J.K. Misra, J.
1. The petitioners are the plaintiffs in T.S. No, 19 of 1956 in the Court of the Subordinate Judge, Berhampur. That suit is one for partition of a joint ancestral house belonging to the plaintiffs and defendants 1 to 4. Defendant No. 1 is the father of the plaintiffs, and defendant No. 2is the brother of the latter. Defendant No, 3 is the son of defendant No. 2 and defendant No. 4 is the mother of defendants Nos. 1 and 2. According, to the plaintiffs, they have got 5/18 share in that house, defendant No. 1 has got 1/18 share, each of defendants 2 and 3 has got 3/18 share, and defendant No. 4 has got 6/18 share. There was a money suit (No. 15 of 1949) against the deceased grandfather of the plaintiff and defendants 1 and 2, and. in execution of the decree in the said suit by defendant No. 5 (E. P. No. 34 of 1952), the suit house was attached and put to auction sale. Defendant No. 6 purchased the said house in auction sale and deposited the sale proceeds, and before the sale was confirmed, the present suit by the plaintiffs was instituted for partition. Defendants 6 to 9 were other creditors who had got money decrees against defendants 1 and 2, and they advanced their claims for rateable distribution in the aforesaid execution, proceeding.
The plaintiffs' case in the plaint, in substance, was that the decretal debts of defendants 5 to 9 against defendants 1 and 2 were not for the benefit of the family or any legal necessity; and that they were immoral debts, and as such not binding on the plaintiffs, and so the plaintiffs were entitled to a partition of their share of the attached house. In the relief portion of the plaint, no declaration was sought for in respect of any of those decretal debts. Claiming that the plaintiffs were still in possession, of the ancestral house, they paid court-fee in the suit, as payable in a partition suit. There was no issue raised as to the insufficiency of court-fee paid in the case. But at the commencement of the hearing, the learned trial court took the view,
'I find that the suit in substance is to avoid, the decree passed in M. S. 15 of 1949 .....The suitcannot be considered to be for a mere partition of the plaint schedule properties . ...The plaintiffsare bound to pay a set of declaratory court fee of Rs. 150/-. ......In case the plaintiffs really desireto attack other decrees, referred to in the plaint. . . They have to pay one set of declaratory court fee for each decree in question'.
It is against this order of the court, the plaintiffs have come up in revision.
2. A preliminary objection was taken that since the plaintiffs moved the trial court for reviewing the said order and the review petition was pending before that court, a petition in revision was not maintainable. Section 115, C.P.C. does not permit revision only in those cases in which appeal lies, and the filing of a reviewing petition does not take away parties' right to invoke the court's power under Section 115, C.P.C. So, the preliminary objection is of no substance.
3. Now coming to the merit of the case, it may be stated at the outset that, in the reliefs claimed in the plaint, the plaintiffs claimed no relief in respect of the decrees, which they referred to in the pleading, and the relief claimed was confined only to partition of the house to their respective shares. Though in the pleading they averred that those decrees, for one of which the house had been attached and for the other of which rateable distribution had been claimed, were not binding on them, and as such they were entitled to their share of the house irrespective of those decrees, there was no prayer for any declaration that the decrees were not binding on them. It was observed in Ramakhelwan Sahu v. Bir Surendra Sahi, AIR 1938 Pat 22 (FB).
'It is not in the least necessary for the plaintiff in a suit for possession to claim a declaration. Indeed declarations in the true sense are rarely required. The plaintiff should only allege the facts necessary to establish his title and that the defendant is wrongfully in possession. If he goes on to claim in the manner so beloved of pleaders, a declaration of title in addition to an order for possession, the court may and should treat the case as a claim for possession pure and simple, and ignore entirely the claim for a declaration of title.'
In Ramaswami v. Rangachariar, AIR 1940 Mad 113 (F. B.) their Lordships held,
'Where a minor in a suit for partition against his father challenges the validity of transactions entered into by his father as manager of the family, he must pay court fee in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the realnature of the suit and decide what the plaintiff isasking for .............Therefore where the plaintiff in effect asks in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated, he must pay court-fee in respect of such transactions. ....... Wherea minor sues for partition of joint family propertyand cancellation of simple money decrees passedagainst him in suits in which he had been so nominee impleaded as a party, he must pay the fee prescribed by Section 7(iv)(a) in respect of such decrees. Such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them.
It makes no difference that the plaintiff is a minor or a junior member of the family, as the considerations which apply to the decree of a competent court once it is passed, are essentially different from those applicable to the transactions of a party. The plaintiff must be held to have impliedly asked for cancellation of the decrees passed against him and must accordingly stamp his plaint .........In respect of alienations by father to whichthe minor was not be nominee a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation, as the prayer is for a purely incidental but unnecessary relief. When there is no such prayer there is no jurisdiction for implying them and then demanding a fee for it.
There is no force in the argument that the position is altered by the joinder in the suit of the parties to the transactions who are interested in supporting them. Whether they are before the Court or not, the Court is bound as between the members of the family to decide which are the debts binding on the family, before directing division. The presence of the third parties would no doubt invest the decision with finality; but this cannot be regarded as a ground for reading into the plaint a prayer which the member suing is not obliged to seek under the law in the face of the provision in Order 1, Rule 10(2), C.P.C. By impleading several creditors, the plaintiff cannot be deemed to have asked for declaration in respect of each of the transactions impugned, and therefore no separate court-fee as regards each one of them need be paid.'
It was held in Geeshpati Gurukul v. Subrahamanyam, 1936 Andh WR 553: (AIR 1957 Andh Pra. 955).
'When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no suchdocument or decree and even if there is a prayer in the suit for a declaration or cancellation, it could be ignored and court-fee need not be paid thereon.''
Similar views have also been taken in Pandurang Mangal v. Bhojalu Usanna, AIR 1949 Nag 37 and Laxminarayan v. Ram Sarup, AIR 1957 Madh Pra 173. No doubt, in Salahuddin Hyder Khan v. Dhanoo Lal, AIR 1945 Pat 421 it has been said that where a Mitakshara son seeks to set aside a decree upon a mortgage executed by his father and the sale held thereunder and then to obtain possession of the joint family estate, the suit cannot be held to be merely a suit for recovery of possession but for a declaration with consequential relief, whereas if a son seeks to recover the property which has been sold by the lather by a private sale, the son can ignore the sale and simply seek to recover possession of the property covered thereby, and in such a case he need not ask for a declaration and the suit can be treated to be declaratory suit with a consequential relief.
In this case, their Lordships have sought to make a distinction between a private sale by a father and a court sale following an alienation made by a father. In any case, in the present suit, a question of such type of distinction does not arise, and as a matter of fact, there has been no alienation of the suit property by defendants 1 and 2. There are only money decrees against defendants 1 and 2, in which none of the plaintiffs is so nominee a party and in execution of some of those decrees the suit property is going to be alienated.
4. In view of the decisions taken by different High Courts, and no authority cited to the contrary, 1 have no hesitation to hold that the plaintiffs are not required under law to pay any court fee for the incidental finding in the partition suit that their interest in the suit property could not be affected by any of those decrees.
5. In the result, the revision petition is allowed and the order passed by the learned trial Court, asking further court-fee from the plaintiffs, is set aside; but since there was no issue on the insufficiency of court fee and the question was taken by the Court at the time of hearing, each party to bear his own costs of this Court.