KRISHNAN NAIR Vs. KUNHIKANNAN NAIR

JUDGEMENT

(1.) This revision is by the 33rd defendant in a partition suit among the members of a marumakkathayam tarwad, and is directed against the order of the lower court rejecting his application for issue of a Commission to divide off his share which he put down as 1/59, along with those of others.

(2.) The suit was by six plaintiffs claiming their 6/59 share of the tarwad properties. The preliminary decree was passed on 3-9-1935 in their favour for partition and delivery of the shares of the plaintiffs as prayed for, all the defendants remaining ex parte. Long later on 27-2-1953 it was that the 33rd defendant made this application. On objection raised by the plaintiffs 1-3 and other defendants, the court below rejected the application, on the grounds that in the absence of claim for his share before preliminary decree was passed in this suit and made by the 33rd defendant, he was not entitled to move for grant of his share on partition thereof and the application was anyhow belated having been filed more than 3 years, after the preliminary decree and therefore barred under Art.181 Limitation Act. The court below also found one more difficulty facing the 33rd defendant viz.; his own written statement as 34th defendant, in a later suit for partition in the family filed by some other members as O. S.882 of 1949 claiming 1/7 share on the basis of the number of members then existing.

(3.) Learned counsel for the 33rd defendant revision petitioner urges before me that the present suit must be deemed to be still pending, so long as a final decree has not admittedly been passed therein and there could accordingly be no objection to the defendant, cosharer claiming partition and delivery of his own share. He says that Art.181 cannot apply to the defendants application but even so the period of 3 years thereunder must run only from when the cause of action arises in his favour viz. according to learned counsel day to day. For it was nobodys case that the 33rd defendant has lost his share. Learned counsel says that the question of the later suit and his clients written statement is irrelevant for the purpose here. His client is entitled to 1/59 share so long as the rest of the defendants did not question such quantum. Having heard learned counsel, it seems to me that the order of the lower court is perfectly right and does not call for interference.