1. This appeal arises out of a suit filed originally by one Dharma-raju as the sole plaintiff for partition of properties set out in schedule A to E to the plaint and for separate possession, of a fourth share therein. Dharmaraju is one of the sons of the first defendant, defendants 2, 3 and 4 being the other sons. The suit was valued for purposes of jurisdiction at Rs. 5,100 but a Court fee of Rs. 100 was paid as the proper Court-fee on the plaint praying for partition of the family property by a member of the family. Subsequently Dharmaraju purported to convey his interest in the family properties to his father-in-law, who is the appellant before us, by a deed dated 19th August, 1940. The appellant thereupon filed I. A. No. 862 of 1940, to be impleaded as an additional plaintiff. This application was not opposed by Dharmaraju and was ordered on 10th October, 1940. The appellant was brought on record as the second plaintiff and Dharmaraju was described as the first plaintiff. The third defendant was, sometime later, trans-posed as third plaintiff. Eventually before the trial commenced there was a change of attitude on the part of the first plaintiff who apparently had fallen out with his father-in-law and joined his father, the first defendant. On the 27th October, 1943, he made an endorsement on the list of documents consenting to abide by the partition of 1940 which had been set up by the first defendant. Even prior to this date the first plaintiff had filed an application I. A. No. 375 of 1942 to strike off the name of the second plaintiff alleging that by undue influence he had obtained the assignment from him. That petition was dismissed by the learned Subordinate Judge and the dismissal was confirmed by this Court in revision. The second plaintiff therefore continued to remain as a plaintiff.
2. It cannot be denied and it is not disputed that the plaint as originally framed was properly valued and proper Court-fee had been paid on it. The mere fact that during the pendency of the suit the transferee from the first plaintiff was also added as an additional plaintiff would not, in our opinion, entail additional Court-fee on the ground that the alienee was not a person in joint possession of the suit properties along with the defendants. But when the first plaintiff decided not to prosecute the suit as originally laid by him and finally allowed himself to be transposed as a defendant on 27th October, 1943, clearly the nature of the suit became altered in a material degree. It ceased to be a suit for partition by one co-parcener against the other co-parceners. It became a suit by a person claiming to be an alienee from a coparcener for partition against the other members of the family. The alienee could in no sense be described as a person in joint possession actually or even constructively along with the other members of the family. From the moment the first plaintiff ceased to be on record as a plaintiff we are of opinion that the suit must be regarded as a suit by the second plaintiff as an alienee and as alienee he would not be entitled to the benefit of the special provision as regards Court-fee applicable to a coparcener in joint possession with other coparceners. The proper course which must have been adopted by the learned Subordinate Judge was immediately on the transposition of the first plaintiff as defendant, to call upon the second plaintiff to pay ad valorem Court-fee on the share of properties which he was claiming. This course was unfortunately not followed. On the other hand what the learned Judge did was to dismiss the suit on the merits and to direct at the end of the judgment the second plaintiff to pay additional Court-fee within one month from the date of judgment and in default that the plaint would stand rejected on that ground. There is no warrant for this procedure, but as the case has come up before us in appeal, Section 12, Sub-section (ii) of the Court-fees Act confers on this Court ample power to set right any mistake in procedure. The second plaintiff is the appellant before us and as we have held that the proper Court-fee which he ought to have paid is the Court-fee calculated under Section 7, Clause (v) of the Court-fees Act, we direct that he should pay court-fee calculated accordingly both on the plaint and on the memorandum of appeal to this Court, within two months from this date. In default not only will this appeal be rejected but the plaint will also likewise be rejected as not bearing the proper Court-fee as far as the second plaintiff is concerned.
3. The third plaintiff was originally the third defendant in the case. He is one of the sons of the first defendant and admittedly a member of the family. In his written statement he prayed that his share may separately be allotted to him. Subsequently he was transposed as the third plaintiff and after the transposition consequential amendments were made in the plaint. According to him he became divided in status in March 1934, and demanded partition but the first defendant set up a false case that he had already taken his share out of the division which took place in 1931. In paragraph 6 of his written statement he stated as follows:
There was never any division in the family by which t-his defendant became divided nor has this defendant been in possession of any joint family properties except the house portion mentioned, which too was used for his separate residence on account of domestic disputes and not as a result of partition.
We are unable to see any allegation of ouster or exclusion from enjoyment of joint family properties either in the written statement or in the amendment to the plaint after the third defendant's transposition as third plaintiff. The fact that in paragraph 6 he refers to the case set up by the first defendant, which he describes as false and according to which the plaintiff was not entitled to any partition, does not amount to an allegation that he is out of possession of the family properties. In the absence of a definite allegation that he is completely out of possession we do not think that we shall be justified in directing him to pay Court-fee under Section 7, Clause (v) of the Court-fees Act. We consider that the Court-fee of Rs. 100 paid by him is proper. He has preferred a memorandum of objection to this Court and we hold that he has paid proper Court-fee on the memorandum of cross objections also.
4. As we have granted time to the appellant to pay additional court-fee we think it proper that the memorandum of cross-objections should be heard at the next adjournment along with the appeal.