Present: Lyall Grant and Drieberg JJ.
DE ALWIS v. APPUHAMY..293—D. C. Kalutara, 12,275
Privy Council—Application for leave to appeal—Value of land in theplaint—Value of share in dispute below Rs. 5,000—Proof of actualvalue—Appreciation of value since action.
Where in a partition action the value of the land was stated inthe plaint to be Rs. 16,000 and the share in dispute was one-fourthof the land,—
Held (in an application for leave to appeal to the Privy Council),that the appellant was entitled to prove the actual value of theshare in dispute in the following cases : (a) Where there has beenno fraud on the part of the appellant and the land has not beenunder-valued for the prirpose of obtaining some advantage, (6) wherethe value has appreciated since the institution of the action.
Held further, that evidence on the question of value should beconfined to the evidence of the appellant. –
lHIS was an action for the partition of a rubber estate, 40
acres in extent, valued in the plaint at Rs. 16,000. In thecourse of the action a contest arose between the third plaintiff onthe one side and the fourth and fifth added plaintiffs (by theirnext friend the first plaintiff) on the other, in respect of a one-fourth share originally allotted to the second plaintiff, who diedduring the pendency of the action. The contest turned on theinterpretation of a will, and the learned District Judge held infavour of the third plaintiff. This was upheld by the SupremeCourt in appeal, and the fourth and fifth plaintiffs (petitioners)made this application for conditional leave to appeal to the PrivyCouncil. The face value of the one-fourth share being onlyRs. 4,000, the petitioners sought to prove that its real value wasabove Rs. 5,000.
Keuneman (with him Rajakariar), for petitioners.—We move tofile an affidavit from the Vidane Arachchi valuing the land atRs. 600 an acre. The whole extent is 40 acres. We also move tofile affidavit from thp next friend of the petitioners and to produce(a) deeds showing dealings with this land at Rs. 1,000 an acre,and (6) an agreement to sell 16 acres at Rs. 16,000.
[Grant J.—Can you go behind the statement in the plaint ?]
We are not bound by the statements made by the originalplaintiffs.
In a case reported in 7 Moore's Indian Cases 261, special leave toappeal was given where application was supported by other evidencere value. It is true that in this case the petitioner was a defendant,hut in a case reported at page 428 of the same volume similar Veliefwas granted to the plaintiff.
In Surendra Nath Roy v. Chakravarti1 it was held that the valueis the value at the time of decree and appeal, and not at time ofplaint. If that is the case no admissions made at time of plaintare material.
No reason why Your Lordships should not call evidence.(Morgan’s Digest (1835), p. 57.) Where value of the property did notappear in proceedings, the Supreme Court ordered the DistrictCourt to investigate the value.
Ameresekera (with him Canakaratne), for respondent.—Thepetitioners are privies of the deceased second plaintiff and arebound by her statement (section 18 of Evidence Ordinance). Thepetitioners did not take up this position as soon as they entered thecase. They ought not to be allowed to lead evidence at this stage. -Value given in the plaint is decisive, vide Appuhamy v. Corea,2 whichwas followed in 306, D. C., Colombo, 24,762—S. C. M., February 2,1911.
Vide also 12 N. L. R. 367,15 Moore’s Privy Council Appeals 181,Baretto v. Antonis Rodrigues el. al,3
Keuneman, in reply.—No case cited by respondent against ourcontention except case in Browne’s Reports, but the Privy Councildecisions were not considered in that case. Besides, the revenue hasnot been defrauded in this case.
The Bombay case is in my favour. In that case the value cameinto issue in the original Court for purposes of jurisdiction. In thiscase no question of valuation need have been raised in the lowerCourt.
March 27, 1929. Lyall Gkant J.—
This is an application for conditional leave to appeal to the PrivyCouncil. The petitioners are the fourth and fifth plaintiffs in apartition action appearing by their next friend the first plaintiff.
The appellants were not original plaintiffs to the action, but wereadded on the death of the second plaintiff, their mother, by whosewill they claimed one-quarter of the whole latfd.
The land sought to be partitioned consists of about 40 acres inthe Kalutara District, which is said to be fully planted up withrubber. The material value of the action is set out in the plaint atRs. 16,000.
1 4* Cal. 119.* (1900) 1 Browne’s Rep. 165.
5 35 Bom. 24.
( 423 )
It is agreed that the matter in dispute is whether the fourth andfifth plaintiffs are or are not entitled to one-fourth share of the land,and that the value of this quarter as given in the plaint is Rs. 4,000,that is to say, that the petitioners’ claim was valued at Rs. 4,000.
The petitioners now seek to show that the present value of theestate is over Rs. 20,000 and that the matter in dispute is thereforeover the value of Rs. 5,000.
It is admitted that unless an appeal lies as of right there do notexist any grounds upon which this Court can be asked to exercisein favour of the petitioners the discretion vested in it by Rule 1 (6)of the Rules governing appeals to His Majesty in Council.
Lya llGrastt J.
Dc A livi*
In Mohide&n Hadjiar v. Pitchey,1 the Privy Council granted anapplication to appeal by a plaintiff where the original claim wasunder the appealable amount, but where the value of the propertyincluding mesne profits to the date of judgment was over thatamount.
In Allan v. Pratt, 2 where the appeal was by a defendant, thePrivy Council laid down the rule that the proper measure of valuefor determining the question of the right of appeal is the amountwhich has been recovered by the plaintiff in the action and againstwhich the appeal could be brought and endorsed the further rulepreviously adopted that the judgment is to be looked at as it affectsthe interest of the party who is prejudiced by it, and who seeks torelieve himself from it by appeal.
The petitioners in the present case do not aver that the value ofthe claim is greater now than it was at the date of the bringing ofthe action. They say, however, that at that date it was under-valued and claim to be allowed to submit a valuation showing thatthe amount in dispute is over Rs. 5,000.
In 1835, in a case reported in Morgan's Digest 57, where the valueof the property did not appear in the proceedings and was allegedby the appellant to exceed £500, this Court ordered the DistrictCourt to ascertain the value of the property by commissioners.
In Appuhamy v. Corea, 3 the property had been valued at Rs, 4,500by the plaintiff. No objection to the valuation had been taken bythe defendant, but on judgment going against him in the SupremeCourt he sought leave to prove that the land was worth Rs.29,000.Bonser C.J. refused leave to appeal on the ground that the-defendant was bound by his previous conduct.
Bonser C.J. based his refusal to allow a revaluation largely onthe ground that the parties had valued the claim low for their ownpurposes, one of which was to avoid the payment, of "heavy stampduty.
1 )1S93) Appeal Cases 193.* (1888) 13 Appeal Cases 7S1.
3 (1900) Brownes Hep. lOi.
( 424 )
This consideration is not a serious one in the present case.Ordinary stamp duty is not payable in a partition action, and theoriginal plaintiff’s claim was well over the appealable amount,apparently the valuation made no difference to the scale of feesapplicable.
The value of a partition action for determining the Court whichhas jurisdiction under section 77 of the Courts Ordinance and forother purposes is taken to be the value of the whole land sought tobe partitioned, and not merely the value of that part of it whichmay happen to be in dispute or the value of the share. (See 4Thambiah’s Reports 166.) The present appellants, who came inafter the plaint was filed, gained no advantage by an under-valuationof the land in the plaint.
The value of the partition action is, however, admittedly not aguide to the appealable value-of the case under the Privy CouncilRules, where the value of the claim is the determining factor. Wereit otherwise, a plaintiff wKo claimed a share of a nominal amountcould take his claim to the Privy Council assuming the value of thewhole land to be over Rs. 5,000.
In India parties have been allowed to show that the claim hadincreased in value between the date of the plaint and the date ofappeal. See Surendra Nath Roy v. Dtcarka Nath Chakravarti.1
In that case the value of the land was alleged to have increasedduring the pendency of the suit. The principle was there admittedthat the value at the date of appeal was to be taken.
In Mohun Lall Sookul v. Beebee Doss,2 the Privy Council decidedthat where by the usage of the Indian Courts a case was valued forpurposes of stamp duty at an amount below the appealable value,the petitioners should by evidence to be taken in India be allowed toshow that the real value at the time of the plaint was greater.
In Oourmonet Debia v. Khaja Abdool Ounny, 3 the Privy Councilallowed a similar application on depositions filed in the record.
In Mohun Lall Sookul v. Beebee Doss,4 a further order was m ade bythe Privy Council in the case reported in 7 Moore’s Indian Appeal-Cases, 428.
That order sets forth in some detail the principles which are tobe followed in allowing an appeal. It appears that where a suitis undervalued for the purpose of evading the revenue laws no. indulgence will be granted. In regard to this their Lordships ofthe Privy Council in effect endorse the view expressed by Bonser C. J.
1 44 Indian Law Reports (Cal.) 119.
8 (1860), 1 Moore’s Ind. Appeal Cases 428.
* Moore's Ind. Appeal Cases i68.
8 Moore’s Ind. Appeal Cases 492.
( 425 )
in Appuhamy v. Corea (supra). In the particular case however thePrivy Council proceeded partly on the ground that the mistakewas one on the part of the Court no less than of the appellants.
The established principle appears to be that where there has beenno fraud on the part of the appellant and where he has not consentedto a lower valuation for the purposes of obtaining some advantage,he should be allowed to prove the value of his claim, and that wherethat value has appreciated since the date when action was first taken,he should be allowed to prove the value at the time of appeal.
On the question whether the respondent should be allowed to leadevidence on the question of value, the rule is laid down in 8 Moore492. Evidence in value is to be confined to evidence led by theappellant, and this restriction is with a view to prevent the intro-duction, for the purpose of merely a Fiscal regulation, of a contestedissue on the question of value.
A. •- affidavit and one or two documents have been put before uswith a view to showing that the amount in dispute is over Rs. 5,000.
They are sufficient, I think, to show that there exist reasonablegrounds for inquiry on the point.
The case is accordingly remitted to the District Judge of Kalutara,with instructions to hold a summary inquiry into the value of theapplicant’s claim and to report to this Court.
Driebeeg J.—I agree.
De A! toilv.