This appeal arises out of a suit filed originally by one Dharmaraju 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, transposed 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.

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 p6ssession 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 po