KAROL PULIKKOTTUKANDI GOVINDAN NAIR (DECEASED) Vs. KILIYANAMKANDI VATAKKE KAITHOTT THATTAKANDIYIL MADHAVI

JUDGEMENT

(1.) The question raised in the present Revision Petition is as to the valuation of the plaint in accordance with the Court Fees Act and of the exact Court-fee payable thereon. A subsidiary question is raised whether the District Munsif has jurisdiction to entertain the plaint. This question of jurisdiction would depend upon the decision of the question of valuation and Court- fee payable in respect of the plaint.

(2.) The plaintiffs, who were minors when a, partition arrangement was entered into in 1921 among all the members of the: tarwad, being dissatisfied with that arrangement, filed the original suit in question (1) to recover possession of the immovable properties mentioned in the partition deed, and (2) as an alternative prayer, they asked for their shares of the properties. This very case came before us on a former occasion in CM.A. No. 206 of 1928 when Cornish, J. and I decided that the plaintiffs ceuld not ignore the partition deed in question but that the plaintiffs should pray for the setting aside of the partition deed so far as they were concerned. We accordingly directed that the plaintiffs may apply for amendment of the plaint, giving the defendants liberty to raise any questions that may arise consequent upon that amendment. The plaintiffs accordingly applied for amendment of the plaint, and they retained their old prayer to recover possession of the immovable properties covered by the partition deed and in respect of that relief they have paid Court-fee as per Section 7 of the Court Fees Act. There is no dispute with reference to that, as Court-fees have been paid on an amount calculated at ten times the revenue payable in respect of the properties in question. The dispute arose only with reference to the alternative prayer contained in the plaint. The valuation of the properties comprised in the partition deed is admitted to be Rs. 5,327, and if the plaintiffs are bound to adopt that valuation with reference to the present plaint and with reference to their prayer to set aside that partition deed, then it is clear that the suit instituted in the District Munsif's Court is not maintainable in that Court, and the plaint will have to be returned to the plaintiffs for presentation to the Subordinate Judge's Court. The plaintiffs, however, contended before the Lower Court that it is only with reference to their shares they are entitled to have the partition deed set aside, and as their share is said to be 3 j 16 of Rs. 5,327 mentioned above, the suit is within the cognizance of the District Munsif's Court, and that Court-fee is payable only on that amount. The learned District Munsif has upheld that contention of the plaintiffs, and the contesting defendant has preferred the present revision petition.

(3.) On behalf of the petitioner it was argued that the plaintiffs have to set aside the partition document and could not ignore the same and that the decision of this Court in CM.A. No. 206 has settled that point between the parties. I think that argument is sound. Following the decision of the Privy Council in Balkishen Das V/s. Ram Narain Sahu (1903) L.R. 30 I.A. 139 : I.L.R. 30 C. 738 (P.C.) we held that the "plaintiffs had to pray for the setting aside of the document so far as they were concerned." The following passage from the decision of the Privy Council in that case is relevant to the consideration of the question now before me. Their Lordships observed: No doubt if the partition was unfair or prejudicial to the minor's interests, he might, on attaining his majority, by proper proceedings, set it aside so far as regards himself.