KUPPUSWAMI GOUNDAN Vs. MARI GOUNDAN ALIAS MARIAPPA GOUNDAN

JUDGEMENT

(1.) The only question for consideration is whether the suit (O.S. No. 146 of 1940) on the file of the District Munsiff's Court of Dharapuram is not cognizable by that Court by reason of the fact that the value of the suit exceeded the pecuniary jurisdiction of that Court. It was a suit for partition filed by the plaintiff against his two brothers. The plaintiff, first defendant and the second defendant are the sons of the third defendant. In 1922, the father became divided from the sons and he left the family. The first defendant (the eldest brother) managed the affairs of the joint family and in 1938 a partition was effected between the plaintiff, the first defendant and the second defendant. The plaintiff who was a minor then was represented by his father. The plaintiff filed this suit for partition of the family properties and possession to him of his one-third share ignoring the partition of 1938 as null and void on the ground that the first defendant was allotted very much more than what he was entitled to. The plaintiff valued the suit at Rs. 505-3-4 and on objection raised by the Court-fee Examiner that the proper article applicable was Section 7 (0) of the Court-Fees Act, the plaint was amended and a court-fee on Rs. 1,010-6-8 was paid. Subsequently the first defendant filed an application (I. A. No. 372 of 1941) praying that the question as regards the valuation of the suit and its maintainability in the District Munsiff's Court of Dharapuram should be decided as preliminary issues. His contention was that the suit was really one for cancellation of the partition deed of 1938 and that if it is so treated, the valuation of the suit would be much more than the pecuniary jurisdiction of the District Munsiff of Dharapuram. It is not disputed that if the suit is to be treated as one for setting aside the partition of 1938, it will be so. . But it was stated that the suit was for a partition, ignoring the partition of 1938 and that it was not necessary that the plaintiff should sue for setting aside that partition and that he was entitled to ignore it and claim a partition as if there had been no such division.

(2.) The learned District Munsiff relying on the decision of the Full Bench of this Court in Ramaswami V/s. Rangachariar held that there was no necessity for the plaintiff to seek to set aside the partition. But it is urged for the petitioner in this Court that that decision has no application to the facts of this case as in this particular case the minor was represented by a guardian and the partition deed in question so far as the plaintiff is concerned was one executed by the guardian of the minor. And it is also stated that in cases where the document is executed by a father or manager of a joint Hindu family, both in the capacity as manager and father and also as guardian of the minor, it would be open to the minor on attaining majority to ignore it and proceed as if it is not binding on him. But in cases where the person who executed the document did not act in his capacity either as manager or father but only as a guardian of a minor, it will be necessary for the minor to have the document set aside before he could recover possession of the properties.

(3.) Reliance was placed upon the decisions in Venkatakrishnayya V/s. Shaik Ali Sahib (1938) 48 L.W. 277, Govindan-Nair V/s. Madhavi , Alagar Iyengar V/s. Srinivasa Iyengar (1925) 50 M.L.J. 406, Achammal V/s. Achammal and the decision in Chandu Nair V/s. Madhavi A.A.O. No. 206 of 1928.