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Prolhad Chandra Das and ors. Vs. Dwarka Nath Ghosh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.636
AppellantProlhad Chandra Das and ors.
RespondentDwarka Nath Ghosh
Cases ReferredAklemannessa Bibi v. Mahomed Hatem
Excerpt:
adoption, suit to set aside - valuation of relief by plaintiff--forum of court--jurisdiction--restitution of conjugal rights, suit for--jurisdiction of munsif. - .....in support of the appellants' contention, the decision of this court in the case of, aklemannessa bibi v. mahomed hatem 31 c. 849 : 8 c.w.n. 705, has been relied on. this court has, however, in the later case of jan mahomed mandal v. mashar bibi 34 c. 352 : 5 c.l.j. 400 : 11 c.w.n. 458, pointed out that the decision in the case of aklemannessa bibi v. mahomed hatem 31 c. 849 : 8 c.w.n. 705, as to the jurisdiction of the munsif to entertain a suit for restitution of conjugal rights, is an obiter dictum. we have studied carefully the judgments of this court in these two cases and we are of opinion that the view taken in the latter case that the decision in the former case was not one which was necessary for the purposes of disposing of that case and, therefore, it was an obiter dictum is.....
Judgment:

1. The main point, which has been taken in support of this appeal, is that the lower appellate Court erred in law in holding that a suit to set aside an adoption was entertainable by the Munsif's Court. It appears that the suit was valued by the plaintiff at Rs. 1,235 and that the Munsif in whose Court it was instituted exercised jurisdiction in all suits not exceeding Its. 2,000 in value. In support of the appellants' contention, the decision of this Court in the case of, Aklemannessa Bibi v. Mahomed Hatem 31 C. 849 : 8 C.W.N. 705, has been relied on. This Court has, however, in the later case of Jan Mahomed Mandal v. Mashar Bibi 34 C. 352 : 5 C.L.J. 400 : 11 C.W.N. 458, pointed out that the decision in the case of Aklemannessa Bibi v. Mahomed Hatem 31 C. 849 : 8 C.W.N. 705, as to the jurisdiction of the Munsif to entertain a suit for restitution of conjugal rights, is an obiter dictum. We have studied carefully the judgments of this Court in these two cases and we are of opinion that the view taken in the latter case that the decision in the former case was not one which was necessary for the purposes of disposing of that case and, therefore, it was an obiter dictum is correct. We see no reason to depart from what appears to have been the practice in this province for a number of years, which has been accepted as the practice in other provinces and to hold that, for the purposes of jurisdiction, a suit to set aside an adoption is incapable of valuation. The practice has always been that it is competent to the plaintiff to value the relief claimed in his suit and that that valuation has been taken to determine the forum of the Court to decide the suit. In our opinion, therefore, this point takenin support of the appeal fails.

2. We have gone through the judgment of the lower appellate Court and we think that, on the merits as determined by the findings of that Court, the plaintiff has really no case. We see no reason, therefore, to interfere with the judgment and decree of the lower appellate Court. We accordingly dismiss the appeal with costs. We assess the hearing-fee at three gold mohurs.


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