The market value of the plaintiff's share determines the jurisdiction of the Court in a suit for partition falling under S.37(2) of the Kerala Court fees and Suits Valuation Act, 1959.

M.U. Issac, J.

1. This is a petition by defendants 3 to 9 in O. S. No. 305 of 1967 on the file of the Badagara Munsiff's Court to revise an order, which overruled their objection to the maintainability of the suit in that Court on the ground of jurisdiction. The suit is one for partition of an item of immovable property. The plaintiff also claimed her share of the income. She valued her share of the property at Rs. 4,000 and her share of the income as Rs. 875. Defendants 3 to 9 objected to the above valuation, stating that the market value of the plaintiff's share in the property and share of the income would exceed Rs. 5,000 and that the suit was not therefore, maintainable in the Munsiff's Court. The court below found that the suit falls under S.37(2) of the Kerala Court fees and Suits Valuation Act, 1959, and that in such a case S.53(1) of the Act applies and the plaintiff has got "an undisputed right to value the suit for the purpose of court fee and jurisdiction at her discretion".

2. There is no dispute that the suit falls under S.37(2). The petitioners contend that such a suit falls under S.53(2) and that S.53(1) has no application. I shall now read S.37(2) and S.53:

"37(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by plaintiff who is in joint possession such property, fee shall be paid at the following rates:

When the plaint is presented to      

"53. Suits not otherwise provided for -- (1) In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in this Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same.

(2) In a suit where fee is payable under this Act at a fixed rate, the value for the purpose of determining the jurisdiction of courts shall be the market value or where it is not possible to estimate it at a money value such amount as the plaintiff shall state in the plaint".

It is hardly contestable that it is S.53(2) and not S.53(1) which applies to a suit which falls under S.37(2). Therefore the value for the purpose of determining the jurisdiction of courts is the market value. There is no case that it is not possible to estimate the value of the suit at a money value. The lower court is, therefore, clearly wrong in holding that the plaintiff was entitled to value the suit for purpose of jurisdiction at her own discretion.

3. S.7 of the Act provides for determination of the market value. That section reads as follows:

"Determination of market value -- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.

(2) The market value of land in suits falling under S.25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.

(3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. (4) Where the subject matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market va