K. KALIANNA GOUNDER Vs. BALASUBRAMANIAM (MINOR) AND ORS.

JUDGEMENT

(1.) THE petitioner is defendant 1 in O.S. No. 226 of 1944 filed by three sons of their next friend, their mother, (a) for a declaration that a sale deed executed by their father for himself and as guardian of the first and second plaintiffs was not binding on them, not having been executed for family necessities, (b) for partition and (c) for recovery of the properties.

(2.) THE suit was filed in the Sub -Court, Salem, but was returned by the Subordinate Judge, apparently after consideration for presentation to the District Munsiff's Court of Namakkal on the ground that it. was, in essence, a suit for possession and was within the jurisdiction of the latter Court. It was duly presented in the Court of the District Munsiff, Namakkal; but again, the plaintiffs met with a check, because, on the preliminary consideration of an issue relating to jurisdiction, the District Munsiff rejected the reasoning of the Sub -Court and held that the suit was, in substance, one for declaration and that therefore Section 7(iv -A) of the Court -Fees Act applied. In the result, he held that having regard to the value of the property, it was beyond the jurisdiction of the Munsiff's Court. ' This was on 20th February, 1945. The matter then came before the District Judge of Salem; and on 10th December, 1945, he set aside the order of the District Munsiff and ordered that the plaint should be entertained and disposed of in the District Munsiff's. Court. The matter comes up in revision from the decision of the District Judge.

(3.) IT is said on behalf of the petitioner here that the suit is not in form one for partition. The father, for example, is not made a party and none of the usual details such as provision for the payment of the family debts, division of the properties by metes and bounds and so on, have been set out. It is also contended that inasmuch as the deed which is mentioned in the plaint and a declaration as to which is asked for, was executed by the father for himself and as guardian of two at least of the plaintiffs, strictly they must ask for a declaration that the deed should be set aside before they can hope to get possession. In effect, the petitioner says that this is much more of a suit to set aside a deed than it is one for partition and that the reasoning therefore of the District Judge as quoted is not applicable to the facts of this case. On the other hand, it has been argued and I think with some force that an analysis of the various decisions cited to me shows that the general opinion is that wherever members of a Hindu family are seeking to regain their family property or their shares therein, the property having passed into other hands, then, despite inadequacies or over -amplifications in the pleadings, nevertheless, the suit is, in essence, one for possession and should be dealt with under Section 7(v). No case exactly on all fours has been cited to me; but the Full Bench decision in Ramaswami v. Rangachariar, (1940) 1 M.L.J. 33 :, I.L.R. (1940) Mad. 259. 2 appears generally to support the proposition that, members of a Hindu family out of possession may ignore avoidable deed and seek to regain possession. " That case points out at page 280 that even if a plaint contains a prayer for a declaration or cancellation, there may yet be good reasons for holding it to be one for a purely incidental, but unnecessary relief; and approval is given to the proposition now put forward by the respondent and accepted by the District Judge of Salem that even where there is a deed executed without authority, or, where authority exists, nevertheless, the circumstance justifying the use of the authority did not exist, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. In my opinion, the asking for a declaration in this case comes within the general sense of that authority and taking all the circumstances into consideration, the suit is, in effect, one for possession to which Section 7(v) applies. This civil revision petition is, therefore, dismissed with costs.