Despite alienation of some of the properties of family possession remained with the family.

This is a petition to revise the order of the District Judge of Bellary calling upon the petitioners to pay additional court-fee.

The suit was for partition. The plaintiffs are the sons of the first defendant. The second defendant is an alienee of some of the joint family properties from the first defendant under a sale-deed dated, 10th July, 1943. In respect of this alienation it is alleged in the plaint that the alienee, viz., the second defendant is not in possession of the properties alienated to him and that they continue to be in the possession and enjoyment of the family. It is also alleged that the sale

“is not true, genuine, valid or binding on the plaintiff’s 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 and invalid” so far as the plaintiffs are concerned, and that the document of sale is “sham, fictitious and collusive and cannot bind the share of the plaintiffs”. The plaintiffs did not pay any separate court-fee in respect of this alienation. The court-fee examiner took the view that the properties sold to the second defendant 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 and that therefore court-fee should be paid as for recovery of possession. He purported to found his objection on the decision in Parakala Rao v. Subbarao1. The learned District Judge, upheld this objection of the court-fee examiner and called upon the plaintiffs to pay additional court-fee. They now seek to have the order vacated.

Mr. Ramanarasu, the learned advocate for the petitioners, referred me to the Full Bench decision in Ramaswami v. Rangachari2. 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 plaintiff therein was eo nomine a party. In some other transactions, though the alienation was by the manager of the family the plaintiff was not eo nomine a party, and 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 Court held that separate court-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 a 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 praver 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. Nor can I sec 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 to appreciate the argument that, by reason of his impleading the several creditors, the plaintiff must be deemed to have asked for declarations in respect of each of the transactions impugned and must pay a separate court-fee as regards each one of them.”

The case before me falls within the scope of these observations and no separate court-fee would therefore by payable.

On behalf of the learned Government Pleader it was argued that when the plaintiffs made the various allegations in respect of this alienation which have been summarised above they were albeit indirectly, in effect, and substance, asking for a declaration that the sale deed executed by their father did not bind them and that therefore they should be required to pay court-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 dissolved on this point from the rest of his colleagues in the Full Bench, took in the abov