KUNJI KRISHNAN NAIR Vs. RADHAKRISHNAN NAIR

JUDGEMENT

(1.) This revision is directed against an order of the Additional District Judge of Trichur recording findings on certain issues tried preliminary. The suit purports to be one for a declaration that a partition effected in a Nair tarwad is not binding on the plaintiffs who were all minors then and for other incidental reliefs. All the plaintiffs except one are still minors. The issues preliminarily dealt with are issues 1, 2 and 10 in the case and they are as follows:

(2.) No exception was taken before me to the finding relating to issue 2 but the findings regarding issues 1 and 10 were seriously challenged. In my opinion these two findings cannot be sustained. The learned Judge would seem to have not properly understood the contentions of the defendants in the true perspective. The contention that the suit was not maintainable was based on the fact that once a Marumakkathayam tarwad had become divided in status a suit for a mere declaration that the partition is invalid is not maintainable. This position is well supported by decided cases and the decision in 14 Cochin L.R. 29 can be cited as an instance. To hold otherwise would lead to anomalous results and I cannot therefore uphold the lower court's finding with respect to issue 1.

(3.) The finding with respect to issue 10 is in my view equally wrong. The prayers in reliefs A and B in the plaint are no doubt alternative. But both of them ask not merely for a declaration but for consequential relief as well in the form of setting aside the partition deed wholly or partly as the case may be. Further it is not understood how prayers B and C can be clubbed together for purposes of valuation and court fees. Prayer C seeks recovery of certain items of immovable property. No doubt the interest the contesting defendants have in those properties is limited but for recovery of possession thereof, ad valarum court fee will have to be paid on the market value of that limited interest. However it is unnecessary to dilate upon this topic as the counter petitioners, (plaintiffs) learned Counsel expressed his intention to seek for an amendment of the plaintiff in case my decision on issue 1 goes against his clients.