IRAPPA BOMMANEPPA Vs. SHANKREPPA BOMMANEPPA

JUDGEMENT

(1.) This revisional application raises a question as to the payment of court-fees.

(2.) Petitioners 1 and 2 and one Gurusangappa are brothers and in 1939 Gurusangappa sold a family house to opponent 1. The petitioners have filed a suit for a declaration that the sale-deed executed by their brother is not binding on them and for recovering joint possession of their two-thirds share. The contention in the Court below was that the suit fell under Section 7 (iv) (c), Court-fees Act. In other words, the contention was that this was a suit for a declaratory decree where a consequential relief was prayed for. The learned trial Judge held that the suit was for possession and it fell under Section 7(v), and, therefore, the court-fees had to be paid on an 'ad valorem.' basis.

(3.) Mr. Albal, before me, has contended that, if the suit did not fall under Section 7 (iv) (c) it fell under Section 7 (iv) (b), in which ease also the court-fees payable would not be on an 'ad valorem' basis. Now, the principle which should be applied to this case has been clearly stated in the full bench decision reported in --'Shankar Maruti v. Bhagwant Gunaji', AIR 1947 Born 259 (FB) (A). That was a suit for partition of joint Hindu family property, and what that ease laid down was that, inasmuch as coparceners were in constructive possession of all the joint family property, when a suit for partition was filed it could not be said that it was a suit for possession. It was pointed out that a suit for possession within the meaning of Section 7, Sub-clause (v), was a suit where the plaintiff was dispossessed and he was seeking to eject the defendant and to recover possession. Therefore, if the plaintiff was already in possession, either actual or constructive, then the suit could not fall under Section 7 (iv). Now, it is clear that the present suit does not fall under Section 7 (iv) (c), because, although a declaratory decree is sought for, it was not necessary for the plaintiffs in this suit to ask for the declaratory decree in order to get the consequential relief which they have sought. The consequential relief is the main and substantial relief in the suit and the plaintiffs could have got the consequential relief without asking the Court to give them the declaration which they have asked. As members of the joint family, it was open to them to ignore the alienation made by one of the coparceners, and as an alienation of this character is voidable, the very fact that the non-alienating coparceners filed a suit to challenge the alienation amounts to the void-ance of the alienation. Therefore, although in form the suit is for a declaratory decree, in substance the suit is for joint possession of the two-thirds share belonging to the plaintiffs.