PUTHIA KOVILAGATH THEKKE KETTU THAVAZHIYIL MANAVEDAN Vs. PUTHIA KOVILAGATH THEKHE KETTU THAVAZHIYIL KARNAVAN MANAVEDAN

JUDGEMENT

(1.) This petition raises some questions as to the court, fee payable on a plaint filed by the petitioner, in the Subordinate Judge's Court at Calicut, for partition of certain Tavazhi properties on the footing that the plaintiff is a junior member thereof and that the suit properties are tavazhi properties. The plaint makes reference to certain mortgages and debts and alleges that these mortgages and debts are not binding on the tavazhi. The relief portion is very inartistically drawn and rightly or wrongly she lower Court has construed it as praying for certain declarations. On objection taken to the sufficiency of the court-fee paid, the lower Court has directed the plaintiff to pay Court-fee Under Section 7, Clause V, Court-fees Act, In respect of the plaintiff's share in items 1570 to 1595 of the plaint schedule and to pay court- fee under Art. 17-A(i), Schedule 2, in respect of the debts referred to in paras. 8 to 10 of the plaint. The petitioner has accepted the order of the lower Court in so far as the direction relating to items 1570 to 1594 is concerned.

(2.) As regards item 1595, he contends that as the karnavan is still in possession of that item the plaintiff should not be called upon to pay court-fee so far as the plaint relates to that item. This contention is opposed to the decision of a Division Bench in Kandunni Nair V/s. Raman Nair (1930) 17 A.I.R. Mad 597. Mr. Warrier, the learned Counsel for she petitioner, seeks to distinguish that case on the ground that there the Tavazhi was never in possession of the disputed items of property which all along remained in defendant 1's possession; whereas here, the plaint alleges that till 1933, the Tavazhi has been in possession of item 1595 through its Karnavan and it is only after that date that defendant 1 began to mortgage that item stating that it is his separate property. I do not think that this distinction on the facts makes any difference in the principle applicable. For the purpose of determining the court-fee payable, the point for consideration is, whether on the date of suit it can be said that defendant 1's possession was, possession on behalf of the Tavazhi. There can be no doubt that on the allegations in the plaint in this case, defendant 1 could not, after 1933, be held to be in possession of this item on behalf of the Tavazhi. The lower Court's direction that court- fee Under Section 7, Clause V should be paid in respect of the plaintiff's share of item 1595 will therefore stand.

(3.) Objection is next taken to the lower Court's direction in respect of the debts. In para. 8 of the plaint, reference is made to five mortgiges created by defendant 1 on item 1595, on the footing that that item was his separate property. The decision of a Division Bench in Balwant Singh V/s. Rev. Rockwell, Clancy (1912) 34 All 296 supports the view that if the plaintiff in a partition suit attacks a mortgage of joint family property made by the manager and asks for a declaration that the mortgage is not binding on his share he is bound to pay court-fee in respect of such declaration under Art. 17-A(i). With respect I feel bound to state that I have some doubts as to the correctness of that judgment because it does not consider the question whether such a suit can be regarded as a suit for declaration where no consequential relief is prayed for. Art. 17-A(i) governs only cases where no consequential relief is prayed for. If as incidental to his remedy by way of partition, a plaintiff contends that a mortgage said to have been effected on the joint, family property is not for family purposes1 I am not as at present advised prepared to say that the suit is one in which no consequential relief is prayed. I may refer by way of analogy to another familiar class of cases, i.e., where a reversioner sues for possession of property mortgaged or alienated by a widow. Such suits often times involve a declaration that a mortgage or sale made by the widow is not binding on the estate. The Court in such cases is bound to investigate the binding character of the alienation before decreeing possession. If in this class of suits, the prayer for a declaration does not require separate court-fee, I do not see how partition suits stand on, a different footing.