Pandrang Row, J.
1. This is an appeal from the order of the Subordinate Judge of Palghat dated, 13th December 1933 in O.S. No. 50 of 1933 returning a plaint for presentation to the proper Court. The plaintiff sued his father aged 86 years and his younger brother for a declaration that a certain will executed by the father in respect of the plaint mentioned properties was not valid and that the properties in question form the common property of the family set apart as burial place and matam. The suit was valued for purposes of jurisdiction at Rs. 5,100 by the plaintiff. On objection being made by the defendants the preliminary issue was tried, namely whether the suit was overvalued for purposes of jurisdiction, and the learned Subordinate Judge found after considering the report of the Commissioner and the evidence on the point, that there had been over-valuation and that the market value of the properties would be only about Rs. 2,785. The Commissioner's valuation of the properties was Rs. 3,185. If the market value is to be adopted in determining the valuation of the suit for purposes of jurisdiction the appellant has really no case, because the finding of the Subordinate Judge as regards the market value cannot be said to be opposed to the evidence. The appeal has been argued entirely on the ground that the learned Subordinate Judge applied a method of valuation for purposes of jurisdiction which was not really applicable to a suit of the present nature in which the relief sought is one that cannot be assessed in terms of money, the properties concerned being properties set apart for charitable purposes. Assuming for argument's sake that this contention is well founded and that the market value is not the correct basis to be applied in a case of the present nature, it does not follow however that the plaintiff is entitled to put any value he likes for purposes of jurisdiction.
2. The present suit was for a declaration that the properties belonged to the family and had been set apart for certain charitable purposes and could not therefore be disposed of by will. Ordinarily any valuation which grossly exceeds the market value of the properties in question cannot be regarded as the correct valuation or as an honest valuation. In the present case properties which are worth in the market only Rs. 3,000 or less have been valued at Rs. 5,100. The object appears to have been clear, namely, to have the suit tried in a different forum, that is the Subordinate Judge's Court, instead of the District Munsifs Court in which it would otherwise lie, and also to change the appellate forum by fixing the valuation at Rs. 100 more than Rs. 5,000 so as to have a right of appeal to the High Court and not to the District Court. In these circumstances I am compelled to come to the conclusion that the valuation put by the plaintiff is neither correct nor honest and that it was put in the plaint for ulterior purposes which do not deserve to be encouraged.
3. The learned advocate for the appellant offers to reduce the valuation to something between Rs. 3,000 and Rupees 5,000 hut this is however objected to and opposed by the other side on the ground that the plaintiff has an ulterior motive, even in choosing the Subordinate Judge's Court as the forum instead of the District Munsifs Court, namely, that be wants a decision on the question of partition made by the father to which lie has referred in the plaint without putting court-fee in respect of it and that such a decision by the District Munsifs Court would not constitute res judicata in any subsequent suit regarding the same partition. Whether this objection or contention is well-founded or not cannot be decided on the material available to me, but in view of the conduct of the plaintiff-appellant in putting a grossly high value on the subject-matter I am not prepared to give any further opportunity to him to amend his valuation in appeal. The request for amendment came at a very late stage after most of the argument was over and I had indicated my opinion that the plaintiff did not act bona fide in the matter of the original valuation. Such late repentance does not deserve to be encouraged and I am not prepared to allow the amendment at this late stage. Moreover the amendment will not be of very great advantage to the other party and there is no reason so far as I can see why this suit should not be heard in the District Munsiff's Court. It follows therefore that the appeal must fail and is dismissed with costs.
4. One other point has been raised in this appeal and it relates to the question of one item of costs, namely the vakil's fee. The question is one of principle and must therefore be decided in appeal. The learned Subordinate Judge allowed costs to the defendants, only one set being allowed, and in doing so the vakil's fee was calculated on an ad valorem basis. This is obviously wrong; the suit has not been tried, and the vakil's fees cannot be allowed on ad valorem basis in a case of this kind. The principle adopted being wrong the question remains what is the proper amount of vakil's fee to be allowed in this case. It may be remembered that the suit was not heard on its merits but only a preliminary point relating to valuation was decided by the Court. In view of this fact I am of opinion that a comparatively lower rate of fee would be quite sufficient and I would modify the order of the lower Court by reducing the vakil's fee to Rs. 25 in the case of each of the defendants. The appeal fails in other respects, and the appellant must pay the costs of the respondents (one set) in this appeal.