1. Although this petition is only a petition to condone the delay in filing the appeal, the real question it raises is the maintainability of the appeal in this Court. The appellant is the first defendant in a suit for partition brought by the first respondenl in the Subordinate Judge's Court. In the plaint the first respondent valued the entire suit property at Rs. 24,810/- and her one-third share at Rs. 8,270/-. By the original preliminary decree and its amendment the plaintiff and the second defendant were awarded 1/3 share each in the property. In the final decree which followed the total property was valued at Rs. 64,800/- and the plaintiff was allotted a share valued at Rs. 19,185/-, the first defendant a share valued at Rs. 25,393/- and the second defendant a share valued at Rs. 20,222.80. The first defendant was directed to pay Rupees 2,415.26 to the plaintiff and Rs. 1,377.47 to the second defendant as owelty.
The memorandum of appeal carries a court-fee of Rs. 100/- as did the plaint in the Court below and it states erroneously, but in an obvious attempt to justify the institution in this Court, that the 'suit valuation is Rs. 22,790/-'. It is not apparent what this amount represents, though we were told that the appeal was brought in this Court on the basis of the value of the share allotted to the first defendant. The question is whether the appellant is justified in so doing.
2. Tbe plaintiff paid a court-fee of Rs. 100/- on the plaint under Section 37 (2) (ii) of the Court-fees and Suits Valuation Act ('Court-fees Act') on the allegation that the value of her share was less than Rs. 10,000/-, to wit Rs. 8.270/. In terms of Section 53 (2) the jurisdiction was determined by the market value and the suit was brought in the Subordinate Judge's Court. This would have been the result whether the basis was the market value of the plaintiff's share or of the entire suit property in view of Section 11, Civil Courts Act. But in a suit for partition by a person in joint possession the valuation for the purposes of jurisdiction is the market value of the plaintiffs share : Mallayya v. Jagannadhamma, (1941) 2 Mad LJ 567 : (AIR 1942 Mad 103 (1)), where following certain earlier cases it was held that as the plaintiff's share was not less than Rs. 10,000/- the suit should be instituted in the Subordinate Judge's Court and not the Munsiff's Court. The same view was taken in Venkataratnamma v. Narasimha Rao, (1944) 2 Mad, LJ 309 : (AIR 1945 Mad 56); Kalander v. Kunhipokki, (1947) 1 Mad LJ 112 : (AIR 1947 Mad 273) and K. Natesa Ayyar v. Kothandarama Ayyar, (1951) 2 Mad LJ 92 : (AIR 1951 Mad 1002) where (1941) 2 Mad LJ 567 : (AIR 1942 Mad 103 (1)) was followed. A learned Judge of this Court held in Gopalan Nambiar v. Balakrishnan Nambiar, 1972 Ker LT 1087, that in a suit for partition the relief sought by the plaintiff relates to his share of the properties, that the jurisdictional value should be the value of that share and that it was not possible to hold that the relief could not be estimated at a money value.
3. It is the plaintiff who seeks relief and pays court-fee and determines the jurisdiction of the Court, in the present case the value of the plaintiff's share exceeded Rupees 5,000/- and the suit was brought in the Subordinate Judge's Court but if the value had been less, the suit would have been laid in the Munsiff's Court in accordance with Section 11 (2) of the Civil Courts Act which to far as material provides that :
'The jurisdiction of a Munsiff's Court extends to all like suits (the reference is to original suits mentioned in Sub-section (1)) and proceedings ........ of which the amount orvalue of the subject matter does not exceed five thousand rupees.'
Neither the appellant nor the other defendant bad any dispute about the plaintiff's valuation which was obviously accepted by the Court.
4. On the question of the appellate forum, it turns upon the provisions of Section 13 (1), Civil Courts Act. The Sub-section reads :
'(1) Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject matter of the suit does not exceed ten thousand rupees from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court.' 5. The plaintiff valued his share at Rupees 8,270/- and if it represents the 'value of the subject matter of the suit' it must follow that the appeal would lie to the District Court and not to this Court. In Shevantibai v. Janardhan Raghunath, AIR 1944 PC 65, the question arose whether the appellant who was the plaintiff in a suit for partition was entitled to a certificate to appeal to the Privy Council under Section 110, Civil P. C. The value of the interest claimed by her was well under Rs. 10,000/- but the whole of the joint family property exceeded that amount in value. The High Court refused the certificate in the view that the share of the appellant in the property of which she sought partition being less in value than Rupees 10,000/-, the subject matter of the appeal was below the minimum value required by Section 110. The Privy Council affirmed the view of the High Court observing : 'that the appellate Court was correct in holding that the value of the subject matter in dispute on appeal to His Majesty in Council must be taken to be the value of the share of the joint family property in respect of which the appellant is claiming....' It is true that the Privy Council was concerned with the valuation of an appeal sought to be preferred under Section 110, Civil P. C. but the interpretation placed by the Judicial Committee on the expression 'value of the subject matter' applies and has been applied to the same or analogous expression relating to jurisdiction. In (1947) 1 Mad LJ 112 : (AIR 1947 Mad 273) (supra) this decision has been so applied.
5A. In Sabastian Antonio v. Rodolf Minguel, AIR 1962 Bom 4, it was held:
'that in a 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.' Among other decisions the learned Judge followed AIR 1944 PC 65.
6. We do not propose to quote further cases on this aspect but would merely observe that the preponderance of judicial opinion is in favour of the view which we have indicated.
7. Counsel contends that appellate forum depends upon the value of the share allotted to the appellant and not upon the value of the plaintiff's share, though counsel pointed out that on the Commissioner's report accepted by the Court the plaintiff's share is above Rs. 10,000/- in value. On these premises he argued that the appeal lies to this Court and not to the District Court in terms of Section 12, Civil Courts Act. We have already pointed out that the value of the subject matter of the suit is the value of the plaintiff's share in a suit for partition. On that basis the value was below Rupees 10,000/- and the appeal must lie under Section 13 to the District Court. Counsel could draw our attention to no provision of law under which the value of the defendants' share determines the appellate forum. Acceptance of the appellant's argument would involve the consequence that while this appeal would be entertained in this Court the plaintiff's appeal if she chose to appeal would be in the District Court, a situation which unless law clearly mandates it is difficult to countenance. It is the plaintiff's valuation that determines the original and appellate forums and unless that valuation happens to be amended it would remain constant until the end of the action. It is a principle established so early as 1874 in Muthusami Pillai v. Muthu Chidambara Chetti, (1871-74) 7 MHC 356 :
'......... that the language of the Legislature (referring to Section 13, Madras Civil Courts Act) is clear and that the intention was to make the value of the suit, and not of the matter in dispute in the appeal, the criterion by which to determine appellate jurisdiction.'
The circumstance that the Commissioner has valued the plaintiff's share also beyond Rs. 10,000/- is therefore irrelevant; equally irrelevant is the valuation of the appellant's share for what determines the forum is the value of the plaintiff's share which is the subject matter of the suit. This is also in harmony with the theory that a suit is continued in the Court of appeal and reheard there.
8. In Putfa Kannayya v. Venkata Nara-sayya, AIR 1918 Mad 998 (2) (FB), in a suit for dissolution of partnership and accounts the plaintiff valued the subject matter of the suit at Rs. 2,000/- and instituted it in the Munsiffs Court. After taking accounts the Munsiff granted the plaintiff a decree for Rs. 5,577-7-1. The defendants preferred an appeal in the High Court on the contention that they were entitled to do so as the decree was for over Rs. 5,000/-. The question arose whether the amount or value of the subject matter of the suit or of the appeal determined the appellate forum--if it was the former the appeal lay to the District Court but if it was the latter the appeal was properly instituted in the High Court. In view of the prevailing conflict of views on the point a Division Bench referred the question to the Full Bench. The Full Bench held that the appeal lay to the District Court and in doing so adopted the exhaustive discussion made by the Division Bench in the reference. In the order of reference the Division Bench observed :
'The remaining point is as to the forum of appeal. We think that the same simple rule should be apph'ed, viz., that the amount or value of the subject matter as fixed in the plaint should determine the Court to which the appeal lies. It is to be observed that the words 'amount or value of the subject matter of the suit' occur both in Sections 12 and 13, Civil Courts Act, and the words should be given the same meaning in both the sections in the absence of any indication either from the context or otherwise that they were used in different senses; in this case apart from the general rule of construction, it will be clear that the words are used in the same sense when it is remembered that the value determined both the trial Court and the Court of appeal and intention of the legislature obviously being that the value when once ascertained and settled should remain the same for both purposes. The rule is nor only simple and capable of easy application to all cases but is also right on principle. As pointed out by the eminent Judge, Sir V. Bashyam Aiyangar in Kristnama Cbariar v. Mangam-mal, (1903) ILR 26 Mad 91 (FB), the theory of an appeal is that the suit is continued in the Court of appeal and reheard there. (Subject to certain differences not material in the context of Sections 12 and 13, Madras Civil Courts Act corresponding to the provisions of Sections 11, 12 and 13, Kerala Civil Courts Act.)'
9. The above decision was followed in Ahad Mir v. Mahda Bhat, AIR 1960 J & K 89, and both of them were followed in State of Kerala v. B. Nesan, 1974 Ker LT 10. It is worth quoting a passage from AIR 1960 J & K 89, 91 :
'There is a well established and fundamental difference between the valuation ofan appeal for purposes of court-fees and that for purposes of jurisdiction. For purposes of court-fees, it is the subject matter of the appeal that has to be considered, but for purposes of jurisdiction it is the value of the suit that has to be taken into account.'
10. Counsel for the appellant sought to distinguish AIR 1918 Mad 998 (2) (FB) which has been treated, in the words of 1974 Ker LT 10, as the leading authority on the point and the other two decisions as cases dealing with suits for accounts and therefore inapplicable to the present suit which is for partition. But in our view, on the scope of the expression 'value of the subject matter' of the suit in Sections 11 and 13, Civil Courts Act and on the determination of the appellate forum the same principle governs both types of suits. Indeed AIR 1918 Mad 998 (2) (FB) has been followed in an appeal from a suit for partition. In Ayish Bibi v. Muhammad Sadakathulla Mar-cair, AIR 1947 Mad 407, which arose from a suit for partition the plaintiff valued his share at Rs. 2,979-10-2 for purposes of jurisdiction and brought the suit in the Munsiff's Court. The total value of the assets was approximately Rs. 41,000/-. The suit was decreed in part. In the appeal the Subordinate Judge held that the appeal lay only in the High Court in view of the value of the total estate. Setting aside this order the High Court observed :....... that reading Sections 12 and 13, MadrasCivil Courts Act together when a suit is entertained by the District Munsiff's Court, on the basis of its own valuation, that valuation will determine the forum of the appeal and nothing in Section 13 of that Act will justify the entertainment of an appeal by the High Court from the decision of the District Munsiff's Court, even though on a correct valuation the suit should have been tried by the Court of the Subordinate Judge and the appeal should have been laid to the High Court.'
The learned Judges relied upon AIR 1918 Mad 998 (2) (FB) and another decision of the Madras High Court in support of this view and directed the Subordinate Judge to dispose of the appeal.
We hold that the value of the subject matter of the suit as explained above and not the value of the appellant's share as decreed to him determines the appellate forum and that the appeal is not maintainable in this Court. The memorandum of appeal and connected papers including C. M. P. No. 1645 of 1981 will be returned to the appellant for presentation to the proper Court. We make no order as to costs.