1. This second appeal raises a question as to the court-fee payable on the plaint. There is no doubt room for some suspicion that the plaint has been so drafted as to avoid inconvenient facts and make it appear that it is not necessary to pay a higher court-fee than the plaintiff paid in the first instance. But I do not think that even such a suspicion will justify the departure from the well-established principle that for purposes of the calculation of court-fee, the Court must take the allegations in the plaint to be prima facie correct.
2. On the pleadings in the case, I think a distinction ought to have been drawn between the properties which have admittedly been alienated by the first defendant and properties which are in his possession in his own right. So far as the former set of properties is concerned, the plaintiff cannot claim to treat the alienee's possession as the possession of a co-tenant and for this purpose it can make no distinction even if physical possession of such properties happens to be with the first defendant himself as the result of any arrangement between the first defendant and the alienees. But as regards the properties which have not been alienated by the first defendant I am not able to agree in the view taken by the Courts below, because in paragraphs 5 and 6 of the plaint there is a distinct allegation that the first defendant has all along been giving either 15 kottahsor 11 1/4 kattahs of paddy as representing the share of the income due to the plaintiffs predecessor in title and to the plaintiff.
3. As regards the documents referred to in paragraphs 8 and 9 of the plaint, the Court must leave it to the plaintiff to decide whether or not she is prepared to take the risk of insisting on proceeding with the suit without a prayer to have them set aside. If she is right in her contention that they are totally inoperative and they may be ignored, there is no reason for calling on her to pay any court-fee in respect of an implied prayer relating to them. If on the other hand it turns out that without getting them set aside the plaintiff cannot succeed in this suit she takes the risk of the suit failing having so framed the plaint as not to ask for necessary declarations.
4. In the circumstances of the case I can only say that any Court will be justified in refusing to show any indulgence to the plaintiff if later on the plaintiff prays for any amendment of the plaint according to eventualities.
5. As matters now stand, the plaintiff is entitled to insist that the court-fee should be assessed on the basis on which she has framed her plaint. I must therefore set aside the orders of the Courts below and send the case back to the trial Court with directions to receive the plaint on payment of court-fee under Article 17-B of the second schedule, so far as the unalienated properties in the possession of the first defendant are concerned and on payment of court-fee under Clause 5 of Section 7 in respect of the plaintiff's share of the properties which have been alienated by the first defendant.
6. Mr. Venkatarama Aiyar contends that even in respect of the alienated properties, the plaintiff should not be called upon in the first instance to pay court-fee under Clause 5 because it may be possible finally to allow the alienees to remain in possession of those properties by allotting them to the share of the alienor. I do not think that this consideration can be taken into account in dealing with the question of court-fee. The proper basis is that the plaintiff asks for possession from the alienee but the alienee may in certain circumstances have an equitable right to ask the Court so as to work out the partition as to leave him if possible in possession of the alienated properties.
7. In this view I cannot accede to Mr. Venkatarama Aiyar's contention that Clause 5 ought not to be applied to any part of the plaintiff's claim. The trial Court will with all convenient speed assess the court-fee payable on the plaint on the above basis. Costs of the second appeal and of the appeal to the lower appellate Court will abide the result of the suit in the trial Court. The court-fee paid on the memorandum of appeal to the lower appellate Court and on the memorandum of second appeal here will be refunded.