GIRIJA BAI Vs. A THAKUR DAS

JUDGEMENT

(1.) This Revision Petition comes be-fore us on a reference made under Sub-section (2) of Section 8 of the Mysore High Court Act, 1961. when this matter came up for hearing before His Lordship Justice Kalagate.

(2.) This Revision Petition is directed against the order, dated 25th March. 1965, made by the First Additional Civil Judge Bangalore City, in Original Suit No. 12 of 1964. It purports to he an order on 1. A. Nos. IX and X The learned Judge disallowed both the applications. In the operative portion of the order, the learned Judge stales as follows:

(3.) To appreciate how the question that is new for decision in this revision petition arises. It is necessary to mention a few facts. Original Suit No 12 of 1964 was instituted mainly for a partition of the properties mentioned in the plaint schedule among the plain tiff and the defendants 1 to 11. The plaintiff claims that she is entitled to 1/12th share in the properly. She and defendants 7 to 10 are sisters Defendants 1 to 6 are her brothers. The property in respect of which a partition is sought is alleged to have belonged to her father Defendants 1 to 6 resisted the claim of the plaintiff 11th defendant, the widow of the deceased claims the entire pro-perty as a legatee under the Will of her husband. It also transpires that the defendants 7 to 10 have under several deeds released their rights in the proper Ms in question, in favour of defendants 1 to 6 Defendant 7 has no objection for a decree being pasted for l/12th share as claimed in the plaint. But she claims that she should also be granted a decree in the same terms as in the plaint in so far as it relates to parti tion and separate possession and claims 1/12th share in the plaint properties She also pleads that the release deed, dated 21-12-1959. executed by her in favour of defendants 1 to 6 is an impediment in her getting anv relief in the suit as one of the co-heirs She set out the circumstances under which she came to exe cute the release deed in favour of defendants 1 to 6 and submits that the said deed is void and not binding on her In the alternative she contended that if the release deed, dated 21-12-1959. is not void but voidable, she seeks cancellation of this document She further states that she has no sufficient means to pay the court-fee in respect of the said relief and craves leave of the Court to treat her written statement as a petition for leave to prosecute in forum pauper is so far as it relates to the relief relating to cancellation of the release deed. In support of that position she relies upon the provisions of Section 14 read with Section 36 of the Mysore Court-Fees and Suits Valuation Act. 1958 (Mysore Act XVI of 1958) An objection was raised in the trial Court to the effect that the 7th defendant is not enfitled to have the benefit of the provisions of Order XXXIII of the Code of Civil Procedure The question, whether the 7th defendant can have the benefit of the provisions of Order XXXIII of the Code of Civil Procedure is the one that is referred to for H derision, in the first inslance, by the trial Court in the order of this Court in C. R. P. 7 of 1964. After hearing the parties the learned Judge passed an order which has already been extracted