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Waliullah Vs. Wajih-ud-din, - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1902)ILR24All381
AppellantWaliullah
RespondentWajih-ud-din,; Kudrat-ul-lah and ors.
Excerpt:
act no. xii of 1887 (bengal civil courts act), section 24 - act no. i of 1887 (general clauses act), section 3, clause (13)--valuation of suit--appeal--suit for partition. - .....i of 1887, section 3, clause (13), value with reference to a suit means the amount or value of the subject-matter of the suit. now the question is, what was the value of the subject-matter of the present suit? the suit was one for partition of what the plaintiff claimed to be his share in the property of a deceased muhammadan. he valued his share at rs. 2,178. the value of the whole property exceeded rs. 5,000. it is contended on behalf of the appellant that the value of the whole property must be deemed to be the value of the subject-matter of the suit. we do not think so. what the plaintiff claimed was that his own share should be partitioned, and that he should be put into separate possession of it no doubt he stated in the plaint that the partition should be made by the preparation.....
Judgment:

Banerji and Aikman, JJ.

1. A preliminary objection has been taken to the hearing of this appeal on behalf of the respondent to the effect that an appeal from the decree of the Court below lay, not to this Court, but to the Court of the District Judge. In our opinion this objection must prevail. Under Section 21 of Act No. XII of 1887 an appeal from the decree of a Subordinate Judge lies to the High Court, where the value of the suit exceeds Rs. 5,000. Where it does not exceed that amount the appeal lies to the District Judge. Under the General Clauses Act No. I of 1887, Section 3, Clause (13), value with reference to a suit means the amount or value of the subject-matter of the suit. Now the question is, what was the value of the subject-matter of the present suit? The suit was one for partition of what the plaintiff claimed to be his share in the property of a deceased Muhammadan. He valued his share at Rs. 2,178. The value of the whole property exceeded Rs. 5,000. It is contended on behalf of the appellant that the value of the whole property must be deemed to be the value of the subject-matter of the suit. We do not think so. What the plaintiff claimed was that his own share should be partitioned, and that he should be put into separate possession of it No doubt he stated in the plaint that the partition should be made by the preparation of lots and separation of the shares of each party. The separation of the shares of parties other than the plaintiff himself was only ancillary to the partition of the plaintiff's share. The claim as framed does not necessarily mean partition inter se among the defendants. That was a matter with which the plaintiff had no concern. This suit cannot, therefore, be regarded as a suit in which the plaintiff asked the Court to make a partition, not only of the share of the plaintiff himself, but of the shares of the defendants inter se. In that view it is not necessary for us to decide whether, if the suit had been of the description last mentioned, the value of the whole property would be the value of the subject-matter of the suit. In the present instance we hold that the subject-matter of the suit is the plaintiff's share, and that alone. The value of that share being below Rs. 5,000 no appeal lay to this Court. We allow the preliminary objection, and direct that the memorandum of appeal be returned for presentation to the proper Court. The respondents will get their costs incurred in this Court.


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