R.N. Misra, J.
1. Defendant No. 1 in a suit for partition has carried this appeal against the affirming judgment and decree of the learned Subordinate Judge.
2. Plaintiff filed the suit on 17-12-1973 in the court of the Munsif at Anandapur alleging that Abhimanyu Sahu died leaving behind him four sons, namely, Bikala, Gananath (defendant No. 2), Raghu and Netrananda (plaintiff). Bikala is dead and his son Babaji is defendant No. 1. Raghu died leaving his widow (defendant No. 3) and two daughters, namely, Hadiani and Paluni. plaintiff demanded his share in the joint family properties and as defendants have not partitioned the same in spite of demand, he instituted the suit asking for one-fourth share in the property. In the plaint he valued the entire property at Rs. 12,000/- and his one-fourth share at Rs. 3,150/- though on the total valuation of Rs. 12,000/- the one-fourth share should have been calculated at Rs. 3,000/-net (see para 8 of the plaint).
3. Paras. 4 and 5 of the written statement of the defendants challenge the valuation and maintain that the suit was beyond the pecuniary jurisdiction of the court. No issue on the question of jurisdiction was, however, framed. Defendant No. 1 lost in both the courts below. When the second appeal came for hearing before a learned single Judge the question of want of pecuniary jurisdiction of the trial court to entertain the suit was agitated. The learned single Judge observed :--
'......Mr. Sahu contends that thevaluation of this suit for the purpose of jurisdiction is Rs. 35,000/- and odd, which is the valuation of the entire suit property, and not the valuation of the share claimed by the plaintiff. But Mr. Rao, the learned counsel for the respondents, submits that the valuation of the suit for the purpose of jurisdiction would be the valuation of the share claimed by the plaintiff and not the value of the entire property for which the partition is sought. On the above question divergent views have been expressed in the decisions of this Court reported in (1962) 28 Cut LT 433 (Chadhai Behera v. Parbati); (1946) 2 Cut WR 949 : (AIR 1977 Orissa 161), (Smt. Nakhya-tramali Debi v. Chandrasekhar Pattnaik) and the decision reported in (1976) 42 Cut LT 1247 : (AIR 1977 Orissa 85), Smt. Durga Deo v. Smt. Pirobati Dei). There is also divergence of opinion on this point in the decisions of some other High Courts. The decision reported in AIR 1925 Cal 320 (Rajani Kanta Bag v. Raja Bala Dasi) supports the contention of Mr. Sahu for the appellant, whereas the decisions reported in AIR 1953 Pat 342 (Bhairab Chandra Rao v. Sat Narain Sarkar); AIR 1947 Mad 273, (Kalander v. Kunhipakki) and AIR 1962 Bom 4 (Sab-astian Antonio Texeira v. Rodolf Min-guel Texeira) support the view contended by Mr. Rao for the respondents. Certain other important questions are also involved in this case. I, therefore, deem it fit and proper to refer this second appeal to a Division Bench of this Court for its disposal in accordance with law.'
That is how the Second Appeal has been placed before us.
4. Mr. Rao for the respondents maintained that the question of want of pecuniary jurisdiction could not for the first time be raised in the second appeal. Section 21 of the Civil P. C. barred objection as to the place of suing being raised at a later stage in the suit or in the appellate court. Until insertion of Sub-section (2) of Section 21 by the Amending Act of 1976, there was no provision regarding a similar power with reference to pecuniary limits of court's jurisdiction. There is no dispute that the amending provision would not apply to the present appeal. There is a similar provision in the Suits Valuation Act in Section 11 thereof which provides :--
'(1) Notwithstanding anything in Section 578 of the Civil P. C. 14 of 1882, an objection that by reason of the overvaluation or under-valuation of a suit or appeal a Court of first instance or Lower Appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless-
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the Lower Appellate Court in the memorandum of appeal to that Court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was overvalued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.'
In the instant case, as we have already noticed, objection was taken in the court of first instance in the written statement. An appropriate issue was, however, not framed by the court and the question does not appear to have been examined. In the circumstances, we are inclined to agree with counsel for the appellant that the appellant cannot be precluded from raising a contention at this stage, particularly when, the argument is based upon the facts disclosed by the plaint itself.
5. There are three decisions of this Court relevant to the point. The first one is the case of Chadhai Behera v. Parbati, (1962) 28 Cut LT 433, whereMisra, J. as the learned Judge then was approved the dictum laid down by a Division Bench of the Patna High Court in the case of Bhairab Chandra Rai v. Sat Narain Sarkar, AIR 1953 Pat 342 and observed :--
'......Law is well settled that wherethere is dispute over the plaintiff's share and the plaintiff seeks adjudication of his title and for partition after such adjudication, it is the value of the plaintiff's share which will determine the jurisdiction of the Court and not the value of the entire property......'
The second is the case of Mst. Dura Deo v. Smt. Pirobati Dei, (1976) 42 Cut LT 1247 : (AIR 1977 Orissa 85), where one of us (Mohanti, J.) has relied upon the aforesaid decision of this Court and observed (at p. 86 of AIR) :--
'In a simple suit for partition it is the value of the whole property which determines the jurisdiction of the Court and not the value of the plaintiff's share only. In such a suit, the Court has to deal with the entire property. It may on the application of the defendants effect partition of their shares. Therefore the valuation of the suit for the purpose of the jurisdiction cannot be the value of the plaintiff's share only. I am fortified in this view by a Bench decision of the Patna High Court reported in AIR 1923 Pat 342, (Ranjit Sahi v. Maulavi Quasim). Their Lordships held that there is a distinction between suits for partition pure and simple where the plaintiff is in joint possession of his share and there is no dispute as to the title or share, and suits where the plaintiff seeks for an adjudication of his title or extent of share and for partition after such adjudication. It was clearly laid down that in the latter case it is the value of the plaintiff's share which would determine the jurisdiction of the Court and not the value of the entire property. But if there is no dispute regarding the title of the plaintiff and the only question before the Court is as regards partition, the value of the whole property sought to be partitioned must be the value for the purpose of jurisdiction. In the case of Rajani Kante Beg v. Raja Bala Dasi, AIR 1925 Cal 320, it was also held by a Division Bench that a suit for partition is triable by the Court which is competent to try the suit valued at the entire value of the property and not at the value of the plaintiff's share.'
The third and the last decision of this Court on the point is the case of Smt. Nakhyatramali Debi v. Chandrasekhar Pattnaik, AIR 1977 Orissa 161. The learned Judge in para 6 of the judgment has observed (at p. 164) :
'.........In a suit for simple partition,where the plaintiff does not allege dispossession but there is dispute as to the quantum of share, the value for the purpose of jurisdiction would be the value of the share claimed by the plaintiff and not the value of the whole property of which the partition is sought (See Dukhi Singh v. Harihar Shah, AIR 1921 Pat 78, Ranjit Sahi v. Maulavi Quasim, AIR 1923 Pat 342 and Chadhai Behera v. Parbati, (1962) 28 Cut LT 433). There is no dispute in the present case that the value of the plaintiff's share is Rs. 1,250/- and, as such, the appeal to the Additional District Judge was maintainable.'
The learned Judge while indicating the facts had stated:
'It is clear from the averments of the plaint that the plaintiff's quantum of share was in controversy and she wanted adjudication of the same..........'
There is thus no divergence of opinion on the point in issue in this Court.
6. In the Patna decision (AIR 1953 Pat 342) the placitum is misleading. The facts of the case clearly indicate that the plaintiffs had asked for a declaration of their title to the share claimed and for partition and separate possession of their shares in the properties as there was dispute over their right. The aforesaid Patna decision relied upon the decision of the Privy Council in the case of Shevantibai v. Janardhan Raghunath, AIR 1944 PC 65. From the report of the decision of the Judicial Committee it is clear that the assignee of the purchaser from a member of a joint family of a share in the joint family property sued for partition obviously asking for title in the purchase. The Privy Council, therefore, rightly indicated that the valuation of the share was the valuation of the suit.
7. Two other decisions have been relied upon for the contrary proposition. The first is the Bench decision of the Madras High Court in the case of Kalan-der v. Kunhipakki, AIR 1947 Mad 273. The learned Judges referred to the Privy Council decision which we have already noticed and came to hold relying on Section 4 of the Suits Valuation Act :
'It is clear from this section that for purposes of jurisdiction it is the plaintiff's interest in the property that must be valued. The plaintiff's suit was for ' partition of their half share in the suit properties. In other words, they asked that their undivided half share in the properties should be converted into a divided half share. This relief could not be valued; and court-fee had to be calculated according to the provisions of Article 17 of Schedule II, Court-fees Act. The matter in dispute in the suit was however whether the plaintiffs had a half share in the plaint schedule properties or not. According to their claim, they had an undivided half share in the suit properties, which they sought to have divided, and so it seems clear to us that the suit related only to a half share of the plaint schedule properties.''
From what has been said above, it is clear that the plaintiffs were also asking for declaration of their half share. If that be so, the aforesaid ratio is not divergent to the principle laid down in this Court.
8. The last case which has been placed before us for consideration is the decision of a learned single Judge of the Bombay High Court in the case of Sabastian Antonio Texeira v. Rodolf Minguel Texeira, AIR 1962 Bom 4. After referring (o certain authorities, the learned Judge concluded by saying (at p. 7) :
'.........Thus, there is no doubt that ina suit for partition it is the value of the share which the plaintiff claims in the joint family property or the property of which partition is sought, which determines the pecuniary jurisdiction of the Court and not the value of the entire property. If, therefore, this suit is held to be a suit for partition, then this Court will have no jurisdiction to entertain it, because, as pointed out in the earlier part of the judgment, the value of the plaintiff's share does not exceed Rs. 10,000/-. In other words, it is very much legs than what is necessary for this Court to have the pecuniary jurisdiction.'
The parties were Christians and on a reading of the facts there appears to have been disputes as to the share. In view of the settled position of law in this Court as also in the Patna and the Calcutta High Courts, we are not inclined to take a different view. All the three single Judge decisions of this Court correctly stated the legal position.
9. The present suit was one for simple partition and, therefore, the valuation of the entire property was the valuation of the suit for the purpose of jurisdiction. In the plaint, the valuation was put at Rs. 12,000/-. On the said valuation, the trial. Court had no pecuniary jurisdiction. Therefore, the entertainment and disposal of the suit by the trial Court is contrary to law.
10. The appeal is allowed. The decision of the trial Court as affirmed in appeal is vacated and the learned Munsif is directed to return the plaint to the plaintiff for presentation in proper court in accordance with law. Parties are directed to bear their respective costs throughout.
P.K. Mohanti, J.
11. I agree.