G.C. Das, J.
1. This petition is by the plaintiffs against an order of the learned Subordinate Judge of Balasore, calling upon them to pay additional court-fee.
2. The facts are these. Plaintiffs filed a suit for partition each claiming one-fifth share in the joint family properties. According to them, their father, defendant No. 1, had alienated certain properties in the name of some of the defendants. They further stated that the several deeds of alienations were not acted upon and accordingly theypaid a court-fee of Rs. 150/- as required in a pure suit for partition. The value of the properties involved is Rs. 1,69,285.64 nP. The peripatetic stamp reporter after a closer examination of the plaint reported that the plaintiffs were liable to pay court-fee under Section 7(iv)(c) of the Court-fees Act in respect of the properties covered under various alienations, because according to him the properties covered by the transfers' cannot be partitioned unless the transfers are set aside. The learned Subordinate Judge came to the conclusion that the plaintiff must separately value the properties covered by various transfer-deeds as also the property allotted to defendant 2 in the previous partition-deed and must pay ad valorem court-fee on the value of their shares therein. It is against this order that the present Civil Revision is directed.
3. Mr. R.N. Misra, learned counsel on behalf of the plaintiffs-petitioners, contended that the question whether or not additional court-fee is payable by the plaintiffs must be decided on the allegations as made in the plaint. It was open to the trial Judge to negative the relief if ultimately he found the allegations made in the plaint were incorrect. According to the plaintiffs, the parties are in possession and the alienations have not been given effect to. Hence the trial Judge had no jurisdiction to call upon the plaintiffs to pay additional court-fee.
4. In the plaint it is stated that through undue influence of defendant No. 1, some items of the properties belonging to the joint-family which stood in the name of defendant-2 were shown in that partition deed to have been allotted to him, although there was no reason or justification for the same. Further, it was stated that defendant-1 who is now more than 95 years old has been under the undue influence of defendant No. 2 and is acting to the detriment of the interests of the joint family and wasting the family property and the joint family funds which are with him. The deeds of transfer executed by him in favour of the defendants are fraudulent, nominal, void and without any consideration or legal necessity. The deeds of gift executed by defendant No. 1 in favour of defendant-4 and the deed, of settlement in the name of defen-dant-5 and the deeds of endorsement in favour of defendants 7 and 8 making them marfatdars are invalid and have not been acted upon. Defendant No. 5 who is only thirty years old is not the married wife of defendant 1.
Eventually, it was stated that all those documents of transfer have been made with the sole view of depriving the plaintiffs of their legitimate shares in the family property and that the said documents have not been acted upon. Mr. Misra relied upon certain decisions in support of his contentions. The test in all these cases is whether the plaintiff was a party to the proceeding or to the document so that he may pray for the relief to set aside the documents. On the other hand if the documents have not been acted upon and are initially illegal and void, the plaintiff need not necessarily claim a relief for setting aside those documents.
In the case of Rehanna Basanna v. Adeppa, AIR 1951 Mad 732, the Madras High Court tookthe view that the possession of family could not be deemed to be on behalf of the alienee and in the absence of any prayer for declaration in respect of the alienation no separate court-fee was payable in respect of the alienation in addition to that payable on the relief for partition. The facts in that case were that the plaintiff brought a suit for partition of the joint family property against his father imp-leading an alienee of a portion of tile family properties under a sale-deed executed by the father. It was alleged that the alienated property continued to be in possession of the family in spite of the alienation and that the sale deed was sham, void and inoperative so far as the plaintiff was concerned.
In the case of Laxminarayan v. Ram Sarup, AIR 1957 Madh-Pra. 173, the Madhya Pradesh High Court held that where the son brought a suit contending, in effect and substance, that the alienation made by his father was not binding on him and that therefore a declaration, as to his title and, possession of the property in his own right and as to the non-executability of the decree passed an the suit against his father alone on the basis of the mortgage, against his interest, should be made, the suit was for a pure declaration in which no consequential relief was involved and ad valorem court-fee was not payable under Section 7(iv)(c) of the Court-fees Act, but a fixed court-fee was payable under Article 17(iii) Schedule 2 of the Act. The earlier decision of the Madras High Court in AIR 1951 Mad 732 referred to above, followed the Full Bench decision of that Court reported in Rama-swami Ayyangar v. Rangachariar, AIR 1940 Mad 113.
In the case of Geeshpati Gurukul v. Subrah-manyam, AIR 1957 Andh Pra. 955, the Andhra Pradesh High Court following the principle as laid down in AIR 1940 Mad 113 (FB) held that a suit by a coparcener for declaration that the decree for partition obtained by a widow of his brother against his father without making him a party is not binding on him and for partition of the plaint properties into two equal shares is properly governed by Arts. 17-A and 17-B of Schedule II, Madras. The plaintiff who is not eo nomine party to the suit, is not required to have the decree set aside. He can very well ignore the decree and ask for partition of the decree. Even if he had asked for a declaration that the decree would not bind him, it would be unnecessary relief, and therefore Section 7(iv)(a) (Madras) is not applicable to the case. ;In the instant case, the plaintiffs were not parties to the various alienations complained of in the plaint. Their definite case in the plaint was that these alienations were not acted upon and were fraudulently made. In view of the Andhra Pradesh decision cited above, they are entitled to ignore the same.
It was contended on behalf of the opposite parties that if the plaintiff made the averments that the documents were made under undue influence and fraud, they would be voidable but not void. It was further contended that since there has been a transfer, the plaintiffs are bound to set aside that transfer before they can claim a partition. I cannot, however, accept this argument in view of the settled principles of law. All the above cases wereconsidered by this court in the case of T. Viswa-nadham v. T. Narayanamurthy, 26 Cut LT 106: (AIR 1.960J Orissa 153). Misra, J. in that case after having considered all the above decisions, came to the conclusion that where property which is the subject-matter of a suit for partition was attached in execution of a decree against the grand-father of the plaintiffs and though the decree was attacked in the plaint and averred to be not binding against the plaintiffs who are some of the members of the Joint family, no further court-fee is payable for the incidental finding that the decree is not binding.
5. Mr. Dasgupta on behalf of the opposite parties sought to rely upon a decision of the Patna High Court in Nokelal Jha v. Smt. Rajeshwari Kuinari, AIR 1937 Pat 141, which was considered by a later Full Bench of that Court in Ramkhela-wan Sahu v. Surenda Sahi, AIR 1938 Pat 22 and that decision is in line with the decisions referred to by me above. It was further argued by Mr. Dasgupta that the school of law referred to in these cases is different from the present one. But that does not make any difference in principle. Accordingly, in view of this position in law, the order of the learned Subordinate Judge must be set aside and the suit must proceed on the court-fee as has been paid on the plaint.
6. In the result the application is allowed; the Rule is made absolute with costs. Hearing fee Rs. 15/-.