Rajakrishnan Nair vs Joseph and Others

Madhavan Nair, J.—The petitioner applied for permission to institute a suit in forma pauperis for the partition of his tarwad after setting aside certain alienations. The parties are governed by the Travancore Nayar Act, 1100. The court below found that the petitioner is not possessed of means to pay the court fee on the plaint, but refused leave to sue as a pauper on the ground that the suit is barred u/s 34(2) of the said Nayar'' Act. It has been laid down in Kesavan Nair v-Padmanabhan Nair 1957 K. L. J. 1206 and Nari Ittiamma v Raman 28 T. L. J. 821 that the provisions of Section 34 of the Travancore Nayar Act do not lay down any condition precedent for the institution of a suit for partition by a Nayar but only impose certain restrictions or limitations on the right to claim compulsory partition which restriction or limitation it is open to the members to exercise or waive. It is enough if the consent prescribed in the section be made out in the course of the suit. Non-procurement of such consent before the institution of the suit cannot be taken to debar a suit for partition. The view taken by the court below that the suit is barred by section 34 of the Travancore Nayar Act is unsustainable. The respondent has no case that the petitioner is possessed of means to pay the court fee on the suit. In the circumstances, the petition is allowed and the court below is directed to accept the plaint and register it as a suit in forma pauperis. There will be no order as to costs in this C. R. P.