The real test to determine the court fee payable in a suit for partition is not whether the plaintiff was eo nomine a party to the proceeding or to the document which was being impeached, but whether the real purpose and intention running through all the allegations of the plaint was to fight out a title suit in the face of a number of alienations.

MOHAPATRA, J.

( 1 ) THIS Civil Revision under Section 115 of the C. p. c. has been filed by the plaintiff against an order dated 16th March, 1960 of the Subordinate Judge of berhampur, demanding the plaintiff to pay court-fee under Section 7 (iv) (c) of the court-fees Act. The plaintiff paid court-fee of Rs. 22/8 on the basis that it is a suit for partition only. The value of the share of the plaintiff in respect of the suit properties is put at Rs. 8100/-

( 2 ) THE plaintiff and defendant No. 1 are brothers. Defendant No. 2 is the wife of defendant No. 1. Defendant No. 3 is the brother of defendant No. 2. Defendant no. 4 is the mother of the plaintiff and defendant No. 1. Narayan Sahu, the father of the plaintiff and defendant No. 1, died only 9 years ago leaving behind him his widow, defendant No. 4, and the two sons, the plaintiff and defendant No. 1. He had left vast landed properties and two houses which form the subject matter of the present suit. The plaintiff claims partition in respect of his one-third share which he valued at Rs. 3100/ -.

( 3 ) IT is important to note, the other defendants 5 to 50 are the alienees in respect of different items of properties which form the subject matter o the present suit. There are quite a number of sale deeds in favour of these alienees which is being impeached in the present suit. The important allegations in the plaint are that while the father died, both the sons were of tender age. But defendant No. 1 indeed was a major. Defendant No. 1 being in bad company cultivated bad habits on account of which he was not able to judge his actions nor could form a rational judgment of his activities. Defendant No. 1 consequently began squandering away the entire family properties so much so that he effected sales of almost the entire family properties within a short period of 3 to 4 years. The family at present owns only the two items of the house property. The alienees could easily get at the properties and the manager of the family being a female and being always under constant threat of defendant No. 1 and his other associates could not say anything nor oppose the alienees in getting possession of the lands in dispute. The plaintiff challenges the alienations as not binding and as such claims a partition in respect of his one-third share. It is significant to note that the cause of action given in the plaint is stated to have arisen in February 1958 when demands were made for partition and also on different dates of alienations effected by defendant No. 1:

( 4 ) IT will be relevant also to quote the reliefs sought: (a) Directing a partition of the suit schedule properties into three equal shares and putting the plaintiff in possession of one such share; (b) Directing the defendants to pay mesne profits; (c) Granting costs of this suit and (d) granting such other and further reliefs etc. of which the relevant elements to be considered are that the plaintiff seeks possession of his one-third share not only against the members of the family but against the alienees also who are alleged in the plaint itself to have got possession. The further important fact is for a direction against all the defendants to pay mesne profits. On a careful scrutiny of the plaint the position appears to be clear that practically the whole of the plaint is a challenge of the innumerable alienations made by the defendant No. 1, the elder brother. The different circumstances in which the alienations were made and the different grounds on account of which the plaintiff challenges the alienations have been exhaustively narrated in practically the whole body of the plaint. There is no doubt over the position that the suit has been framed in its form only as a suit for partition. But nevertheless it requires no difficulty in getting at the real nature and substance of the plaint which are nothing less than fighting out the entire case to undo the effects of the alienations not only against the members of the family b