G.Ramanujam, J. -
(1.) THE petitioner herein filed a suit for administration of the estate of his deceased father, K. Ahmed Sheriff Sahib consisting of Schedules A to P given in the plaint and for partition and separate possession of his 14/144th share in the said estate and for rendition of accounts by the first and 13th defendants in respect of his share from 7th January, 1967, the date of death of his father, to the date of the plaint and for future mesne profits. The petitioner also attacked as sham and nominal certain settlement deeds executed by his father in favour of the first defendant his second wife in respect of the properties covered by B, C, D, E, and I Schedules. He also claimed that the properties covered by Schedules G, H, K, and L, though had been purchased in the name of the first defendant, they were really purchased by his father, Ahmed Sheriff Sahib benami in her name for his benefit. He further attacked a decree for arrears of mahar obtained by the first defendant against his father as collusive and not binding on the estate. He also claimed that the jewels referred to in Schedules N, O, P, belonged to defendants 8 and 11 and his mother respectively and that the claim of defendant to the ownership of the same had no basis. He valued the suit at Rs. 4,41,164 -00 under Sections 39 and 50 of the Madras Court -fees and Suits Valuation Act, 1955 and paid a Court -fee of Rs. 200 thereon. He also valued the relief of partition at Rs. 33,324 -25 under Section 39(2) of the said Act and the relief of mesne profits at Rs. 1,000 under Section 44, and paid a Court -fee of Rs. 200 and Rs. 75.50 respectively in respect of those reliefs. Thus in all he had paid a Court -fee of Rs. 475.50.
(2.) ON a check slip issued by the Court -fee Examiner the Court below, after hearing the objections of the petitioner, held that in respect of the properties i.e., Schedules B, C, D, E and I, covered by the settlement deeds executed by the deceased Ahmed Sheriff Sahib in favour of his second wife, the first defendant, he should have asked for cancellation of the settlement deed, that in respect of the properties covered by Schedules G, H, J, K, and L, he should have asked for a declaration that the purchase of those properties in the name of the first defendant was benami for the estate, that in respect of the mahar decree in O.S. No. 64 of 1962 against the father in favour of the first defendant, he should have asked for its setting aside and that in respect of the jewels in Schedule P and N, which is claimed by the petitioner as belonging to his mother and defendant 8 respectively he had to value under Section 25(b), and pay Court -fee accordingly. The learned Counsel for the petitioner attacks the correctness of the order of the lower Court and contends that the suit being one for administration, it is not necessary for him to seek for cancellation of the settlement deed executed by his father in favour of the first defendant or for a declaration that the properties purchased and standing in the name of the first defendant belong to the estate or for setting aside the mahar decree obtained by the first defendant against the plaintiff's father. He also contends that the petitioner is not bound to pay the Court - -fee under Section 25(b) in respect of the jewels set out in Schedules P and N.
(3.) THE properties covered by B, C, D, E and I have been settled by the deceased father of the plaintiff in favour of the first defendant, his second wife, and the plaintiff wants the Court to treat those properties as properties belonging to the estate and to partition the same between the sharers. The lower Court has taken the view that unless the plaintiff seeks a cancellation of the settlement deed executed by his deceased father, it is not possible for the Court to treat the properties as forming part of the estate left by him. The learned Counsel for the petitioner refers to the decision in Ramaswami v. Rengachari : AIR 1940 Mad 118 , and contends that once it is alleged in plaint that the properties even though alienated by the father continues to be in possession of the estate, the plaintiff is entitled to sue for partition ignoring the said alienation, which according to him was sham and nominal. The learned Counsel also relies on the decision in Revenna Basanna v. Adeppa, (1951) 1 M.L.J. 289, where Balakrishna Ayyar, J., had held that in a suit for partition of the family properties some of which were alienated, but were in the possession of the family, the plaintiff need not seek to set aside the alienation and as such no separate Court - -fee was payable as the properties were in the possession of the family and that it cannot be deemed that such possession was on behalf of the alienee. The learned Judge relied on the Full Bench decision in Ramaswami v. Rengachari : AIR 1940 Mad 118 , for taking that view. Ramaswami v. Rengachari : AIR 1940 Mad 118 , was a case in which certain alienations made by managing member of the family were attacked. By virtue of some alienations possession of the properties had been given to the alienees, and in respect of some others the plaintiff therein was eo nominee a party. In the third set of alienations though they were by the Manager of the family, it was alleged that the properties continued to be in possession of the family. In respect of the third set of alienations the Full Bench held that separate Court -fee was not payable and the relevant observations are as follows:
In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good reason for holding it to be one for a purely identical, but unnecessary relief. As I have indicated there is no such prayer in the plaint and in the light of the principles explained there is no justification for implying them and then demanding a fee for it. Nor can I see any force in the argument that the position is altered by the joinder in the suit of the parties to the transactions who are interested in supporting them.... I am unable therefore to appreciate the argument that, by reason of his impleading the several creditors, the plaintiff must be deemed to have asked for declarations in respect of each of the transactions impugned and must pay a separate Court - -fee as regards each one of them.
The above two decisions specifically proceed on the basis that though the properties have been alienated if they are alleged to be in the possession of the family, that is, if the plaintiff is alleged to be in joint possession of the alienated properties, no separate Court -fee need be paid for having the alienation cancelled or set aside. In re Thirupathiammal, A.I.R. 1956 Mad. 179, was also -referred to on behalf of the petitioner. In that case Ramaswami, J., held that a plaintiff, suing for declaration of his title to certain lands and for possession and mesne profits on the ground that a sale deed executed by his son in favour of a third party was a fictitious transaction, need not pray for cancellation of the document for he not being a party to the above sale deed can ignore it and ask for the appropriate relief without seeking for cancellation. In that case the father claimed that alienation made by the son was invalid on the ground that himself and his son constituted a joint Hindu family of which he was the manager, that his son had no power to alienate the family properties and that on account of some misunderstandings between him and his son, his son has executed a nominal sale deed in favour of a third party. It is on those facts the Court held that the plaintiff need not ask for cancellation of the alleged sale deed executed by his son which was challenged as invalid.;