Jwala Prasad, J.

1. The fasts necessary for the disposal of this appeal have been clearly set forth in the order of the Court dated the 26th March 1919, which is the subject of appeal before as, and may be briefly stated as follows:--

During the minority of the plaintiff a Bait for partition of the family property was instituted on his behalf along with defendants Nos. 9, 10 and 11 and was numbered 3 of 1904. That suit was terminated by means of a compromise said to have been entered into between the parties. Subsequently the compromise decree was challenged on behalf of the plaintiff and his father defendant No. 9 and some other members of the family, who instituted a Title Suit No. 2 of 1906 to set aside the compromise decree on the ground of fraud and other allegations. The suit was dismissed for insufficiency of Court-fee and on appeal to the High Court the order of dismissal was confirmed. In that suit costs were awarded to defendant No. 1, who in execution of the order for costs attached the share of the plaintiff and defendants Nos. 9, 10 and 11 in the properties in suit.

2. The plaintiff having come of age has commenced the present action for a declaration of his joint interest in the property and his right to enjoy it separately and for hiving it declared that the said decree and sulehnama in Suit No. 3 of 1904 and the decree for costs in Suit No. 2 of 1906 are ineffectual, void and inoperative as against the plaintiff.

3. The reliefs claimed in the plaint are as follows:--

"(a) It be declared by the Court that the properties mentioned in the Schedules I and II of the plaint are joint ancestral properties of the plaintiff and defendants and that the plaintiff's share in them is one-eighth and the plaintiff holds possession of the said property in a state of jointness with them and is to have separate mode of enjoyment by separate possession of his share.

(b) That it be declared, if necessary, that the decrees in Suits No. 3 of 1904 and No. 2 of 1906 as well as the sulehnama upon which the decree in Suit No. 3 of 1904 is based are ineffectual, void and inoperative against the plaintiff.

(c) That costs of the suit with interest till realization and any other relief which the Court thinks the plaintiff is entitled to may also be given to the plaintiff."

4. As regards the valuation, the plaintiff states in paragraph 22 of the plaint as follows:--

"That the plaintiffs share in joint family properties mentioned in Schedules I and II of the plaint is one-eighth, whereof the value for the purpose of jurisdiction is laid at Rs. 1,915-6-2."

5. The plaintiff Sled an application for issue of an injunction restraining defendant No. 1 from executing his decree for costs and from proceeding in execution and Belling the attached property. This application was allowed and the sale of the property in suit has been stayed by the order of the Court, dated the 26th March 1919.

6. Aggrieved by this order defendant No. 1 has now come to this Court. The other defendants are not parties to this appeal.

7. A preliminary objection has been taken on behalf of the plaintiffs-respondents as to the competency of this appeal. The ground urged is that the value of the suit was below Rs. 5,000 and hence an appeal lay to the District Judge, and not to this Court.

8. The learned Vakil on behalf of the appellant resists this contention on the ground that the value of the suit is not what is stated in paragraph 22 of the plaint, but is the value of the entire properties mentioned in Schedules I and II of the plaint.

9. Dealing with the Court-fee leviable on the plaint, the Subordinate Judge, on the 18th Marsh 1918, held that it was not a suit for a mere declaration or partition of the property but was a suit for a declaration with consequential reliefs and was governed by section 7, clause (iv)(c) of the Court Fees Act, under which an ad valorem Court-fee was payable. He found that the value of the entire properties in Schedules I and II was Rs. 22,500 and that of the plaintiff's one-thirteenth share therein was Rs. 1,750. Accordingly he held that the valuation of the suit was Rs. 1,750 and directed the plaintiff to pay Court-fee thereon.

10. The question for determination before us is whether the valuation of the suit should be the value of the entire properties mentioned in Schedules I and II of the plaint, or that of the share of the plaintiff only in those properties, namely, the one-thirteenth share thereof. It is settled by authorities that in a suit for partition, pure and simple, where the plaintiff is in possession of his share of the property and simply wants to alter the mode of its enjoyment by claiming to hold his proportionate share in the properties separately from the other joint holders, the Court fee payable will be Rs. 10 only under Schedule II, Article 17, clause (vi) of the Court Fees Act. It has also been settled that where the plaintiff is out of possession of his share in the joint property, he is required to pay ad valorem Court-fee under section 7, clause (iv) of the Court Fees Act, inasmuch as it is not a suit for mere partition but for a consequential relief in the shape of recovery of possession of his share in the property. In such a case the plaintiff has to pay Court-fee upon the valuation of his share in the property.

11. There is, however, conflict of opinion as to what should be considered the value of the suit for the purpose of jurisdiction--whether it should be the value of the entire property sought to be partitioned or the value of the share of the plaintiff in the said property. The Bombay, Madras and the Allahabad High Courts have invariably held that in a suit for partition for the purpose of jurisdiction the value of the suit is not that of the entire property but only of the share of the plaintiff in the said property. The Calcutta High Court has, however, taken a contrary view [vide Warih-ud-din v. Waliullah 24 A. 381 : A.W.N. (1902) 88, Motibhai v. Haridas 22 B. 315 : 11 Ind. Dec. (N.S.) 792, Velu Goundan v. Kumaravelu Goundan  20 M. 280 : 7 M.L.J. 30 : 7 Ind. Dec. (N.S.) 206. Lala Bhugwat Sahay v. Rai Pashupati Nath Bose 10 C.W.N. 564 : 3 C.L.J. 257 and Biraj Mohini Dasi v. Chintamani Dasi 3 C.L.J. 197 : 10 C.W.N. 565 foot-note].

12. In the case of Raghunath Parsad Singh v. Syed Yahya Hussain  42 Ind. Cas. 966 : (1917) Pat. 301 in rejecting the application for leave to appeal to His Majesty in Council this Court held that the value of the suit was that of the share claimed by the plaintiffs, and not of the entire property, and in doing so it approved of the principle decided in the case of the De Silva v. De Silva 6 Bom. L.R. 403. Although the point was not directly decided in that owe, the decision was certainly based upon the principle adopted by the Bombay Madras and the Allahabad High Courts, The learned Judges declined to express any opinion on the correctness of the Calcutta cases. The present case is still more distinguishable from the Calcutta cases on account of the consequential relief claimed in it. That relief is set forth in relief No. (b) of the reliefs detailed in the earlier part of this judgment for declaring void and inoperative the decrees in Suits Nos. 3 of 1904 and No. 2 of 1906, as well as the sulehnama upon which the former decree was based. This relief clearly comes under section 7, clause (iv)(c) of the Court Fees Act, and the Court-fee payable thereon is ad valorem on the loss to the plaintiff [vide Ganesh Bhagat v. Sarada Prasad Mukerjee 30 Ind. Cas. 111 : 42 C. 370 : 19 C.W.N. 895, Chinnammal v. Madrasa Rowther 27 M. 480 and Waliullah v. Durga Prasad 28 A. 340 : 3 A.L.J. 181 : A.W.N. (1906) 38].

13. Relief (a), properly speaking, relates to the declarations sought by the plaintiff of his interest in the property being to the extent of one-eighth share and of his right to separate mode of enjoyment by separate possession of his share. The plaintiffs themselves valued the suit at much below Rs. 5,000 according to their own shares in the properties in Schedules I and II and that valuation, as stated above, is mentioned in paragraph 2Z of the plaint for the purpose of jurisdiction as well as for payment of Court fee, and the valuation of the relief made by the plaintiff should be the criterion in snob cases for the purpose of determining jurisdiction unless the said valuation is wrong or arbitrary [vide, Phul Kumari v. Ghanshyam Misra  35 C. 202 at p. 207 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10 : 37 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22 (P.C.), Ganesh Bhagat v. Sarada Prasad Mukerjee  30 Ind. Cas. 111 : 42 C. 370 : 19 C.W.N. 895 and Bankey Behari v. Ram Bahadur  44 Ind. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223].

14. The lower Court had already determined in clear terms by its previous order of the 18th March 1918 that the valuation of the suit was Rs. 1,750, i.e., one thirteenth of the entire value of the properties mentioned in Schedules I and II. The valuation of the suit determined by the Court was for the purpose of Court fee payable by the plaintiff as well as for the purpose of jurisdiction, That order has become final between the parties and we must, therefore, hold that for the purpose of jurisdiction the value of the suit was Rs. 1,750, that is below Rs. 5,000.

15. The appeal to this Court is, therefore, incompetent and the memorandum of appeal should be returned to be presented to the proper Court.

L.C. Adami, J.

I agree.