In a suit for partition, the plaintiffs are not required to pay additional court-fee under Section 7 (iv) (c) of the Court-fees Act for an incidental finding that certain alienations of joint family property by the father were not acted upon and were fraudulently made.

G. C. DAS, J.

( 1 ) THIS petition is by the plaintiffs against an order of the learned Subordinate judge of Balasore, calling upon them to pay additional court-fee.

( 2 ) THE facts are these. Plaintiffs filed a suit for partition each claiming one-fifth share in the joint family properties. According to them, their father, defendant No. 1, had alienated certain properties in the name of some of the defendants. They further stated that the several deeds of alienations were not acted upon and accordingly they paid a court-fee of Rs. 150/- as required in a pure suit for partition. The value of the properties involved is Rs. 1,69,285. 64 np. The peripatetic stamp reporter after a closer examination of the plaint reported that the plaintiffs were liable to pay court-fee under Section 7 (iv) (c) of the Court-fees act in respect of the properties covered under various alienations, because according to him the properties covered by the transfers' cannot be partitioned unless the transfers are set aside. The learned Subordinate Judge came to the conclusion that the plaintiff must separately value the properties covered by various transfer-deeds as also the property allotted to defendant 2 in the previous partition-deed and must pay ad valorem court-fee on the value of their shares therein. It is against this order that the present Civil Revision is directed.

( 3 ) MR. R. N. Misra, learned counsel on behalf of the plaintiffs-petitioners, contended that the question whether or not additional court-fee is payable by the plaintiffs must be decided on the allegations as made in the plaint. It was open to the trial judge to negative the relief if ultimately he found the allegations made in the plaint were incorrect. According to the plaintiffs, the parties are in possession and the alienations have not been given effect to. Hence the trial Judge had no jurisdiction to call upon the plaintiffs to pay additional court-fee.

( 4 ) IN the plaint it is stated that through undue influence of defendant No. 1, some items of the properties belonging to the joint-family which stood in the name of defendant-2 were shown in that partition deed to have been allotted to him, although there was no reason or justification for the same. Further, it was stated that defendant-1 who is now more than 95 years old has been under the undue influence of defendant No. 2 and is acting to the detriment of the interests of the joint family and wasting the family property and the joint family funds which are with him. The deeds of transfer executed by him in favour of the defendants are fraudulent, nominal, void and without any consideration or legal necessity. The deeds of gift executed by defendant No. 1 in favour of defendant-4 and the deed, of settlement in the name of defen-dant-5 and the deeds of endorsement in favour of defendants 7 and 8 making them marfatdars are invalid and have not been acted upon. Defendant No. 5 who is only thirty years old is not the married wife of defendant 1. Eventually, it was stated that all those documents of transfer have been made with the sole view of depriving the plaintiffs of their legitimate shares in the family property and that the said documents have not been acted upon. Mr. Misra relied upon certain decisions in support of his contentions. The test in all these cases is whether the plaintiff was a party to the proceeding or to the document so that he may pray for the relief to set aside the documents. On the other hand if the documents have not been acted upon and are initially illegal and void, the plaintiff need not necessarily claim a relief for setting aside those documents. In the case of Rehanna Basanna v. Adeppa, AIR 1951 Mad 732, the Madras High court took the view that the possession of family could not be deemed to be on behalf of the alienee and in the absence of any prayer for declaration in respect of the alienation no separate court-fee was payable in respect of the alienation in addition to that payable o