Balakrishna Ayyar, J.
1. This is a petn to revise the order of the Dist J, Bellary calling upon the petnrs to pay additional courts-fee.
2. The suit was for partition. The pltfs are the sons of deft 1. Deft 2 is an alienee of some of the joint family properties from deft 1 under a sale deed dated 10-7-1943. In respect of this alienation it is alleged in the plaint that the alienee, viz., deft 2 is not in possession of the properties alienated to him & that they continue to be in the possession & enjoyment of the family. It is also alleged that the sale 'is not true, genuine, valid or binding on the pltfs share of the properties', that there was no legal necessity for the sale, that the family derived no benefit by the sale, that the transaction
'is void, inoperative & invalid' so far as the pltfs are concerned, & that the document of sale is 'sham, fictitious & collusive & cannot bind the share of the pltfs'.
The pltfs did not pay any separate court-fee in respect of this alienation. The Ct-fee examiner took the view that the properties sold to deft 2 must, notwithstanding the allegation in the plaint that they are in the possession of the joint family, be deemed to be in the possession of the family only on behalf of the alienee & that therefore Ct-fee should be paid as for recovery of possession. He purported to found his objection on the decision in 'Parakala Rao v. Subba Rao : (1946)1MLJ411 . The learned Dist J. upheld this objection of the Ct-fee examiner & called upon the pltfs to pay additional Ct-fee. They now seek to have the order vacated.
3. Mr. Ramanarasu, the learned counsel for the petnrs, referred me to the F. B. decision in 'Ramaswami v. Rangachariar', ILR (1940) Mad 259: AIR 1940 Mad 113 . That was a case in which as many as 19 different transactions were attacked. By virtue of some of those transactions possession of the properties had been given to the alienees. To some of the other transactions the pltf thereon was 'eo nomine' a party. In some other transactions, though the alienation was by the manager of the family the pltf was not 'eo nomine' a party, & it was alleged in the plaint that the property continued to be in the possession of the family. In respect of this third class of cases the Ct held that separate Ct-fee was not payable. The learned Chief Justice who delivered the judgment of the majority of the Bench observed:
'In such cases even if the plaint contains a prayer for declaration or cancellation, there is good reason for holding it to be one for a purely identical, but unnecessary, relief. As I have indicated there is no such prayer in the plaint & in the light of the principles explained there is no justification for implying them & then demanding a fee for it. Nor can I see any 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.... ....I am unable therefore toappreciate the argument that, by reason of his impleading the several creditors, the pltf must be deemed to have asked for declarations in respect of each of the transactions impugned & must pay a separate Ct-fee as regards each one of them.'
The case before me falls within the scope of these osbervations & no separate Ct-fee would therefore be payable.
4. On behalf of the learned Govt. Pleader it was argued that when the pltfs made the various allegations in respect of this alienation which has been summarised above they were albeit indirectly in effect, & substance, asking for a declaration that the sale deed executed by their father did not bind them & that therefore they should be required to pay Ct-fee on it. There is a good deal to be said for this point of view. It is also the view which Abdur Rahman J. who dissented on this point from the rest of his colleagues in the F. B., took in the above case; but he was in a minority of one, & as the decision of the P. B. holds the field, I must follow it. On behalf of the Govt reliance was placed on 'Parakala Rao v. Subba Rao : (1946)1MLJ411 , a decision on the strength of which the Ct-fee examiner raised his objection. In that case the pltfs sued for partition & possession of joint family properties. The alienees of some of the joint family properties were impleaded as defts. The pltfs averred that their father & othershad fraudulently executed deeds purporting to alienate the family properties & they also said that notwithstanding those alienations they & their father were in joint possession of the properties. Nevertheless, Happell, J. who heard that case decided that in respect of the properties which had been alienated Ct-fee was payable, as though the pltfs had asked for their possession. He gave this reason for his view:
'In the present case, however, the pltfs have given no particulars as to the alienations, & as the Ct-fee Examiner has pointed out, in the absence of such particulars deft I must be deemed to be in possession on behalf of the alienees. That being so, the pltfs cannot be regarded as being in joint possession, & Ct-fee has to be paid under Section 7(v).'
With great respect I am unable to understand how the alienor can be or must be deemed to be in possession on behalf of the alienees. He was not their servant or their agent or their lessee. He was not a coparcener with them nor a co-owner. After the alienation had been effected, there was absolutely no jural bond between deft 1 & the alienees. Notwithstanding the attempt of the learned Judge to bring his decision into line with 'Ramaswami v. Ranga-chariar', ILR (1940) Mad 259: AIR 1940 Mad 113 . I consider that it is really at variance with that decision. Following the F. B. case I hold that no extra court-fee is payable in respect of the alienation in question.
5. The revn petn is therefore allowed withcosts against the Govt.