C.M. Lodha, J.
1. This is a defendant's revision, arising out of a suit for partition.
2. The case has a chequered history. Defendant Mahadeo petitioner is the father and the plaintiff Hanuman Mal (who has died since the institution of this revision petition and is now represented by respondents Nos. 1(a) to 1(j) was the son of Mahadeo. Baboolal respondent is the second son of Mahadeo. Mahadeo had two brothers Chaturbhuj and Kaluram. Chaturbhuj left no issue and Kaluram had one son Gordhan Prasad, who is also one of the respondents before me. Hanumanmal filed the suit for partition in the Court of Civil Judge, Ratan-garh on 13-1-1953 against Mahadeo, Baboolal and Gordhan Prasad alleging that his grand-father Chandanmal had left a 'Haveli' in Ratangarh in which Gordhan Prasad had half share which had already been partitioned by metes and bounds and thus there remained the other half share in which he, his brother Baboolal and his father Mahadeo were entitled to get 1/3rd share each. He also averred in the plaint that there was some moveable joint family property belonging to himself and his father and brother which too had to be partitioned. He valued 1/6th share in the Haveli to which he was entitled at Rs. 2000 and 1/3rd share of the moveables at Rs. 500 and thus valued his suit for the purpose of pecuniary jurisdiction at Rs. 2500. It was proved that the Haveli may be partitioned by metes and bounds and he may be put in possession of 1/6th share of the same. It was also prayed that the moveable property may be partitioned and 1/3rd share in the moveable property may be ordered to be given to him.
3. Defendant Gordhan Prasad remained absent in spite of service and was proceeded against ex parte. Mahadeo filed written statement but did not contest the plaintiffs claim but on the other hand admitted it. Defendant No. 2 Baboolal in his written statement, pleaded that besides the house mentioned in the plaint there were some more properties liable to be partitioned. He pleaded that a suit for partial partition could not lie and that the entire joint family property including the assets of the joint family firm Chandanmal Mahadeo should be partitioned. His case was that if all the properties liable to be partitioned were taken into consideration then the share of the plaintiff alone in those properties would be more than Rs. 10,000. He therefore, contended that the suit was beyond the pecuniary jurisdiction of the Civil Judge, Ratangarh, who was competent to try suits of valuation of not more than Rs. 10.000, On the pleadings of the parties the learned Civil Judge. Rahtngarh framed six issues in all which read as under:-
1. Are the 'Nohra' situate in the Mohalla of Beghraj Maharasiva and the Haveli situated behind the lemple of Malies ancestral properties of the parties, and, therefore, must be included in the suit for partition?
2. Is the suit not triable by the Civil Judge. Ratangarh?
3. Is the firm Chandanmal Mahadeo an ancestral firm of the parties and should be included in the partition suit?
4. Are the silver bar, gold ornaments and utensils etc. also the ancestral properties of the parties and should be included in the suit?
5. What should be the scheme of the partition?
Before any evidence could be led on any of these issues, an application (marked Ex. A.1 on the record signed by Mahadeo Hanumanmal and Baboolal was presented before the Court on 6-4-1954 praying that the parties wanted to get the dispute regarding partition decided by the arbitrators Sagarmal Norangamal and Ghanshvamdas. It was prayed in this application that the arbitrators would have full authority to determine the joint family property of the parties and to give any decision in the matter which they thought fit. In other words very wide and comprehensive power was given to the arbitrators to determine the items of joint family property and to carry out the partition in whatever way they liked. The trial court allowed this application and referred the matter to the said arbitrators for filing award. The arbitrators filed their award on 22-4 1954 and besides immoveable property they also gave directions for partition of certain moveables including ornaments.
4. After the award had been submitted to the Court. Hanumanmal and Mahadeo filed their objections to the award on 1-5-1954. They also led evidence in support of their objections. Here, it may be stated, that one of the objections raised by Mahadeo was that the Court of Civil Judge. Ratangarh had no jurisdiction to make the award the rule of the Court inasmuch as the plaintiff's share according to the award was of a valuation of more than Rs. 10.000. It will be however interesting to note that without deciding the objections on merits, on 29-9-1955 the learned Civil Judge, Ratangarh observed that admittedly the plaintiffs share according to the award was more than worth Rs. 10.000 and as such no decree could be passed by him in accordance with the award. He therefore, referred the case to the District Judge, Bikanet for withdrawing the suit from his Court and transferring it to a competent court The learned Civil Judge also observed in his order dated 29-9-1955 that the valuation of the plaintiff's share according to the award would be Rs. 11.570 and even if the award was set aside, the property which may fall to the share of the plaintiff will not be less than worth Rs. 10,000. The learned District Judge transferred the cases to the Court of Civil Judge. Churu for decision according to law. The Civil Judge Churu on receiving the file of the case proceeded with its trial and passed a decree in accordance with the award on 9-6-1956.
5. Aggrieved by the judgment and decree of the Civil Judge, Churu the plaintiff Hanumanmal and defendant Mahadeo filed an appeal before this Court which was decided on 6-4-1960. This Court held that the Civil Judge Churu had no jurisdiction to deal with the case at all and in this view of the matter the judgment and decree of the Civil Judge. Churu were set aside and the case was sent back to the Civil Judge, Ratangarh for disposal of the objections against the award according to law.
6. After remand of the case to his Court the learned Civil Judge, Ratangarh heard the arguments and held that the objections preferred by the parties to the award given by the arbitrators had no substance and therefore he decreed the suit in accordance with the award. Dissatisfied with the judgment and decree of the Civil Judge. Ratangarh the defendant Mahadeo filed an appeal in the Court of District Judge. Bickaner who dismissed the same on 31-7-1964. Mahadeo, thereupon, filed a second appeal in this Court from the judgment end decree of the learned District Judge, Bikaner. When the case came up for admission on 23-4-1965. Mr. Chacha, learned counsel for the appellant Mahadeo made a prayer that the second appeal filed by Mahadeo may be treated as a revision petition and this was allowed to be done.
7. Mr. Chacha, learned counsel for the petitioner Mahadeo, has argued the following points before me:
1. That the learned Civil Judge Ratangarh had no jurisdiction to refer the whole matter to arbitration inasmuch as the arbitrators could not have decided the question of jurisdiction of the Court, which was one of the issues in the case.
2. That the award given by the arbitrators is a nullity inasmuch as it contained derision with respect to matters outside the scope of the suit.
3. The Civil Judge, Ratangarh had no Jurisdiction to pass a decree for partition to accordance with the award inasmuch as the valuation of the share of the property allotted to the plaintiff according to the award was of a valuation of more than Rs. 10,000 and thus beyond the pecuniary jurisdiction of the learned Civil Judge.
4. That the learned District Judge has erred in observing that apart from the question of jurisdiction no other point was pressed before him.
I shall take the points seriatim, points Nos. 1 and 2 in my opinion can be decided together. A bare perusal of the application for making reference (Ex. A 1) would snow that the parties had agreed that whatever decision the arbitrators would give, that is, whichever property is held by the arbitrators to be either joint family property or the self-acquired property of any party will be binding upon all the parties. It is further staled in the application that whatever portion of the property is allotted to any of the parties will not be objected to by them. Thus it is clear from the contents of the application that no reference was sought to be made to the arbitrators on the question of jurisdiction of the Court but what the parties wanted was that all their disputes pertaining to partition may be decided by the arbitrators. In these circumstances it cannot be said that the issue regarding jurisdiction of the Court had been referred to the arbitrators. The more important point, however, argued by the learned counsel for the petitioner is that since according to the award the valuation of the share of the joint family property allotted to the plaintiff Hanumanmal was more than Rs. 10.000 the learned Civil Judge. Ratangarh had no jurisdiction to make the award the rule of the Court, He submits that in the plaint the plaintiff had stated that there were only two items of partition viz. one house and a few moveables, and the valuation of the plaintiff's share as mentioned in the plaint was about Rs. 2500/-. Baboolal contended in his written statement that there were more properties to be partitioned and according to him the valuation of the suit was more than Rs. 10.000. In the award given by the arbitrators some more items of property were included and thus the valuation of the plaintiff's share as determined in the award definitely came to be about Rs. 15700. It is thus argued by Mr. Chacha that there was inherent lack of jurisdiction and the learned Civil Judge could not pass a decree in accordance with the award. In this connection he had placed reliance on Sections 6 and 15 of the Civil Procedure Code Section 6. Civil Procedure Code reads as below:-
'6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.'
Section 15 further provides that 'every suit shall be instituted in the Court of the lowest grade competent to try it.' The Civil Judge, Ratangarh was admittedly competent to try suits of valuation of not more than Rs. 10,000/- only, and, therefore, argues Mr. Chacha, the decree passed by the learned Civil Judge was beyond his jurisdiction, and therefore a nullity. In this connection it has also been argued that in a partition suit a defendant is also in the position of a plaintiff and in the present case as Baboolal also claimed a share in the joint family properties even though he had raised other pleas he was in the position of a plaintiff. The learned counsel has further submitted (hat Section 11 of the Suits Valuation Act has no application to the present case inasmuch as it is not a case of undervaluation or overvaluation of the suit but it is a case of complete lack of jurisdiction. In support of his argument the learned counsel has placed reliance on Mt. Sundar v. Kandhayia Lal AIR 1946 All 456, Chidamberam v. Subramanian. AIR 1953 Mad 492. Sita Ram Singh v. Tikaram Singh AIR 1942 Oudh 481. Loke Nath Saha v. Radha Gobinda AIR 1926 Cal 184. and Smt. Girija Bai v. Thakur Das, AIR 1967 Mys 217.
8. On the other hand the learned counsel for the respondent Baboolal has contended that the petitioner had waived all objections including that of jurisdiction by agreeing to get the matter decided by the arbitrators. It is argued that as a matter of fact Mahadeo had never raised any objection regarding the jurisdiction of the Court. It is also submitted that the objection regarding the jurisdiction cannot be allowed to prevail as there is no failure of justice in the present case and no prejudice has been caused to any party on merits, and to fortify his submission Mr. Kistoor Mal, learned counsel for the respondent Baboolal has referred to Kiran Singh v. Chaman Paswan. AIR 1954 SC 340. Hiralal Patni v Sri Kali Nath AIR 1962 SC 199. Moolchand Motilal v. Ram Kishan AIR 1933 All 249 (KB), Shyam Nandan Sahay v. Dhanpati Kuer AIR 1960 Pat 244 (FB) and Krishna Poduval v. Lakshmi Nathiar AIR 1950 Mad 751.
9. I may state at once that none of the authorities cited by the learned counsel for both the parties is with respect to a suit for partition, vet they do lay down certain guiding principles in such matters. In AIR 1946 All 456 a suit had been instituted to obtain a declaration that a deed of gift was not binding on the plaintiff. The suit was valued at Rs. 2000 and instituted in the Court of Munsiff, who had jurisdiction only upto that limit. At a later stage the plaintiff amended the plaint and added a prayer for an injunction which was valued at Rs. 100. In these circumstances the learned Judges held that the facts of the case did not bring it within the ambit of Section 11. Suits Valuation Act. This was obviously not a case of under-valuation and a distinct relief for Injunction had been added later on, with the result that the valuation of the suit became more than what was the pecuniary jurisdiction of the Munsiff. This case is therefore, clearly distinguishable on facts and in my opinion of no assistance to the petitioner.
10. In AIR 1953 Mad 492, it was observed that a Court which has no jurisdiction to determine any matter in controversy in a suit has no jurisdiction to refer it for determination by arbitrators. It was further observed that it will be illogical to hold that what a Court cannot do directly, it can do indirectly through the machinery of arbitration. In my opinion there cannot be any dispute with this proposition. The point, however, is whether apart from reference to arbitrators the Court had jurisdiction to determine the mailer in controversy in the present suit, and I shall presently deal with the question whether the Civil Judge, Ratangarh had jurisdiction to decide the suit.
11. In AIR 1942 Oudh 481 it was held that the principle under Section 11, Suits Valuation Act cannot be extended to a case where there is a want of inherent jurisdiction.
12. In AIR 1926 Cal 164 it was held that in a suit for partition the position of the parties is not that of the plaintiffs and defendants as in other suits for in a partition suit or in a suit for administration, or in a suit of a similar nature, every party stands in a position of a plaintiff with reference to another and that of the defendant with reference to some other. Therefore, unless there is a special reason, it is not possible to deny to a coparcener that right of partition either at his own instance or at the instance of any one else.
13. In AIR 1967 Mys 217 it was observed that in a suit for partition, each co-owner, as against another occupies in herself or himself the role of the plaintiff as well as the defendant. It is in consequence of this reciprocal character of the right which co-owners have in the matter of partition, that even those who are not the actual plaintiffs can claim that their shares also be allotted to them by the decree,
14. A survey of the authorities cited above by the learned counsel for the petitioner would go to show that in a suit for partition the defendant can also claim to have the partition carried out. It has also been held that in those cases where there is inherent want of jurisdiction Section 11 of the Suits Valuation Act can have no application. It is not denied by the learned counsel for the respondent that his client who was the defendant in the suit had the right to claim partition and could claim that partition be carried out not only with respect to the property which had been mentioned by the plaintiff in his plaint, but also with respect to other property, which had been wrongly excluded by the plaintiff. The question, however, remains whether the Civil Judge, Ratangarh had jurisdiction to try the suit. There is no gain-saying the fact that the plaint as framed by the plaintiff was triable by the Civil Judge, Ratangarh. The valuation which the plaintiff has fixed in the plaint was within the pecuniary jurisdiction of the Court of Civil Judge, Ratangarh. It is well established that the 'value of a suit' for purposes of jurisdiction is to be determined by the valuation in the plaint. The valuation which the plaintiff has given in the plaint in the present case is Rs. 2500, and therefore the suit was clearly within the jurisdiction of the Court of Civil Judge. Ratangarh. The petitioner did not contest either the valuation in the plaint or the jurisdiction of the Court. The defendant-respondent Baboolal, however pleaded that the valuation of the plaintiff's share would be more than Rs. 10,000, if all the partible property was taken into consideration. Before the parties could start their evidence, the case was referred to arbitrators and according to the award given by the ( arbitrators the valuation of the plaintiff's share no doubt came to be more than Rs. 10,000. In these circumstances a question arises could the Civil Judge pass a decree on the basis of the award? In my opinion he could. The reason is that, in every case when the Court is seized of jurisdiction it cannot and does not lose it by the precise ascertainment of its value in cases which do not admit of such ascertainment at the time of its institution. Moreover, in the present case, the petitioner completely identified himself with the plaintiff and not only failed to raise any objection regarding jurisdiction but positively agreed to all the assertions made by the plaintiff in the plaint and therefore it does not lie in the petitioner's mouth to raise any such objection regarding jurisdiction, unless he is able to show that it is a case of total lack of jurisdiction.
15. The learned counsel for the respondent urged that it was only case of undervaluation and not a case of inherent lack of jurisdiction. In this connection he has placed reliance on AIR 1954 SC 340. While discussing the scope of Section 11 of the Suits Valuation Act (1887) their Lordships of the Supreme Court were pleased to, observe:
'With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court unless there was a consequent failure of justice. It is the same principle that has been adopts ed in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction, The policy underlying Sections 21 and 99 C.P.C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court. Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.'
16. In a later case AIR 1952 SC 199 the validity of a decree passed on award was called into question during the course of execution proceedings and their Lordships of the Supreme Court held that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in the inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.'
17. Learned counsel for the petitioner, has not been able to show how the decree passed by the learned Civil Judge, Ratangarh was entirely lacking in jurisdiction. At one time he argued that the learned Judge had no jurisdiction to refer the matter to arbitration at all. He contended that what the court could not do directly could not be done indirectly. What he meant to suggest was that if the Court had no jurisdiction to try the suit, it could not indirectly invest itself with such jurisdiction by referring the matter to arbitration. I, however, for reasons which I shall presently state find myself unable to accept any of these contentions.
18. In this connection I may refer to the observations made in AIR 1960 Pat 244. In that case a distinction was drawn between the cases where there is inherent lack of jurisdiction apparent on the face of the record and the case where it is doubtful, or at least not so apparent, whether the Court possesses jurisdiction or not. Where there is total lack of jurisdiction, nothing can confer the same on the Court, and an objection to jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceeding of the Court from the very initial stage is without jurisdiction and void. Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint, if not challenged manifestly bring the case within the jurisdiction of the Court In which it is filed, its proceedings are perfectly with jurisdiction, and want of jurisdiction in such a case can rightly be waived. In other words this kind of defect in jurisdiction Is not fundamental in character and does not amount to anything more than amere irregularity in the exercise of jurisdiction. The lack of pecuniary jurisdiction, itwas observed, comes under the latter of theabove two kinds of defects, and therefore,is not fundamental in character. It can bewaived by any of the parties, and if notchallenged at the proper time, it cannot bequestioned subsequently. This is apparentfrom Section 11 of the Suits Valuation Actwhich clearly indicates that there is no apparent defect in the frame of a suit due tolow valuation and it does not take awaythe inherent jurisdiction of the Court toentertain it. In the present case on thevaluation given in the plaint, it cannot bedisputed that the Courts of Civil Judge,Ratangarh had jurisdiction to try thesuit. The defendant raised an objectionthat the subject-matter of the suit hadbeen under-valued and the valuation ofthe suit was above Rs. 10,000 but none ofthe parties wanted to pursue the objection regarding jurisdiction but on theother hand made an application for reference to arbitrators. Learned counselfor the petitioner has failed to show thatthere was a complete lack of jurisdictionin the Court of Civil Judge, Ratangarh totry the suit, or that there was any defectof fundamental character in the exerciseof_ jurisdiction. The utmost that can besaid is that there was under-valuation ofthe subject-matter of the suit but thedecree of the trial court on that accountis not liable to be set aside unless the appellate court was satisfied that the undervaluation of the suit had prejudiciallyaffected the disposal of the suit on merits.Learned counsel did not at all contendthat his client had been prejudicially affected on merits. As observed by theirLordships of the Supreme Court in AIR1954 SC 340 the objection regarding territorial or pecuniary jurisdiction of a Courtis only technical. In this view of the matter I hold that the decree passed by theCivil Judge, Ratangarh for partition of thejoint Hindu family property belonging tothe parties is neither without jurisdictionnor otherwise null and void. ConsequentlyI overrule this objection also.
19. The next contention raised by the learned counsel for the petitioner is that a decree has been passed by the trial Court with respect to the property which was neither the subject matter of the plaint, nor mentioned in the written statement by the defendant Baboolal. Suffice it to say, that no such objection was taken at any stage of the litigation so far. This objection is not contained even in the memorandum of appeal, and during the course of arguments the learned counsel for the petitioner verbally sought leave to urge this ground. I do not, however, consider it proper to allow this ground to be raised in revision at such a late stage, especially when It Is being vehemently opposed by the learned counsel' for the respondent. This objection also therefore does not hold any water and is to be stated only to be rejected,
20. Lastly the learned counsel for the petitioner has submitted that his client had urged several grounds attacking the award on merits before the first appellate Court, it is stated that the award whs assailed on the ground that the arbitrators had misconducted themselves but the learned District Judge has wrongly mentioned in his judgment that no other point except that of jurisdiction was argued before him. It clearly appears from the judgment of the lower court that no other point was argued before it except the question of jurisdiction. The learned District Judge has mentioned at more than one place in his judgment that no other point was pressed. The statement contained in the judgment must be taken to be true unless there is convincing proof to the contrary. No affidavit either of the counsel who argued the case before the District Judge, nor of the petitioner himself has been filed' in this Court alleging that any other points were urged before him and that the statement in the judgment of the lower Court 'that no other point was argued' is erroneous. In absence of such an assertion on oath I am not prepared to hold that the observation of the lower court in this respect is incorrect.
21. In the result I do not see any force in this revision and hereby dismiss it, but in the circumstances. I leave the parties to bear their own costs of this revision.