K. Harilal, J.

1. The scope and extent of power conferred upon the court to grant relief which is neither pleaded nor prayed for, in a suit, when the defendant admits the claim, is the issue which has cropped up for our consideration in this appeal.

2. This appeal is directed against the judgment and decree passed in O.S.No.615/2009 of the Sub Court, Kozhikode. The suit is one for partition and the appellant is the plaintiff in the above suit. (Parties are referred to as in the original suit). The averments in the plaint in brief are as follows:-

The plaintiff is the son of the late Bhaskaran, 5th defendant is his mother and defendants 1 to 4 are his sisters. The sid Bhaskaran died on 07.03.2009. Plaint A schedule is the immovable property and B schedule is the amount deposited (Rs.9 lakhs) in the Bank by the said Bhaskaran. Plaintiff and defendants are governed by the Hindu Succession Act. According to the plaintiff he is entitled to get 1/6th share over the plaint A and B schedule properties. The plaintiff and defendants are in joint possession of the immovable property. He demanded partition, but the defendants were not agreeable to effect partition according to the law of succession and this situation necessitated the suit for partition.

3. Defendants 1 to 5 filed written statement admitting defendants claim for partition over ‘A’ schedule property but denied the claim for partition over ‘B’ schedule property, stating that 5th defendant alone has right over ‘B’ schedule deposit as she is the nominee appointed by Bhaskaran in the Bank. According to them 5th defendant alone has right over ‘B’ schedule and the amount is not partible.

4. After trial, the suit decreed as prayed for. With respect to ‘B’ schedule Bank deposit the court below considered the point whether the Bank deposit for which nominee was appointed is partible in accordance with law of succession among the whole legal heirs. Relying on the decisions in Smt. Sabarbati Devi v. Ushadevi (AIR 1984 SC 3246), Vishnu N. Khandchaudari v. Vidya Lachmandas Knanchandini (AIR 2000 SC 2747), Safiaya Usman v. Habeebah (2005 (1) KLT SN 84, Shipra Sengupta v. Mridul Sengapta and Others (2009 (10) SCC 680), the court below rightly held that the status of nominee to a bank deposit is an agent only, to receive the amount from the bank; such amount so received should form a part of the estate of the deceased and should be subject to lawful succession applicable to him. As far as legal heirs of the deceased are concerned, the nominee is only a trustee and all legal heirs have right of succession in accordance with law. The nominee is having a priority to receive the amount from the Bank; but all legal heirs have the right to claim their share as per the right of succession to the estate of the account holder. The nominee is accountable to all legal heirs.

5. Though, neither pleaded nor prayed for in the plaint, at the time of hearing the plaintiff claimed his share in the interest accrued on the fixed deposit also. But the court below declined the claim for interest on the ground of the lack of pleadings and specific prayer. Aggrieved by the denial of interest, this appeal is filed by the plaintiff on various grounds.

6. We heard Shri. Biju Abraham, the learned counsel for the appellant/plaintiff and Shri. K.M. Firoz, the learned counsel for respondents/defendants. The learned counsel for the plaintiff submitted that the lower court has erred in declining 1/6th share of the interest accrued on the fixed deposit. According to the learned counsel, no prayer for interest is one which automatically accrued on the deposit. Since the subject matter of the ‘B’ schedule is the term deposit which carried interest, no relief need be claimed specifically for interest. Even in the absence of specific prayer for interest, the lower court ought to have passed decree granting share in the interest, under Order VII Rule 7 of the Code of Civil Procedure, runs the argument.

7. We have consi