Kunhikutti and Another vs Achotti and Others

As members of a Moplah family in North Malabar the plaintiffs claimed, with subsequent mesne profits, a moiety of certain items of property

which, as they alleged, belonged to the joint family. The ninth and nineteenth defendants claimed, inter alia, item No. 40 under a koyi panom

settlement of 1832. The value of the share claimed by plaintiffs was below Rs. 5,000, though the family property to be divided was of more than

Rs. 5,000 value. The Subordinate Judge held that a koyi panom settlement of family property was subject to any arrangement which might be

made at a future division and declined to exclude it from partible property. From this decision the ninth and nineteenth defendants appealed to the

District Court, but the Acting District Judge returned the appeal for presentation to the High Court on the ground that the value of the subject-

matter of the suit exceeded Rs. 5,000. From this order, the ninth and nineteenth defendants have preferred this second appeal, and have also

presented Civil Revision Petition No. 406 of 1889 u/s 622 of the Code of Civil Procedure. Two questions arise for decision, viz., (i) whether the

District Court had jurisdiction to entertain the appeal; and (ii) whether, if so, a second appeal, or a civil revision petition will lie to this Court under

the Code of Civil Procedure.

As to the first question, we are of opinion that the District Court had jurisdiction to entertain the appeal. This was not a partition suit by the

member of a joint Hindu family in which a general partition might be decreed among all the co-parceners, but it was a suit by certain members of a

Moplah family to recover their distributive share under the Muhammadan law. As observed by this Court in Mohammad v. Bivi Umma Appeal

No. 67 of 1888, unreported it is the value of the share claimed and not the value of the property from which that share has to be set out, that is the

value of the subject-matter of the suit within the meaning of Clause 2, Section 13, Act III of 1873. On the merits the District Judge must be

directed to receive the appeal and deal with it in accordance with law.

As regards the second question, we consider that neither a second appeal nor a civil revision petition is the proper legal proceeding to be

instituted against the order of the District Judge. The order returning the petition of appeal for presentation to the proper tribunal is an order made

with reference to the provisions of Sections 57 and 582 of the Code of Civil Procedure, and, when such order is passed by a Court in the exercise

of its appellate jurisdiction, an appeal will lie to the High Court u/s 588, Clause (c) and Section 589. No second appeal will lie, because there is no

appellate decree from which it can be preferred u/s 584. Nor can this Court interfere u/s 622, for an appeal will lie against the order of the District

Court u/s 589. This second appeal must be amended as an appeal from an order, and the civil revision petition must be rejected.

The error being merely one of form, we amend the second appeal as an appeal from an order of the District Court, and direct the Judge to

receive the appeal presented by ninth and nineteenth defendants and to dispose of it in accordance with law.

Each party will pay his own costs in this Court.