1. delivered a judgment on merits, setting aside the award on technical grounds and re-opening the matter.
2. I agree. At the hearing of this appeal Mr. Jathar for the respondents raised a preliminary point as to whether the appellants' valuation of the subject-matter of the appeal at Rs. 200 was proper, the plaintiff having valued his claim in the suit at Rs. 5,450. He contended that the appellants should pay court-fee on Rs. 5,450 under Section 7 (iv) of the Court-fees Act, and referred to the decision in Srinivasacharlu v. Perindevamma I.L.R(1915) Mad. 725 and Pochalal v. Umedram : AIR1928Bom476 Section 7 (iv) (f) relates to suits for accounts and is to the effect that the amount of court-fee payable in such suits is ' according to the amount at which the relief sought is valued in the plaint or memorandum of appeal'. Prima facie, therefore, the appellant would be entitled to value the relief sought by him at his own figure. The ruling in Srinivasacharlu v. Perindevamma follows the decision in Samiya Mavali v. Minammal I.L.R (1899) Mad. 490, the subject-matter of which was a suit for having a sale declared void under Section 7 (iv) (c).. 'No reasons were given for the decisions in either of the two Madras cases. In Chuni Lal v. Sheo Charan Lal, Lalman I.L.R(1925) All. 756 it was held that the appellant was at liberty to value the relief sought by him at his own figure. This is also the effect of the decision in Faizullah Khan v. Mauladad Khan : (1929)31BOMLR841 , p.c., wherein, in the course of the argument before the Judicial Committee of the Privy Council, Lord Tomlin, one of the members of the Committee, observed (p. 842) :-
In Section 7 the amount of the fee is to be computed, in suits for accounts, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. If, therefore, the appellant values the relief in the memorandum of appeal and pays a fee thereon, that is the amount of fee properly payable. Of course, if the appellant recovers more, he pays the extra fee under Section 11 of the Act. But you cannot complain that the amount valued in the memorandum of appeal is not the proper amount. In suits for accounts, it is impossible to say at the outset what exact amount the plaintiff will recover. The Legislature, therefore, leaves it open to him to estimate the amount. That is the scheme of the Act.
This view was in consonance with the judgment of the Judicial Committee which was delivered by Lord Shaw. This decision has been followed in C. K. Ummar v. C. K. Ali Ummar I.L.R (1931) Ran. 165, and Venkatanandam, In re I.L.R(1932) Mad. 705. The subject-matter of the latter decision was a suit for partnership accounts and though the judgment did not specifically mention the ruling in Srinivasacharlu v. Perindevamma, Ramesan J. said (p. 710): 'In view of the decision of the Privy Council no purpose is served by referring to the earlier decisions.' We are of opinion that the decision in Pochalal v. Umedram : AIR1928Bom476 must be held as overruled by Faizullah Khan v. Mauladad Khan : (1929)31BOMLR841 , P.C. and that the appellant cannot be held to have improperly or inadequately valued the relief sought by him in appeal.
3. [His Lordship then went into the merits of the case and concluded :] I, therefore, agree that the learned Subordinate Judge's decree should be set aside and that a Commissioner should be appointed to take account of Kanji's estate on the footing that it amounted to Rs. 47,266 at his death and to effect a partition thereof. The plaintiff is also entitled to a declaration that the panch decision and the farkhat referred to in the plaint are not binding on him.