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Judgment
Koshi, J.—This revn. is directed against an order of the addl. Dist. J. of Trichur recording findings on certain issues tried preliminary. The suit purported to be one for a declaration that a partition effected in a Nair tarwad is not binding on the pltfs. who were ail minors then & for other incidental reliefs. All the pltfs. except one are still minors. The issues preliminarily dealt with are issues l, 2 & 10 in the case & they are as follows:
(1) ls the suit not maintainable? (2) Whether the pltfs. have no cause of action to bring this suit? (3) Whether the valuation of the suit & the Ct. fee paid are correct?
The learned Judge''s findings on all the three issues went against the defts. who were opposing the plaint claim & they have hence brought this revn.
No exception is taken before me to the finding relation issue 2 but the findings regarding issues 1 & 10 were seriously challenged. In my opinion, these two findings cannot be sustained. The learned Judge would seem to have cot properly understood the contentions of the defts, in the true perspective. The contention that the suit was not maintainable was based on the fact that once a Marumakkathayam tarwad had become divided! in status a suit for a mere declaration that the partition is invalid is not maintainable. This position is well-supported by decided cases & the decision in 14 Cochin L. R. 29 can be cited as an instance. To hold otherwise would lead to anomalous results & I cannot therefore uphold the lower Ct''s finding with respect to issue 1.
The finding with respect to issue 10 is, in my view, equally wrong. The prayers in reliefs A & B in the plaint are no doubt alternative. But both of them ask not merely for a declaration but for consequential relief as well in the form of setting aside the partition deed wholly or partly as the case may be. Further it is not understood how prayers B & C can be clubbed together for purposes of valuation & C. F. Prayer C. seeks recovery of certain items of Immovable property. No doubt the interest the contesting defts. have in those properties is limited but for recovery of possession thereof, ad valorem Ct. fee will have to be paid on the market value of that limited interest. How ever it is unnecessary to dilate upon this topic as the counter-petnrs. (pltfs.) learned Counsel expressed his intention to seek for an amendment of the plaint in case my decision on issue 1 goes against his clients.
In the result while setting aside the lower Ct''s. findings on issues 1 & 10 I direct that Ct. to dispose of the suit according to law in the light of this order. In case the plaint is sought to be amended that Ct. will exercise its discretion whether to allow it & if so on what terms.
The revn. is accordingly allowed & the petnrs. will have their costs from the pltfs.