1. The only question arising for consideration in the second appeal: is whether the plaint has been properly valued and whether the requisite court-fee has been paid. The suit is by plaintiffs 1 to 4 who are members of the Nambudiri Illom. The second defendant is the karnavan and the suit is for redemption of a mortgage executed in favour cf one Vasudevan Somayajipad. Ex. D-1 is that mortgage and it was a possessory mortgage for Rs. 600. After the death of Vasudevan Somayajipad his son assigned it in favour of the first defendant in the suit. The second defendant karnavan executed the sale deed of the properties covered by the mortgage, Ex. D-1, in favour of the first defendant. That sale deed is Ex, D-2 dated 14th January, 1937. Under that document he purported to act on behalf of himself as karnavan, of the illom and also as guardian of his minor daughter the third plaintiff in the suit. Ex. D-2 purports to be executed by plaintiffs 1 and 2 as well who are the mother and wife of the second defendant. In their plaint in the present suit the plaintiffs asked for redemption of the mortgage Ex. D-1 and attacked Ex. D-2 the sale deed as not binding upon them. For plaintiffs; 1 and 2 it is said that they were not parties to the document, that they did not execute the sale deed, that the signatures found on that document are not theirs and that they have been forged. As regards the third plaintiff it is said that the document is not binding on her. The fourth plaintiff was not represented in the document as he was born subsequently. The lower Courts have held that in fact the suit is for setting aside the alienations made by the second defendant and directed the appellants to value the suit as one fcr cancellation of Ex. D-2, and pay court-fee thereon. That order not having been complied with the plaint was rejected on the ground that the plaint was not properly stamped. On appeal the Subordinate Judge confirmed the order of rejection by the trial Court and hence the second appeal. So far as plaintiffs 1 and 2 are concerned it is clear that they cannot be asked to amend the plaint by asking for cancellation of Ex. D-2 and pay court-fee thereon. It has been held by this Court in Ramaswami v. Rangachariar : AIR1940Mad118 that it is not necessary for persons who are net parties to the document to ask for cancellation, of the document.
The other transactions of the first defendant, whether the plaintiff is made a party there to or not, stand on a different footing. He is rot bound under the substantive law by which he is governed, to sue for a declaration or cancellation in respect of any of them. The legal position has been correctly explained in Unni v. Kunchi Amma I.L.R. (1890)Mad. 26 in the, following words which, were taken from an unreported decision of this Court:
If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist'...In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good, reason for holding it to be one for a purely incidental, but unnecessary relief. As I have indicated there is no such prayer in the plaint and in the light of the principles explained there is no justification for implying them and then demanding a fee for it.
The order of the lower Court directing plaintiffs 1 and 2 to amend the plaint by asking a declaration that the sale deed Ex. D-9, is not binding upon them is obviously untenable. As regards the third plaintiff however she was represented in the document by her legal guardian. In such cases it has been held in Pvtta Venkata-krishnayya v. Sheik Ali Sahib and Ors. (1938) 48 L.W. 277, that she is bound to ask for cancellation of the document and also pay court-fee on her share of the properties covered by the document.
2. The decrees of the lower Courts are therefore set aside and the suit is remanded to the trial Court with the following directions.
3. If the plaintiffs wish to retain third plaintiff as a plaintiff in the suit then they must amend the plaint by asking for cancellation of Ex. D-2 as regards the third plaintiff's share and pay courtrfees under Section 7, Clause (iv-A) of the Court-Fees; Act on the share of the third plaintiff in the properties covered by Ex. D-2. Four weeks time will be allowed for this purpose from the date of reopening of the Court after summer holidays but if the third plaintiff is not prepared to pay Court-fee required for cancellation then they are given liberty to ask for the amendment of the plaint by transposing the third plaintiff as a defendant. The suit will in any event proceed as regards plaintiffs 1, 2 and 4. The costs of the parties incurred here and in the lower appellate Court will be provided for in the revised decree of the trial Court. The court-fee paid on the memorandum of second appeal and the memorandum of appeal in the lower appellate Court will be refunded.
4. Leave to appeal is refused.