1. We are obliged to Mr. A.G. Desai for his assistance in this appeal. It arises out of a suit which is described by the learned Subordinate Judge as a suit for the partition and separate possession of joint family property, consisting of lands, houses and movables.
2. The question before us is as to the Court which is properly vested with jurisdiction to try this suit. That depends upon the value of the subject-matter of the suit. The market-value of the share claimed by the plaintiff has been ascertained to be Rs. 5,600 and that sum is not now objected to on behalf of the defendants.
3. The First Class Subordinate Judge has returned the plaint for presentation to the 2nd Class Subordinate Judge, being of opinion that the suit falls within the jurisdiction of this latter official. Mr. Dandekar on behalf of the appellant urges that that is wrong, and that the suit properly belongs to the jurisdiction of the 1st Class Subordinate Judge himself.
4. The question really turns upon the section of the Court Fees Act which governs this particular class of suits. The lower Court assigned it to Sub-clause (b) of paragraph (IV) of Section 7, which refers to 'a suit to enforce the right to share in any property on the ground that it is joint family property.' Upon the best consideration that I can give to the point, it appears to me, that the suit is not properly referable to this clause. Paragraph (IV) comprises six different classes of suits, and omitting the momentarily ambiguous class under Clause (b), it is to be observed that all the suits in the paragraph are claims for a relief which is not properly assessable in money Prima facie, therefore, no suit to obtain possession of land, which has an easily ascertained market-value, can logically be brought under paragraph (IV); in fact, so to treat a suit referring to land would, it seems to me, throw the whole paragraph into confusion. Next, Clause (b), it should be observed, refers to a suit to enforce the right to 'share' in any property, not the right to 'a share' in property. The words themselves, therefore, suggest that the suit is for the enforcement of what one may call an abstract claim or right, and that would bring the Clause (b) into proper logical neighbourhood with the other clauses of the paragraph. I am of opinion, therefore, that this suit more properly falls under paragraph (V) of Section 7, as being a suit for the possession of land. This view receives some support from the provisions of the Suits Valuation Act, because if the suit is referred to paragraph 4 (6), it will apparently be governed by Section 8 of that Act, and will there again be bracketed with other suits of a totally different character, suits from which it appears to have been the object of the legislature to discriminate a suit for the possession of land. Mr. Desai has called our attention to the decision of this Bench in Motibai v. Haridas 22 B.315 but I think that that case can be distinguished from the suit before us, for there, as I read the report, it was admitted that the value of the subject-matter of the plaintiff's suit was Rs. 250 and the only point really in dispute was whether that value or the total value of the entire property to be divided should form the test for the purposes of jurisdiction. If that is so, then the observations of Mr. Justice Parsons, which seem to be in conflict with the opinion which I have above expressed, were not necessary for the decision. For the reasons stated I am of opinion that the decree of the Court below must be set aside and the suit remanded for trial to the 1st Class Subordinate Judge.
5. costs in the cause.
6. I am of the same opinion. A suit to obtain by means of partition a slice of land, the approximate value of which can easily be stated in terms of money, appears to me to be plainly a suit for the possession of land. Such a suit cannot, in my opinion, be brought within the meaning of Section 7, IV, (b) of the Court Fees Act (VII of 1870), which appears as clearly to be intended merely for suits to enforce what my learned brother has properly called an abstract right to share in any joint property.' That being the case and the suit being a suit for possession of land, most of the difficulties which would otherwise have beset our decision disappear. And I have no reason to doubt, notwithstanding some apparent conflict in what was described as obiter dicta in at least one previous case, that once this point has been raised and all that has been implied in it definitely stated, the decision which we have came to is the right decision and correctly interprets the statute.