KRISHNASWAMY Vs. RANGASWAMY GOUNDER AND ANR.

JUDGEMENT

(1.) THE plaintiff whose suit for partition and separate possession with mesne profits has been dismissed in limine without going into the merits of the case on certain preliminary issues has preferred this second appeal. The case of the plaintiff was that the entire suit properties belonged to his father as his self -acquisitions and that the father bequeathed the properties under a Will in favour of the plaintiff, his elder brother Thirumalaiswami and his mother the second defendant, each legatee getting a third share in the properties. Thirumalaiswami, it is said, died, a boy and his share also devolved on the plaintiff. The plaintiff alleged that in the circumstances he became entitled to a two -third share in the properties, his mother impleaded as second defendant in the suit being entitled to the remaining one -third share. He would allege that during his minority his mother had executed an usufructuary mortgage and followed it by a sale in favour of the first defendant for no consideration or necessity. He would further allege that the transactions are contrary to law and that he could ignore them. On the averments he would claim partition and possession of his two -third share. The 1st defendant, the purchaser in possession, in his written statement contended that the sale was for necessity and benefit of the minors, that the minors themselves had been eo nomine made parties to the transaction and the plaintiff cannot ignore the sale, but must sue to have the transaction set aside. It was pointed out in the written statement that a higher Court -fee should have been paid. It may be stated that the sale deed in favour of the 1st defendant had been filed along with the plaint. There was also a plea that the suit was barred by limitation, the suit not having been filed within three years of the plaintiff becoming a major. Of the several issues framed, Issue 3, " whether the suit for partition is maintainable without setting aside the alienations " and Issue 7 " whether the Court -fee paid is not correct -, were set down for hearing as preliminary issues. The plaintiff meanwhile applied by Interlocutory Application No. 653 of 1962,. for amendment of the plaint so as to include a prayer for having the alienations set aside. This application was dismissed, by the learned District Munsif on 23rd June, 1962, and following, on the preliminary issues he held, that the suit is not maintainable without praying to have the alienations set aside and that the Court -fee paid was not correct. On this view of the preliminary issues, the suit was dismissed. On appeal, the learned First Additional District Judge has confirmed the dismissal of the suit on the preliminary issues. It was brought to his notice that the plaintiff had hardly any time to challenge the dismissal of his application for amendment and that the suit had been taken up for trial and disposal shortly after the orders on the application for amendment. The learned District Judge expressed the view that even considering the question of amendment independently - -the plaintiff had made it a point in the memorandum of appeal - -as it was well established that an amendment of the plaint which would deprive the defendant of a valuable right of limitation should not be allowed, be could not allow the amendment. Hence the matter has been brought up in second appeal.

(2.) THAT the plaintiff must value the suit as one for setting aside the impugned alienation and pay Court -fee accordingly is not disputed before me. The question is now settled by the Full Bench decision of this Court in Sankaranarayana v. Kandasami : AIR1956Mad670 . It will be interesting to note that in the case that came up before the Full Bench the plaintiff who impugned the alienation had not specifically asked for the cancellation of the sale deed which had been executed by his mother in that case. The defendant contended that the plaintiff could not bypass them and ask for mere possession ignoring the sale deeds. A question of jurisdiction also was involved in that case as, if the relief had to be valued as one for setting aside, the value for purposes of jurisdiction went up. The Full Bench in the case held that a plaintiff who as a minor had been made eo nomine a party to a sale deed or other document of alienation by his mother and guardian had to pay Court -fee under Section 7(iv -A) Madras Court -fees Act and that he cannot ignore and bypass the alienation, as the alienation was not void but only voidable. He should get it set aside. This Court directed the District Munsif in that case to assess the valuation of the suit after hearing both sides. What has to be noticed is there was no specific amendment of the plaint ordered in that case.

(3.) IT is contended before me for the appellant that if in fact the relief of cancellation of the alienation was involved on the averments in the plaint, the suit ought not to have been dismissed in limine but requisite Court -fee called for; at any rate the Court should have in the circumstances allowed the plaintiff to amend the plaint. Learned Counsel points out that the necessary averments are there in the plaint. The plaintiff has stated that his mother who was his guardian had made the alienations and that the alienations were illegal and not binding upon him. He prays for relief of partition on the basis that the alienations are not binding upon him. He would no doubt say that he can ignore them. The question whether on the averments and on the facts as they turn out, the transaction is void or voidable is a matter for inference. The relevant facts are found in the plaint. It may be" that there is no specific prayer for avoiding or setting aside the sale. But it is necessary incidental or preliminary step for the grant of the substantial relief of partition and possession. By simply stating that he was ignoring it the plaintiff cannot get round the bar of limitation, if that relief was barred. It could be said that the plaintiff is seeking to evade payment of the proper Court -fee. The alienation will be a bar to his getting the relief of partition. It being a voidable transaction he must have it set aside. In such circumstances, the Court would itself not permit the plaintiff to evade payment of the proper Court -fee on the plaint. I may in this connection refer to the observation of this Court in Ramaswami v. Rangachariar : AIR1940Mad118 . I am unable to accept the plaintiff's contention that he should not be called upon to pay Court -fees in respect of any of the transactions which he challenges because he has not asked for specific relief in respect of them. His plaint challenges the validity of transactions entered into by his father as manager of the family and particulars of these transactions have been supplied. The plaintiff must pay Court -fees in accordance with the relief which he is actually seeking. He cannot be allowed to evade payment by omitting to ask for relief when the success of his suit depends on relief being granted to him. The Court must look at the real nature of the suit and decide what the plaintiff is asking for. In this case he is asking for possession of His share in the estate to be calculated after certain transactions have been set aside....The plaintiff is in effect asking in respect of alienations where possession has passed to the alienees that they be set aside and that he be placed in possession of his share of the properties alienated. In respect of these transactions the plaintiff clearly has to stamp his relief in accordance with the provisions of Section 7(v) .