corning entirely within the scope of Section 7, Clause (iv)(f), of the Court-fees Act. His argument is two-fold. He contends in the first place that the effect of the declarations asked for would be that the plaintiffs would get possession of immoveable properties admittedly exceeding Rs. 5,000 in value; also in the. case of the prayer for alternative relief if the Court were to hold that the estate is to be administered as on intestacy, immovable properties of a value exceeding Rs. 5,000 are claimed by the plaintiffs and the final decree of the Court would deliver possession to them. Accordingly, the learned counsel contends that this suit should properly be regarded as a suit coming under Clause (v) of Section 7 of the Court-fees Act and not under Clause (iv) (f) of the section. The other part of his argument is that the first declaration prayed for, namely, the declaration that the will dated February 2, 1930, is null and void, is a declaration without consequential relief, that in that respect the suit is for a declaration pure and simple, and that under Schedule II to the Court-fees Act a fixed Court-fee is payable thereon. On this ground also he seeks to take the case out of the operation of Section 7, Clause (iv)(f), the fee payable not being an ad valorem fee. He also relies in this connection on Section 17 of the same Act which provides that where a suit embraces two or more, distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable, and on the decision of the Privy Council in Rachappa Subrao Jadhav v. Shidappa Venkatrap Jadhav (1918) L.R. 46 IndAp 24 : S.C. 21 Bom. L.R. 489. In that case it was held by their Lordships that if any part of the Court-fee payable and paid was a fixed fee under Schedule II of the Act, the notional value of the property or any part of it could not displace its real value for the purposes of jurisdiction.
16. The question is by no means free from difficulty, and it is impossible to reconcile all the decisions of the various High Courts on this and analogous points. But on the whole we are satisfied that neither of Mr. Thakor's arguments should be accepted. This cannot be regarded as a suit for possession of property, the value of which can at the present time be ascertained. As Mr. Coyajee says, the debts that have to be paid, the claims that have to be met and the legacies may be considerable and it is impossible for the plaintiffs to say that they will be entitled to any specific properties or even that they will be entitled to any properties exceeding in value Rs. 5,000. We are not prepared to say that this case can really be distinguished from such cases as Khatija v. Shek Adam Husenally and Bai Amba v. Pranjivandas Dullabhram I.L.R. (1894) 19 Bom. 198, where suits claiming reliefs similar to the reliefs claimed here were held to be administration suits coming under Section 7, Clause (iv) (f), of the Court-fees Act, in spite of the fact that the final decree to be passed might award possession of immoveable properties. Khatija v. Shekh Adam Husenally has been followed by other High Courts, e.g., by the Calcutta High Court in Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R. (1916) Cal. 890.
17. The reply to the other part of Mr. Thakor's argument seems to us to be that Section 17 of the Court-fees Act does not apply, because this suit does not embrace two or more distinct subjects. As in Bai Amba v. Pranjivandas Dullabhram, the other reliefs claimed by the plaintiffs are all incidental to the chief item of relief which is the administration of the estate. Moreover it cannot be said, in our opinion, that the plaintiffs are asking for a bare declaration without consequential relief. The two declarations sought are intimately connected and the reliefs consequential thereon are that accounts should be taken, that inquiries should be made and that the estate should be administered and finally the residue of the estate 'should be handed over. That being so, the Privy Council case of Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav has no application, because, as explained in Shivsangappa v. Muchkhandeppa : AIR1932Bom160 , that was in effect a suit for a bare declaration without consequential relief. It is only in suits of that nature that the dictum of their Lordships applies, that it is the real value of the property and not the notional value that determines the valuation for jurisdiction. I may note also that it is clear from their Lordships' judgment that the suit before them was one embracing two or more distinct subjects so that it was capable of being brought under Section 17 of the Court-fees Act. We hold that this must be regarded as a suit for accounts coming under Section 7 (iv) (f) of the Court-fees Act, and that in view of the valuation placed by the plaintiffs on the relief claimed by them and the provisions of Section 8 of the Suits Valuation Act, the subject-matter of the suit is less than Rs. 5,000 in value and the appeal lies to the District Judge.
18. The memorandum of appeal, therefore, must be returned for presentation to the District Court. Cross-objections also to be returned. In view of the difficulty of the questions involved, and the fact that the appellant was genuinely in doubt as to the proper forum of appeal, we make no order as to costs.