Kemball, J.
1. The suit in this case was instituted in the Court of the 2nd Class Subordinate Judge of Ahmedabad to obtain a decree declaratory of the right of the plaintiff to inherit the property of one Bai Adat, widow of Kirparam Veniram; the claim was valued at Rs. 99, and the plaint was written upon a stamped paper of the value of Rs. 10. The defendant denied the plaintiff's title and claimed to be himself the heir, and the Subordinate Judge found upon the merits that the plaintiff and defendant were co-heirs. Against this decision both parties appealed to the District Court, when the Assistant Judge, who heard the appeal, finding that the property left by the deceased exceeded in value Rs. 5,000, held that the Court of the Subordinate Judge, 2nd Class, had no jurisdiction to entertain the suit, and on this preliminary objection reversed the decree of the Subordinate Judge, and threw out the plaintiff's claim with all costs. The plaintiff now comes to this Court on special appeal asking to have the ruling of the Assistant Judge set aside and a judgment passed upon the cause.
2. The question is, was the Assistant Judge wrong in holding that the Court of a Subordinate Judge of the 2nd Class was not competent to try the suit
3. By Section 24 of the Bombay Civil Courts Act (XIV of 1869), the jurisdiction of a Subordinate Judge of the 2nd Class is declared to extend 'to all original suits and proceedings of a civil nature wherein the subject-matter does not exceed in amount or value five thousand rupees. 'For the appellant it is argued that the subject-matter of the present suit is not the property of the deceased, all that is sought being a bare declaration of title without consequential relief; and reference is made, in confirmation of this view, to the Court Fees Act, which prescribes a fixed fee for plaints in declaratory suits, where no relief is sought, on the ground that it is not possible to estimate at a money value the subject-matter in dispute (see Section 4 of that Act and also Schedule II, Article 17, Clauses 3 and 6). On the other side, it is contended that the Court Fees Act, which was framed for purely fiscal purposes, is not available as a guide in determining a question of jurisdiction; and as a decree upon title would be conclusive between the same parties in any subsequent suit for possession, the, property involved must be taken to be the subject-matter in a declaratory suit.
4. We think the respondent's objection to the use of the Court Fees Act in ascertaining value for the purpose of jurisdiction is sound. The law may well lay down, for purposes of revenue, certain fixed rules for the valuation of suits; but obviously such valuation cannot be accepted as a criterion of a matter of fact, such as the actual amount or value of a claim, upon which the jurisdiction of a Court depends. See on this head the remarks of Sir J. Colvile in Baboo Lekraj Roy and others v. Kanhya Singh and others L.R. 1 Ind. Ap. 317 and also the judgment of Couch, C.J., in Jeebraj Singh v. Inderjeet Mahtoon 18 Cal. W.R. 109 Civ. Rul.. and the ruling of the Full Bench of the Madras High Court in Thiagaraja Mudali v. Ramanuja Charry 6 Mad. H.C. Rep. 151.
5. In order to test the jurisdiction of a 2nd Class Subordinate Judge, which, as we have seen from the section of the Civil Courts Act above quoted, is subject to a pecuniary limitation, we have to determine definitively what is the 'subject-matter' of the present suit; for, if the Assistant Judge was right in holding that 'the property involved' is its subject-matter, we are bound to accept his valuation of the property as conclusive of the fact of jurisdiction.
6. We do not think there is much force in the appellant's argument that a distinction exists between a suit to have a declaration of right and a suit for possession dependent on that right, and that the object of such a declaratory suit being merely to establish the fact of a right resident in the plaintiff, that right, and not the property (the possession of which can only be obtained by a subsequent suit), is the subject-matter of the suit. It appears to us perfectly clear that whether the suit be merely for a decree declaratory of title to, or whether it be to establish title coupled with a prayer for possession of, the rights of the deceased person, the inheritance is the object in dispute. For the purpose of assessing the stamp duties leviable on plaints, a distinction, no doubt, is drawn by the Legislature, and. the reason for this is intelligible. If a person desires merely a declaration of his title, an arbitrary fee is fixed, but if possession of property itself is sought, a fee is charged according to the amount or value of such property; but the question of jurisdiction does not rest on the whim or will of the suitor: the amount or value of the property involved must be taken as the test of jurisdiction (where there is a pecuniary limit prescribed by law) quite apart from the remedy sought; to hold otherwise would be to admit this anomaly, that a Court might be competent to determine bare title to property, and yet would not have jurisdiction to consider the right to possession, although the decree as to title would be conclusive on the superior Court, when trying the possessory suit. It is true the law (vide Civil Procedure Code, Section 15) allows the Courts, without granting consequential relief, to make binding declarations of title; but it has been held both here and in England (this Section 15 is almost a transcript of Stat. 15 and 16 Vict., Chap. 86, Section 50) that it is discretionary with Courts whether they will give a declaratory decree or not; and it has also been held that a declaratory decree will not be made unless the plaintiff would be entitled to consequential relief if he asked for it, as, for instance, where an abstract decision on the point is asked, plaintiff being either in full possession or out of possession beyond the statutable period for the institution of suits.
7. Lastly, the appellant argues that it is not proper to take the value of the deceased's estate as the value of the subject-matter, seeing that it may possibly be charged with debts and legacies which would considerably reduce the amount coming into his hands. With that the District Court had nothing to do. The plaintiff asked to be declared entitled to the inheritance; and in considering whether the claim was properly valued, the Court obviously could not estimate the value the estate might eventually represent to the plaintiff.
8. We think, however, that the lower Appellate Court should have done what the Court of First Instance was bound to do under the circumstances, and have offered to return the plaint to the plaintiff in order to its being presented in the proper Court. In confirming, therefore, the decree of the lower Court with costs on the appellant, we order that she be allowed to have the plaint returned to her.