1. These two applications in revision arise out of the same order dated the 28th January 1960, passed in Title Suit No. 62 of 1959, affecting, however, the petitioners differently. The plaintiff of the title suit is the petitioner in Civil Revision No. 240 and defendant No. 1 is the petitioner in Civil Revision No. 408. They would be referred to hereafter as the plaintiff and defendant No. 1, the other defendants, being opposite party Nos. 2, 6 and 4, having not appeared in the suit. The parties are the members of the same family. The plaintiff is the widow of the brother of defendant No. 1 and defendant No. 2 is the sister of defendant No. 1, and defendants 3 and 4 are Bhaginas of defendant No. 1, being sons of defendant No. 2. The plaintiff has brought the suit for partition.

2. It would appear, however, that there w-is a family arrangement between the parties. It was duly registered, and is dated 8th July 1951. The plaintiff was also a party to this deed. Under this deed, all the parties partitioned their properties, and took possession of their respective shir's as allotted to each of them.

3. The present suit was filed by the plaintiff on the 27th July 1959, with an allegation that the previous, partition arrived at by way of family arrangement was void, inoperative and illegal, because the plaintiff did not understand its contents, which were never explained to her, and that after declaring it to be so, she should be allotted her due share in the family property.

4. On the 9th September 1959, a prayer was made on behalf of the plaintiff for appointment of a pleader commissioner to make an inventory with valuation of the properties sought to be partitioned, and an ex Parte order was made on the same day for preparation of such an inventory, although no notice had been issued to any of the defendants. The commissioner was directed to submit his report by the 18th September 1959. The commissioner held local inspections on the 6th, 7th and 8th of October 16591, in absence of the defendants. The commissioner had served notice on defendant No. 1, although no notice had been served on him by the court. The commissioner, however, could not serve notice of local inspection on other defendants. Defendant No. 1 did not appear before the commissioner to attend to the local inspection, because no notice had been served on him by the court. An objection was filed on his behalf before the court below challenging the validity of the appointment of the commissioner and the inspections held by him on the ground of want of notice by the Court. Another objection was also taken on his behalf that the plaintiff's suit was not maintainable unless ad valorem court fee had been paid on the plaint, for, the plaintiff filed the suit merely as a declaratory suit combined with relief for partition.

5. The learned trial court, by its order dated the 28th January 1960, stayed the execution of the commission, and also held that the plaintiff must value the subject-matter of the suit and pay ad valorem court fee thereon, otherwise the plaint was liable to be rejected. The plaintiff has filed Civil Revision No. 240 against this order of the learned lower court calling upon her to pay ad valorem court-fee, whereas defendent No. 1 has filed Civil Revision No. 408 challenging the validity of the appointment of the commissioner and the validity of the inspection notes already submitted by him, which the learned Subordinate Judge has not discarded as yet.

6. In the first place, I may dispose of the civil revision filed by defendant No. 1. The order of the learned Subordinate Judge appointing a pleader commissioner, without notice to the defendants, was obviously without jurisdiction. Rule 18 of O. 28 of the Code of Civil Procedure requires that before a commission is issued,

“the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders.”

7. It is the admitted position that the court in the present case had not directed the parties to appear before the commission. Any notice by the pleader commissioner himself to defendant No. 1 would not validate the appointment of the commissioner. Under Rule 10(2) of Order 26 of the Code of Civil Procedure, the report of a commissioner is evidence, and any evidence recorded by a pleader commissioner, without notice to the parties to the suit, cannot be used as evidence at all.

8. The case of Latchan Naidu v. Rama Krishna Ranga Rao, AIR 1934 Mad 548 is a clear authority on the point. It was held in this case as follows:

“Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the commissioner and that they must attend his investigation. Therefore, there is no power in the Court to issue an ex parte commission. Moreover, as Rule 10(2), Order 20 makes the report of the commissioner evidence in the suit, it is of importance that the report should not be founded on representations made to the commissioner, or on matter, brought to his notice by one party to the suit alone. Even an emergency cannot absolve the Court from complying with Rule 18.”

9. It would appear that the order of the court below appointing the commissioner, without notice to the defendants, was without jurisdiction, and the inspection notes already made by the commissioner cannot be used as evidence at all. Merely staying of the execution of the commission, in the circumstances, was not enough. The order of the court below appointing the commissioner is set aside; also the inspection notes, already made by the commissioner, cannot be used in evidence. It would, however, be open to the court below to appoint any other commissioner after the plaint has been admitted, and the parties have been duly served with notice.

10. Civil Revision No. 408 of 1960, filed by defendant No. 1 is allowed. In view of the order that I am going to pass in the other civil revision, there will be no order for costs.

11. The question involved in the other civil revision (Civil Revision No. 240 of 1960), is whether the order of the learned Subordinate Judge calling upon the plaintiff to pay ad valorem court fee is justified. The relevant reliefs sought for in the plaint are to the following effect:

“(a) Be it declared that the family arrangement dated 9th July 1951, executed by the plaintiff and defendants is void, illegal and unenforceable and not binding on the plaintiff.

(b) Decree for partition be passed in favour of the plaintiff against the defendant 1st party and her share be carved. Out into a separate patti and separate possession be delivered.”

12. The plaintiff herself was a party to the family arrangement, and when she wants to get it declared as void, illegal and unenforceable against her, she must have to pay ad valorem court fee on the value of the subject matter of this deed.

13. Mr. Balbhadra Prasad Singli appearing for the plaintiff, has argued that relief (a) is a mere surplusage, and relief for partition would follow without having the family arrangement declared as void. In support of the argument, he has relied upon the Full Bench decision of this Court in Ramkhelawan Sahu v. Bir Surendra Sahi, ILR 16 Pat 766 : (AIR 1938 Pat 22) (FB). But this case is not applicable at all. It only makes a distinction between a declaration necessary and a declaration so-called, which is not necessary to ask, in the sense of a finding of fact as to the plaintiffs title necessary for granting a decree for possession. It only lays down that a distinction has to be made between a declaration properly so called and a declaration which is unnecessary. In the present suit, it cannot be said that a declaration sought for under relief (a) is an unnecessary declaration.

14. Learned Counsel for the plaintiff has also relied upon a Smsie Bench case of this Court in Abdul Hassan v. Rajbansi Das, 1958 BLJR 190 in support of his argument that in case an instrument is absolutely void on the allegaions in the plaint, a mere declaration would enable the plaintiff to avoid it although he was a party to it. It has been argued that a document which is void is always void, and no declaration to that effect as at all necessary. The plaintiff, in the present case has described the family arrangement as void, and so according to the argument of Mr. Balbhadra Prasad Singh, it is not necessary to ask for such a declaration-.The above case has sought to distinguish the facts of a previous case reported in Mt. Rupia v. Bhalu Mahton, AIR 1944 Pat 17 (FB). But with great respects, I am unable to agree with the decision in the case of Abdul Hassan, 1958 BLJR 190. It has been held in Rupia's case, AIR 1944 Pat 17 (FB) that if the plaintiff is a party to the document which he wants to avoid by calling it void, he must have to seek for cancellation of such a document by paying ad valorem court fee there.

15. Learned Counsel for the plaintiff relied upon a Division Bench decision of this Court in Indrasan Prasad Singh v. Raghubans Raut, 1957 BLJR 373 : (AIR 1957 Pat 711). But in this case, the deed which was sought to be avoided was one of Bazidawa which creates no title. Also, the plaintiff in that case was not the executant of the document, and it was in this view of the matter that it was held that no ad valorem court fee was payable on the plaint.

16. The law is well settled in the matter. A court lee is always payable on the allegations in the plaint, and the Court should not import anything more into the plaint; but at the same time, the plaintiff also cannot be allowed to escape the court fee by ingenious drafting of the plaint. The substance of the plaint has to be looked into. In the instant case, the plaintiff has dearly asked for avoiding the family arrangement by declaring it void. It is not an unnecessary declaration. In such circumstances, the declaration sought for is properly called for, and, therefore, ad valorem court fee has to be paid on the value of it, and the value would be the subject-matter of the family arrangement. The facts of this case are fully covered by the facts of the case decided by a Division Bench of this Court in Bhola Nath v. Girish Chandra, AIR 1954 Pat 400. The reliefs sought for in that case were practically identical with the reliefs sought for in this case. The facts were exactly similar, inasmuch as in that case also, a previous partition was sought to be avoided, as in this case, as illusory, fraudulent, inequitable and void, before the partition was claimed. It was held in the above case that ad valorem court-fee was payable.

17. Learned Counsel has further argued that a family arrangement does not create any new right, and therefore, it is not necessary for the plaintiff to ask for a declaration to avoid it as void. It is true that a family arrangement does not create any new right, but it does recognise the existing right, and creates a separate title to what was joint before. Under this document, the parties had partitioned their properties and taken possession of specific share. As it is it was a case of pure partition. Now when the plaintiff wants to challenge this previous partition as illusory, illegal and void, she must have to pay ad valorem court fee. The order of the court below appears to be quite correct. There is no merit in this application filed by the plaintiff, and it is accordingly dismissed with costs; hearing fee, Rs. 64/- payable to defendant No. 1 only.

BF/D.H.Z

18. Order accordingly.