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Kuppuswami Goundan Vs. Mari Goundan Alias Mariappa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1943Mad427; (1943)1MLJ249
AppellantKuppuswami Goundan
RespondentMari Goundan Alias Mariappa Goundan and ors.
Cases ReferredKamaraju v. Chanduri Gunnayya
Excerpt:
- .....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.....
Judgment:

Kuppuswami Ayyar, J.

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. Rangachariar : AIR1940Mad118 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. Shaik Ali Sahib (1938) 48 L.W. 277 Govindan-Nair v. Madhavi : AIR1932Mad491 , Alagar Iyengar v. Srinivasa Iyengar (1925) 50 M.L.J. 406 Achammal v. Achammal : (1910)20MLJ791 and the decision in Chandu Nair v. Madhavi A.A.O. No. 206 of 1928.

4. Even conceding that a partition is an alienation, and in this particular case the alienation was effected by a guardian of the minor in his capacity as guardian, it is stated for the respondents that it is not necessary that such an alienation should be set aside and that it is open to the minor to ignore it. For this reliance was placed upon Kamaraju v. Chanduri Gunnayya : AIR1924Mad322 and Veeraraghavalu v. Sreeramulu : AIR1928Mad816 . In both these cases it was pointed out by this Court that it is not necessary for the minor to set aside the alienation and he could ignore it. The decision in Venkatakrishnayya v. Shaik Ali Sahib (1938) 48 L.W. 277 to the contrary is the decision of a single Judge whereas the other decisions are decisions of two Judges of this Court. The decision in Govindan Nair v. Madhavi A.A.O. No. 206 of 1928 has no application to the facts of this case. There their Lordships had to consider on what basis the suit is to be valued when the express relief is one for setting aside an alienation. Alagar Iyengar v. Srinivasa Iyengar (1925) 50 M.L.J. 406 was expressly dissented from in Veeraraghavalu v. Sreeramulu (1938) 48 L.W. 277 by a Bench of this Court. In Achammal v. Achammal : (1910)20MLJ791 , the question for consideration was whether a suit for a declaration that a particular document was not binding on the tarwad was to be construed as a suit for setting aside that document. There the suit was filed by only some members of the tarwad and the prayer was for a declaration that it was not binding on the tarwad as a whole. Consequently it was construed as a suit for setting aside the document itself. In Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon I.L.R.(1906) Mad. 18 where the suit was for a declaration that the alienation in question was not binding on the plaintiffs' interest only, it was held that the suit was really one for a declaration and not for setting aside the document. Chandu Nair v. Madhavi A.A.O. No. 206 of 1928 has no application to the facts of this case. There in a Malabar tarwad there was a partition and the properties of the tarwad were allotted to various branches. One of those branches alienated an item of property allotted to that branch. Then there was a suit by some other members of the original tarwad for recovery of possession of that item from the alienee. It was contended that the suit was not maintainable so long as the partition arrangement under which the particular item was allotted to a particular branch at the partition has not been set aside and that contention was upheld. So long as the members of the tarwad had not repudiated the arrangement and had not got it set aside, it would not be open to the members of one of the branches to sue for recovery of possession of the item allotted to another branch at the partition. In these circumstances, I do not think the decision in that case has any application to the facts of this case.

5. Even if the distinction which is sought to be made by the learned advocate for the petitioner is correct, in the face of the decision in Kamaraju v. Chanduri Gunnayya : AIR1924Mad322 it has to be held that it was not necessary for the plaintiff to sue for setting aside the partition deed of 1938.

6. The revision petition fails and is dismissed with costs.


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