1. This petition relates to the Court-fee payable in respect of a suit for partition. The plaintiffs-petitioners filed O.S. No. 113 of 1944 in the Subordinate Judge's Court of Ellore for partition and impleaded eight persons as defendants. The first defendant is their father, the second defendant the mother of the first defendant, the third defendant sister of the first, the fourth defendant the husband of the deceased sister of the first defendant and defendants 5 to 8 are alleged to be alienees in respect of properties belonging to the family. In paragraph 3 of the plaint, it is stated that defendants 1 to 3 had been creating documents in collusion which alienated joint family properties, but that the properties had remained in the joint possession of the plaintiffs and the first defendant. It is also. asserted in this paragraph that any decrees obtained against the first defendant alone could not be enforced against the plaintiffs' interests in the joint family properties. The actual reliefs prayed for were a direction for the partition of the A, B and O schedule properties into three shares and the allotment of two of them to the plaintiffs and future mesne profits from the date of the plaint till delivery of possession. A fee of Rs. 100 was paid under Article 17-B of Schedule II of the Court-fees Act. The Court-fee examiner was of opinion that the plaint had been undervalued and that Court-fee had to be paid under Section 7 (v) of the Act on the footing that even if the properties remained in the possession of the first defendant they must be deemed to be held by him on behalf of the alienees and not on behalf of the plaintiffs and that Court-fee under Rule 2 of the Rules framed under Section 9 of the Suits Valuation Act and published in Civil Rules of Practice and G.O. Volume I, page 218, as item6 had also to be paidin respect of decrees obtained by strangers against the father. The learned Subordinate Judge, in the order which is now the subject matter of this revision petition, has merely adopted the report of the Court-fee Examiner. He states that he agrees with the objections taken by the Court-fee Examiner and that if the plaintiffs do not want any relief in respect of the alienations and decrees the alienees and the decree-holders impleaded as parties may be given up, otherwise the Court-fee demanded must be paid.
2. It is argued for the petitioners that the consolidated Court-fee of Rs. 100 which has been paid is the correct Court-fee in accordance with the decision of the Full Bench of this Court in Ramaswami Aiyangar v. Rangachariar : AIR1940Mad118 , since (1) as laid down in that case in a suit for partition Court-fee has to be paid only under Article 17-B of Schedule II where, as in this case, the plaintiffs are in joint possession of the family properties, Section 7 (v) being applicable only where the plaintiff is seeking relief in respect of possession when he is out of possession and since (2) as also laid down, a plaintiff has not to pay Court-fee for the cancellation of a decree unless he was eo nomine a party to the suit in which the decree was passed.
3. The Court-fee Examiner whose report has been adopted by the Subordinate Judge has not overlooked the decision of the Full Bench in Ramaswami Aiyangar v. Rangachariar : AIR1940Mad118 and it is begging the question to say that a Court-fee is not payable in respect of the recovery of possession of the property alienated because the plaintiffs have remained in joint possession of the properties. What was laid down by the Full Bench was that as far as the general relief in a suit for partition was concerned, Article 17-B of Schedule II was applicable when the plaintiffs were in joint possession and that it was not necessary for the plaintiffs to pay Court-fee as for recovery of possession. In the present case, however, the plaintiffs have given no particulars as to the alienations and as the Court-fee Examiner has pointed out, in the absence of such particulars the first defendant must be deemed to be in possession on behalf of the alienees. That being so, the plaintiffs cannot be regarded as being in joint possession and Court-fee has to be paid under Section 7 (v).
4. As regards the question whether any Court-fee is payable in respect of the decrees to which reference is made in paragraph 3 of the plaint, it was pointed out in Ramaswami Aiyangar v. Rangachari : AIR1940Mad118 , that a plaintiff must pay the fee prescribed by Section 7 (iv-A) in respect of decrees passed against him in a suit in which he has been eo nomine impleaded as a party, but that in cases where he has not been impleaded eo nomine he may be entitled to ignore the decree and pay no Court-fee as for its cancellation. The question was raised whether, even though the plaintiff has not been impleaded eo nomine, Court-fee must nonetheless be paid by reason of the amendment to the rules, the amendment referred to by the Court-fee Examiner, which has been published in Civil Rules of Practice and CO. Volume 1, page 218, as item 6. In my opinion, this amendment does not affect the ruling of the Full Bench. If the plaintiff is entitled to ignore the decree he is not asking for the decree to be cancelled and so the rule does not apply. The question in each case is whether he is entitled to ignore the decree. I have been referred to a decision of Horwill, J., in Battripadv.Neelakandan 2 and it was suggested that Horwill,J., in his judgment has not followed the Full Bench decision in Ramaswami Aiyangar v. Rangachari : AIR1940Mad118 , because of the amendment to the rules referred to above. Horwill, J., however, in his judgment does not refer to the rules. What he said was that cases where the decree was against the karnavan of a tarwad in his representative capacity or against the manager of a joint Hindu family as such were not covered by the Full Bench decision. In such cases, in his opinion, the effect from the point of view of the Court-fee payable would be the same as a decree against a member of the joint family eo nomine. I respectfully agree with the view taken by Horwill, J. A decree against the manager of a joint family as such pritria facie affects the shares of all the members and a member cannot claim the whole of his share until he has got rid of the decree. In the present case full particulars have not been supplied by the plaintiff, but on the information available his share is prima facie affected by the decree and he must pay Court-fee as directed.
5. The petition is dismissed with costs.