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 21 Bom. L.R. 1148 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)13BOMLR158 . 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. Mr. Coyajee for the appellants has argued that the plaintiffs should not be permitted to raise the present preliminary objection, since they themselves showed Rs. 15,000 as the valuation for jurisdiction in their plaint, and since on that representation made in the plaint they invited the Civil 'Judge (Senior Division) to try this suit as a special jurisdiction suit. In support of his contention that a party should not be permitted to approbate and reprobate even as regards the valuation which ultimately determines the jurisdiction of the Appeal Court Mr. Coyajee has relied upon two decisions of this Court.
4. In Balkrishna v. Jankibai (1919) 22 Bom. L.R. 289 a suit had been filed by the plaintiff for a declaration and injunction in which he had valued his, claim for the purpose of court-fees at Rs. 135 and for the purpose of jurisdiction at Rs. 16,000. The property in suit was situated at Malvan, and in ordinary course if the valuation for jurisdiction had been properly made under Section 7(iv)(c) of the Court-fees Act read with Section 8 of the Suits Valuation Act, the suit would have had to be filed in the Second Class Subordinate Judge's Court at Malvan. It was, however, filed in the Court of the First Class Subordinate Judge at Ratnagiri under his special jurisdiction. Another suit had been filed as a companion suit in the same Court between the same parties. The two suits were tried by the learned First Class Subordinate Judge in his special jurisdiction. Against the decree passed by the trial Court in his suit, the plaintiff himself preferred an appeal to this Court. Other appeals had been filed against the decree passed in the companion suit. At the hearing of the said appeals the plaintiff-appellant himself urged that his appeal be returned to him for presentation to the proper Court on the ground that the appeal lay to the District Court and. not to the High Court. His request was rejected and this Court proceeded to deal with all the appeals on the merits. Shah J. pointed out that there was no doubt that it was open to the plaintiff to put his own valuation on the claim for the purpose of court-fees and that it was also clear that under Section 8 of the Suits Valuation Act the value for court-fees must determine the value for the purpose of jurisdiction. Reference was made to the Privy Council decision in Sunderabai v. The Collector of Belgaum 21 Bom. L.R. 1148 and to certain other decision bearing on the point. 'If the matter rested there,' observed Shah J., 'it would follow that the appeal would lie to the District Court: and we would be bound to give effect to the contention that the appeal lies to the District Court, even though that conclusion would involve a further delay for no useful purpose in the disposal of these appeals.' Shah J. then proceeded to consider the special circumstances in that case. He pointed out that the plea raised by the plaintiff for the first time in the appellate Court meant that the appellate Court was not entitled to entertain the appeal and that the trial Court itself had no jurisdiction to entertain the suit. As I have mentioned above since the property was situated at Malvan, unless the valuation of the suit for jurisdiction was properly made at an amount over Rs. 5,000 the First Class Subordinate Judge at Ratnagiri would not have been competent to entertain the suit, and the proper forum for the trial of the suit in which the valuation for jurisdiction was less than five thousand rupees would have been the Court of the Second Class Subordinate Judge at Malvan. Shah J. also referred to the fact that along with this appeal other appeals were pending for hearing and that except for the plaintiff no other party to the appeals made any contention as to jurisdiction. In those circumstances it was held that the plaintiff could not be allowed to use either of the two inconsistent valuations set out by him in his plaint in different Courts according to his convenience, and that it would be desirable to hold that he had valued his claim for court-fees and jurisdiction at Rs. 10,000 or at some figure exceeding Rs. 5,000. It was realised that on that view the plaint did not bear adequate court-fee stamp; but Shah J. held that this Court was not concerned with that question. Having thus held that the plaintiff should not be permitted to make the contention that the appeal lay to the District Court because of the very special circumstances of the case, Shah J. proceeded to observe that he had reached that conclusion on the special facts of the case and that he desired to make it clear that he did not mean to depart in the slightest degree from the recognised rule to which he was bound to give effect that the plaintiff had the right to value his claim for the purpose of court-fees in such a suit and that the value for the purpose of jurisdiction must be the same. Hayward J., who concurred with the conclusions of Shah J. on this point, emphasised the fact that the question which was raised before them really affected as much the jurisdiction of this Court to entertain the appeal as the jurisdiction of the learned trial Judge to entertain the suit. Having regard to the fact that the appellant was, in effect, raising a plea as to the jurisdiction of the learned trial Judge himself, I may point out that under Section 11 of the Suits Valuation Act such a plea could not have been raised by him in appeal since it had not been raised at the earlier stage as required by the said section. The conduct of the plaintiff appeared to the Court to be highly objectionable and in the special circumstances the Court was inclined to treat the valuation made by him for the purpose of jurisdiction as the valuation for court-fees. It is not, however, clear from the report whether the plaintiff was directed to pay additional court-fees on his memo of appeal, and if yes, on what amount.
5. 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.
6. Mr. Coyajee has also relied upon a judgment of Davis C.J. in Rijhumal v. Tejumal  A.I.R. Sin24 where a similar question having arisen it was held that it may not be unreasonable to treat the value set out for the purpose of jurisdiction as the value for court-fees since Section 8 of the Suits Valuation Act only laid down that the valuation for both the purposes shall be the same. Davis C.J. distinguished the decision of this Court in Govinda v. Hanmaya : AIR1921Bom65 and held that there was nothing to prevent the Court from taking the view that if the plaintiff puts two different valuations, one for the purpose of court-fees and the other for the purpose of jurisdiction, the latter valuation should be regarded as the correct one and Section 8 may then be complied with by holding that the plaintiff must pay court-fees on the latter valuation. It seems to us that this view is inconsistent with the provisions of Section 8 of the Suits Valuation Act. The value for court-fees is determinable under Section 7(iv)(c) of the Court-fees Act; once the said value is determined on the plaintiff exercising his option in that behalf, Section 8 of the Suits Valuation Act provides that the value for jurisdiction shall in cases falling under the said section be the same as that for court-fees. In our opinion under Section 8 the determination of the value for court-fees decides the value for jurisdiction and not vice versa.
7. In Govinda v. Hamnaya, this Court had definitely expressed the opinion that the plaintiff was entitled under Section 7(iv)(d) of the Court-fees Act to value his claim and that it was wholly unnecessary for him to fix any other value for the purpose of jurisdiction under Section 8 of the Suits Valuation Act. In the suit from which the said appeal had come before this Court the plaintiff had valued the claim for court-fees at Rs. 10, but had added another valuation of Rs. 500 for purposes of jurisdiction. Macleod C.J. and Fawcett J. held that since the plaintiff had exercised his option of making the valuation for the purpose of court-fees, it was wholly unnecessary for him to make any other valuation, since under Section 8 of the Suits Valuation Act the value for court-fees having been determined by the plaintiff the value for the purpose of jurisdiction is automatically determined.
8. We, therefore, think that in this case we would not be justified in following the course adopted by this Court in Balkrishna v. Jankibai and Gajramji Jasramji v. Somnath Bhudardas. It is quite true that in this case the plaintiffs had valued, their claims for court-fees and for jurisdiction differently, and that all parties and the learned Judge treated the suit as one falling under the special jurisdiction of the First Class Subordinate Judge. We are, however, not inclined to accept the contention of Mr. Coyajee that in every case where the plaintiff makes the mistake of setting out two different valuations in a suit of this kind his conduct should be deemed to disentitle him from disputing the correctness of his own valuation. In this connection, it may be pointed out that a similar contention was raised before Broomfield and Indarnarayen JJ. on facts very similar to the facts of this case and was rejected in Maharaj Bhagwatdasji v. Soni Haribhai Gopaldas (1939) F.A. No. 244 of 1937, decided August 23, 1937 (Unrep.) by Broomfield and Indernarayan JJ., on. In his judgment Broomfield J. took the view that the admissions of the plaintiff and the statements made by him as to the valuation for the purpose of jurisdiction must be deemed to have been based on a misapprehension of law and cannot be regarded as binding on him, and he pointed out that the consent of parties cannot give the Court jurisdiction. 'If the suit falls under Section 7(iv)(c), it is obvious that the valuation for the purpose of the court-fees is entirely within the discretion of the plaintiff. It is true that he has to exercise his option reasonably, but once the plaintiff chooses his valuation for the purpose of court-fees, under Section 8 of the Suits Valuation Act the claim for jurisdiction is automatically fixed. On that view of the matter Mr. Justice Broomfield upheld the preliminary objection raised before him in similar circumstances.
9. As I have mentioned above, in the two Bombay decisions on which Mr. Coyajee has relied there were certain special circumstances; in fact, in the first case the appeal had been preferred to this Court by the plaintiff himself, and the question of jurisdiction raised by the appellant affected not only the jurisdiction of the appellate Court but that of the trial Court itself; besides, as I have already mentioned, such an objection could not have been raised for the first time in appeal, having regard to the provisions of Section 11 of the Suits 'Valuation Act. With all respect, however, it seems to us somewhat difficult to see how it can be said that a party is estopped from raising such a contention, when the point on which the contention is based plainly arises as a result of certain statutory provisions themselves. The plaintiff's allegation as to the valuation for the purpose of jurisdiction is the result of misapprehension of the true legal position; in fact it is wholly unnecessary for the plaintiff to make any such allegation in such suits. Besides, it is obvious that if the defendant had been more diligent or if the Court had scrutinised the plaint more carefully it should not have been difficult at all to discover that there was a discrepancy in the value of the claims set out in the plaint and the plaintiff could easily have been called upon to set right the discrepancy and make a proper claim. It may be that in certain special cases as a result of very unusual circumstances the Court may feel justified in holding that the plaintiff should not be permitted to raise such a contention in appeal. Otherwise, in such cases, where the plaintiff has, through mistake, oversight or carelessness set out two inconsistent valuations, and the said inconsistency is not detected by any of the parties and not ordered to be rectified by the trial Court, it seems to us very doubtful if the plaintiff could properly be held to be estopped from contending even in appeal that the valuation for the purpose of jurisdiction is wrong and that the appeal presented to this Court on the basis of that valuation is incompetent. In such cases the essential elements of estoppel may not at all be present. After all the question raised affects the jurisdiction of this Court to entertain the present appeal, and if this Court has no jurisdiction to entertain it, even the consent of parties cannot confer upon this Court such jurisdiction. Besides, if the plaintiffs' preliminary objection is sought to be defeated on the technical ground of estoppel, it is, we think, open to defendant No. 3 in this case to contend that he is not affected by the plea of estoppel, and that since he is also raising the same preliminary objection, it has to be decided on the merits, apart from airy considerations of estoppel or approbate and reprobate. In this case there is obviously no doubt about the jurisdiction of the learned trial Judge since the property in suit is situated within the city of Ahmednagar and the learned First Class Subordinate Judge at Ahmednagar would have been entitled to entertain the suit even with the smaller value for jurisdiction, though under Section 15 of the Code of Civil Procedure such suits would normally be sent for trial to the Court of the lowest grade.
10. The emphasis on the description of the suit as a special jurisdiction suit is not, in our opinion, of much consequence having regard to the amended provisions of Section 26 of the Bombay Civil Courts Act. That section now provides that in all suits decided by a Subordinate Judge 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. The words 'of the first class in the exercise of his ordinary and special original jurisdiction' which were to be found in the earlier section have now been deleted. For the purpose of deciding whether an appeal lies to this Court or not, under the present section the only question which has to be determined is what is the value or the amount of the subject-matter of the suit. In the light of the provisions of Section 7(iv)(c) of the Court-fees Act and Section 8 of the Suits Valuation Act the words 'the amount or value of the subject-matter' must, we think, denote the claim for jurisdiction, and, as I have said above, that claim is statutorily determined as soon as the claim for court-fees is fixed by the plaintiffs.
11. That being our view, we think the preliminary objection must be unheld. It is true that this decision necessitates the return of the appeal to the appellants for presentation to the proper Court; but we are unable to hold that for this result the plaintiffs alone are to be blamed. The defendants themselves could have raised the contention in the trial Court that the values of the claims set out in the plaint were inconsistent and the Court itself could have discovered the inconsistency if the plaint had been more judiciously scrutinised before the trial commenced. The result is that the appeal, as presented in this Court, is incompetent and must, therefore, be returned to the appellants for presentation to the proper Court, No order as to costs.