Dhavle, J.In this appeal we have first to deal with the question of the court-fee on the plaint and the memorandum of appeal in the lower appellate Court. The suit was for recovery of possession of certain shares in two tauzis "on determination of the plaintiffs title," and the cause of action was stated in para. 17 of the plaint to have arisen on I9th July 1921, "when the kabala was executed by defendants sixth party in favour of defendant third party" as well as when defendant fourth party purchased the share at auction sale, and on 27th June 1928, when defendants sixth party executed the kabala in favour of the plaintiffs, besides Asarh 30, 1335, when the first and second party defendants did not let the plaintiffs take possession of the shares in dispute. Para. 6 of the plaint states that the kabala of 1921 covered the entire properties, and we have it from para. 7 that in that kabala defendant 12, the eldest of the three sons of Singhesar, figured as the guardian of his two younger brothers, the defendants sixth party. In para. 9 of the plaint it is stated that in a certain suit relating to the share of Jamuna, brother of Singhesar, it was held that the transfer of the property of the minors was not legal "so long as it was not done through a natural or certificated guardian." On the plaint itself, therefore, it is clear that the suit of the plaintiffs-appellants was framed as a suit for recovery of possession upon a declaration or "determination" that their title was not affected by the kabala of 1921.

2. This was the view taken by the Taxing Officer of this Court; but his jurisdiction being confined to the question of court-fees on the memorandum of the appeal to this Court, the question of the proper court-fees in the lower Courts has come before us. It has been contended on behalf of the appellants that they could claim possession without any declaration as regards the kabala of 1921, and the decision of Piggott, J. in Rup Narain v. Bishwa Nath Singh AIR 1922 All 358 is cited in support of the contention. In so far as the learned Judge held that in a suit, where a member of a joint Hindu family seeks to avoid the effect of a private sale of ancestral property executed by other members of the family the plaintiff is not bound to ask for the cancellation of the sale deed, the decision is distinguishable; for in the present case we are dealing with an alienation by a de facto guardian of Hindu minors which under the Hindu law cannot be treated as void per se: Vemulapallai Seetharamanna v. Maganti Appiah AIR 1926 Mad 457 . Piggott, J., moreover, found that the plaint before him had been so worded that it fell within the purview of Section 7(iv)(c) of the Court-fees Act and held that the plaintiff would have to stamp the plaint accordingly unless permitted by the Court at the hearing of the appeal by the defendant to amend the plaint. The law which is well settled in this Court may be stated in the words of the late Chief Justice who delivered the decision of the Full Bench (Coutts, J. dissenting) in Ram Sumran Prasad v. Govind Das AIR 1922 Pat 615 :

Further, where the plaintiff claims relief to which he is not entitled until some decree or alienation of property which stands in his way has been avoided or until his legal character or title, which has been called in question, has been declared by a decree of the Court, it has generally been held that such a suit comes under Clause (iv)(c) of the section even though the declaration which it is necessary for him to obtain before further relief can be granted has not been in terms asked for in the plaint.

3. The plaintiffs in the present case were obviously advised that they were not entitled to relief until the alienation of 1921, which stood in their way was avoided, and they ought, therefore, to have paid court-fees not under Clause (v)(a) but under Clause (iv)(c), Section 7 of the Act. The deficit has already been calculated, and Mr. Mullick for the appellants who undertook to file the deficit in a week if we decided against him on this point will now carry out his undertaking. The plaintiffs who are the appellants before us failed in both the lower Courts. Their title was based on a kabala of June 1928, from the two younger sons of Singhesar, one of the five sons of Jaimangal Singh. The title of the contesting defendants rests ultimately on a sale deed executed in favour of Etwari Mian, defendant third party, on 23rd July 1919 (and not on 19th July 1921, as wrongly stated in the plaint) by the adult members of the family of Jaimangal including Jogesh, the eldest son of Singhesar, who acted for himself and as guardian of his two minor brothers (the plaintiffs vendors in 1928). The question was whether the title of these younger brothers had passed under the sale deed of July 1919. The plaintiffs case was that Jaimangal was governed by the Dayabhaga School of law; the contesting defendants on the contrary said that he was subject to the Mitakshara. The trial Court held that it was the Dayabhaga that applied to Jaimangal and his family and there has been no further dispute on this point. The lower Courts have held that the title of the two younger sons of Singhesar was validly conveyed by the kabala of July 1919, though they were minors at the time, for in their view, Jogesh was the de facto guardian of his infant brothers and the sale was for necessities of the joint family binding on them. Mr. Mullick who appears for the appellants has argued that the lower Court has erroneously proceeded as if the sale of July 1919, was a sale by the manager of a joint Mitakshara family. He has also contended that the position is not improved by calling Jogesh, the de facto guardian of his younger brothers in 1919. This latter contention was examined in such cases as Vemulapallai Seetharamanna v. Maganti Appiah AIR 1926 Mad 457 already referred to and Tulsidas Jesingbhai Parikh and Others Vs. Raisingji Fulabhai Vaghela and Another, where it was held that under the Hindu law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. Under the general law of course a de facto guardian, being a person who assumes guardianship without any authority, has no legal power to sell the minors property, though he may take upon himself important responsibilities in relation to it. But under the Hindu law, as Knight Bruce, L.J. said in Hunoomanpersaud Panday v. Babooee Munraj Koonweree (1854) 6 MIA 393:

The right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with de jure title.

4. In Mohanund Mondul v. Nafur Mondul (1899) 26 Cal 820 which, incidentally, was a Dayabhaga case, it was held that there was no distinction between, mortgages and sales in respect of the powers of de facto managers under the Hindu law. Mr. Mullicks first contention that the power of the manager in a Dayabhaga family to deal with the shares of minors in proper cases differs from that of the manager of a Mitakshara family is also not well founded. It is true that a member of a joint Dayabhaga family has a defined share in the property jointly possessed by the family, while the Mitakshara co-parcener has only an undivided interest in the property which is jointly owned. But Dayabhaga families require managers no less than Mitakshara families. In Gopalnarain Mozoomdar v. Muddomutty Guptee (1875) 14 BLR 21, their Lordships dealt with a Dayabhaga family

as continuing to be a joint family, so that the son, who was acting as a manager for it, and was indicated by the deceased as the person who should manage, had the authority which is given by the Hindu law to sell or mortgage the property in order to pay oft debts binding on the family.

5. The point was expressly considered with reference to the Dayabhaga law in Dwarka Nath Chowdhury v. Bungshi Chandra Saha 9 CWN 839, where Ghose and Holmwood, JJ. came to the conclusion that:

There is really no difference between the Mitakshara School of law and the Bengal School of law so far as this particular matter is concerned, viz., the liability of a joint family when the debt is contracted by the managing members thereof for joint family purposes.

6. This decision was referred to, in a very recent case to which our attention has been drawn by the learned advocate for the respondents. Sukhadakanta Bhattacharjya v. Jogineekanta Bhattacharya AIR 1981 Cal 73 which incidentally shows one usual difference between the Dayabhaga and the Mitakshara in the governance of joint families, the plurality of managing members--it being held that on a mortgage by two managing members of a joint family, for a debt due by the family, all the members of such a family were liable. That Jogesh was the de facto guardian of his younger brothers and did not merely act ad hoc on the occasion of the sale deed of July 1919 is abundantly established by the numerous transactions, both before and after the sale deed in question, in which he participated both on his own account and as guardian of the plaintiffs vendors, and by the absence of any evidence that the natural guardian, the mother, ever acted for the minors. Mr. Mullick has referred to two or three transactions which related to the needs not of the joint family as a whole but of one individual member of the joint family, Bhagwat (one of Jaimangals sons); but out of the total of Rs. 12,000 raised by the sale deed of 1919 it is only a very small portion that relates to Bhagwat. On one sudharana Rs. 325 was raised partly for household expenses and partly for the education of Bhagwats sisters son. Another mortgage partly covered a previous chithi for Rs. 550 for meeting the expenses of Bhagwats mother and yet another mortgage for Rs. 150 was executed for the sradh expenses of Bhagwats mother. Even in Dayabhaga joint families, however, there must be certain amount of give and take in the matter of the normal expenses of living, unless accounts are kept crediting each member with the income of his defined share and debiting him with expenditure actually incurred on his account.

7. How far this last was done in the family we are dealing with does not appear; the sixteenth document put in evidence, apart from the sale deed in question, would suggest that the adult members were dealing with the family properties much in the same way as a Mitakshara family. Bhagwats share was, moreover, greater than that of the appellants vendors, and it is not definitely shown how many months there were to feed against his individual accounts. The sale cannot further be set aside in part, and must be regarded as a whole in the light of the fact that the bulk of the consideration was for the needs of the whole family. Mr Mullick has also urged that the appellants suit should have been decreed on the ground of res judicata. The point arises in this way: After a sale deed of July 1919, Etwari was involved in a dispute with one Sant Lal, who had purchased the one-fifth share of Jamuna (or rather his widows) in an execution sale. He put in a claim under Order 21, Rule 58, Civil P.C.; but this was rejected. He thereupon brought a regular suit against. Sant Lal and all his vendors, viz., the adult members of the family left by Jaimangal Singh, and also Jogeshs two younger brothers. Against Sant Lal he claimed a prior lien; and failing this he claimed in the alternative a money decree against his vendors and the two younger brothers of Jogesh for the amount of the lien, which he put at one-fifth of Rupees 12,000, on the strength of the ekrarnama containing an indemnity to him "if put to any loss by his purchase," Jogeshs younger brothers were represented by their guardian ad litem in the suit, and it was contended for them that Etwaris sale deed did not affect their interest. The trial Court addressing itself to the question whether Etwaris kabala was invalid and inoperative and collusive, found in favour of the plaintiff, but added:

Plaintiffs kabala and the prior mortgage bonds were executed on behalf of the minors by their uncle and brother although their mother was and is still alive. In a Bengal family co-parceners stand in the position of tenants-in-common and there is no family representation through an uncle or brother. No transfer is valid as against the minors share unless effected by a natural or certificated guardian. The transfers did not bind the minors share. The suit will stand dismissed as against the minors.

8. The suit was ultimately decreed on contest against Sant Lal alone (in part) and was dismissed "as against the minors and the rest of defendant 2." It is clear, therefore, that the actual decision was that the plaintiff was not entitled to any part of the relief which he had claimed in the alternative against defendants second party (including Jogeshs brothers) because be was entitled to relief as against Sant Lal. The finding that the share of the minors had not passed to Etwari was only an incidental finding and the Court did not even touch the question of the ekrarnama on which Etwari had founded the alternative liability of defendants second party. Sant Lal appealed to the District Judge as the suit had been decreed against him; Etwari could not and did not appeal as it was only the alternative liability of defendants second party that had been negatived by the trial Court. The question of this alternative liability was, however, considered by the Additional District Judge who heard the appeal. He pointed out that the effect of the ekrarnama had not been considered by the trial Court, and said:

It cannot be considered here, simply because the suit has been completely dismissed as against the defendants second party and no cross-appeal has been lodged in respect of that finding. In any case a contribution suit is a condition precedent towards determination of any such claim since otherwise it would be impossible to determine its amount.

9. We are not now concerned with the correctness or otherwise of the learned Judges observations. What is clear is that in his view the liability of defendants second party, which was only a relief asked for by the plaintiff, in the alternative, did not arise for decision in the suit as framed. The learned Judge as a matter of fact allowed the appeal and dismissed the entire suit, The finding of the trial Court that the share of the minors had not passed, which had at the most a distant bearing on the alternative liability of defendants second party (though the Court did not consider the ekrarnama at all), had no bearing on the liability of Sant Lal, and even this liability, such as it was, found by the trial Court, was negatived by the Court of first appeal. There was a second appeal preferred to the High Court, which proved unsuccessful. The judgment of Kulwant Sahay, J. (with whom Macpherson, J. agreed) does not deal with the alternative liability of the defendants second party at all. The learned Munsif in the present suit held that the finding that the share of the minors had not passed could not operate as res judicata because there was no question in that suit of the validity of the kabala so far as these shares were concerned. The lower appellate Court gave an additional reason for the same, view, viz., that the decree of the High Court destroyed the effect as res judicata of the finding regarding whether the shares of the minors had passed under the kabala. In my opinion both these views are substantially right. The matter was not directly and substantially in issue in the former suit and the Court of first appeal had found that the question of the alternative relief did not arise at all, a view that was not disturbed in the second appeal. I would, therefore, dismiss the appeal with costs.

Courtney-Terrell, C.J.

10. I agree.