The question that arises in this revision petition is one of pecuniary jurisdiction. It is conceded that if section 7(iv-A) of the Court-Fees Act applies to the relief claimed in the plaint, the District Munsiff’s Court of Salem, will have no jurisdiction to entertain the suit.

The suit was for partition of the properties by metes and bounds into four equal shares and for the allotment of three such shares to the plaintiffs. It is alleged in the plaint that the properties described therein were the ancestral properties of the plaintiffs and their father, the first defendant. The first defendant had executed a mortgage in respect of the said properties in favour of the second defendant for Rs. 2,320. The first defendant being addicted to bad habits, was prevailed upon to execute a sale deed on 22nd January, 1937, for discharging the mortgage debt and other fictitious considerations recited in the sale. It is also stated that there was no necessity to alienate the entire property as the mortgage debt could have been discharged by selling a one-fourth part of the properties. It is also alleged in the plaint that the plaintiffs were willing to pay their share of the mortgage amount due to the second defendant if the Court found that the shares of the plaintiffs also should pay up the mortgage proportionately. The plaint also discloses that immediately the plaintiffs came to know of the alienation a year back, they called upon defendants 2 and 3 to give back the lands to them. It will therefore be seen that the suit is a simple suit for partition by members of a joint Hindu family and for possession of their shares after electing to treat the said sale as not binding on them.

The plaintiffs valued the suit under section 7(v) of the Court-Fees Act at Rs. 62-5-6 and have given the same valuation for purpose of jurisdiction also. The defendants contended in the lower Court that the plaintiffs should have asked for the cancellation of the sale deed and paid court-fees under section 7(iv-A) of the Court-Fees Act. If that section applied, as the market value of the suit property was beyond the pecuniary jurisdiction of the District Munsiff’s Court the plaint should be returned for presentation in the proper Court. The learned District Munsiff rejected this contention relying upon the decision in Ramaswami v. Rangachariar1.

Learned counsel for the petitioners contended that section 7(iv-A) of the Court-Fees Act applies to the reliefs claimed in the plaint. He made a distinction between a case where the plaintiff alleges that a sale deed is not supported by consideration at all and a case where he admits the binding nature of at least a part of the consideration. Basing on that distinction he argued that as in the present case the binding nature of the mortgage is not questioned by the plaintiffs and as they have also indicated their intention to redeem a proportionate share of the mortgage amount, they are bound to ask for a cancellation of the sale deed. In support of his contentions he relied upon the decisions in Malkarjun v. Narhari2 and Ganpat La1 v. Bindabasini Prasad Narayan Singh3. In Malkarjun v. Narhari2 the Court refused redemption of a mortgage to the plaintiff on the ground that the properties were sold in execution of a decree. The sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor’s estate. Their Lordships held that the decree was not a nullity and it was necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage. That decision does not in any way support the distinction sought to be made by the learned counsel for the petitioners. The question of court-fee or of pecuniary jurisdiction did not arise for decision in that case. The decision in Ganpat La1 v. Bindabasini Prasad Narayan Singh3 is also that of the Judicial Committee. In that case a decree was made on the 20th January, 1902, in ex