Meredith, J.:— This is an application in revision against an order of the learned Subordinate Judge, 1st Court, Patna, calling upon the petitioner as plaintiff to pay ad valorem court-fees under Section 7(iv)(c) of the Court Fees Act upon a sum of Rs. 11,975 representing his share of property sought to be partitioned.

In the suit the plaintiff simply asked for partition of the joint family properties. The plaint asked neither for any declaration, nor for the cancellation of any document, nor for recovery of possession; but the plaint contained recitals to the effect that the plaintiff's father died 26 years previously in a state of jointness with his brother (the defendant no. 1), who then became karta of the family. The plaintiff was then only one year old. In 1927 the defendant no. 1 got up a colourable deed of partition of the joint family estate with a false recital of previous partition and allotting to himself the best portions of the properties, and got the same executed by the plaintiff jointly with him and registered, after assuring the plaintiff and his mother that the deed was only benami, was executed only to avoid the threatened assessment of income-tax, and was not intended to be acted upon. The plaintiff was made to execute the deed as a major, though he was in fact a minor. The deed was never acted upon, and did not represent any actual family arrangement, nor were the properties divided in accordance therewith; but the plaintiff and defendants continued to live jointly until some time in October, 1938, when on account of some differences amongst the ladies of the family the plaintiff separated in mess from the defendants.

On this plaint the plaintiff paid only a court-fee of Rs. 15, treating his suit as a partition suit, pure and simple, which of course falls within Schedule II, Article 17(vi) of the Court-Fees Act: see Tara Chand Mukerji v. Afzal Beg, Mohendro Chandra Ganguli v. Ashutosh Ganguli and Rajani Kanta Bag v. Rajabala Dasi. The only relief sought was the partition of the property of which the plaintiff claimed to be in joint possession.

The defendants, however, in their written statement pleaded that there had been a previous partition, that the deed of 1927 was a formal recognition of this partition, was not colourable, and was validly executed. Accordingly, an issue was framed:

“Was the partition deed, dated the 27th May, 1927, executed under undue influence and fraudulent mis-representations and during the minority of the plaintiff? Is it binding on the plaintiff?”

In these circumstances the learned Subordinate Judge held that the suit was really one for a declaration that the previous partition deed, dated the 27th May, 1927, was not binding on the plaintiff and for cancellation of that document, which cast a cloud on the plaintiff's title. It was accordingly for a declaration and consequential relief, and governed by Section 7(iv)(c). The document so long as it stood created a bar against the plaintiff's claim for partition, and the plaintiff would only be entitled to a partition after it was declared that the document was invalid and void. The plaintiff, therefore, in his plaint was not merely anticipating a possible defence, but clearing his own right.

As the question is one of some importance and the revenues are concerned, we have thought it proper to ask the learned Advocate-General for his assistance, and he has accordingly appeared before us on behalf of the Government.

It cannot be contended, and has not been contended, that no application in revision lies. That the order of a subordinate Court adverse to the plaintiff upon a court-fee matter is open to revision has been settled in this Court by the Full Bench decision in Ramkhelawan Sahu v. Bir Surendra Sahi.

On the merits I am clearly of opinion that the view taken by the learned Subordinate Judge is wrong, and the court-fee already paid by the plaintiff is sufficient. It is quite true that in cases of this sort we must ask ourselves, what is the real nature of the plaint shorn of its verbiage? What is its real substance as opposed to its ostensible form? And so far as a suit purporting to be for partition is actually in the nature of a title suit ad valorem court-fees are payable, whether the suit is regarded as governed by Section 7(iv)(c), 7(iii) or 7(v) of the Court-Fees Act: see Sital Prasad Sah v. Ramdas Sah, Rachhya Raut v. Musammat Chando and Sundara Ganapathi Mudali v. Daivasikamani Mudali. In applying these principles, however, caution must be observed so as not to import into the plaint anything which it does not really contain, either actually or by necessary implication. In construing the plaint we must take it as it is, not as we may think it ought to have been: Mohammad Ismail v. Liyaqat Husain and Kalu Ram v. Babu Lal. A relief not asked for cannot be imported so as to charge court-fee thereon: Khiri Chand Mahton v. Musammat Meghni. It is the plaintiff's own business if he chooses to take the risk of his suit failing on the ground that he has not asked for a necessary relief either declaratory or consequential. As it is put in Tikait Thakur Narayan Singh v. Nawab Saiyid Dildar Ali Khan*, where a plaintiff who is entitled to consequential relief frames his suit as one for a declaration only, the Court is not entitled to insist upon his praying for a consequential relief and paying the court-fee proper for such a suit; or, as it is put in Sri Krishna Chandra v. Mahabir Prasad, where the plaintiff deliberately omits to claim a consequential relief and contents himself with claiming a mere declaratory decree, the Court cannot call upon him to pay court-fees on the consequential relief which he should have claimed, although he has omitted to do so.

The same principle will, of course, apply where the plaintiff omits to claim both the declaration and the consequential relief, and contents himself with claiming a mere decree for partition. In the present case neither a declaration of title nor consequential relief in the shape of cancellation of the document, or ejectment, has been expressly claimed; but it is said it must be taken to be claimed by necessary implication, since a suit for avoiding an instrument even if there be no prayer for cancellation carries with it by necessary implication a prayer for setting it aside: Akhlaq Ahmad v. Musammat Karam Ilahi.

It is also true that a suit for cancellation of a document is a suit for a declaration and consequential relief, and governed by Section 7(iv)(c): Samiya Mavali v. Minammal, Kuber Saran v. Raghubar, Daya Shanker v. Mohammad Ibrahim Khan, Parvatibai v. Vishvanath Ganesh and Kamla Prasad v. Jagarnath Prasad. It is true that there are observations in Kalu Ram v. Babu Lal which might seem to cast doubt upon this proposition. There it was held that a suit for adjudging an instrument void or voidable under section 39 of the Specific Relief Act with or without a prayer for its cancellation is not a suit for a declaration or governed by Section 7(iv)(c), since there is a separate chapter in the Specific Relief Act for declaratory suits. There has been some conflict of opinion here in the Allahabad High Court, a conflict which is considered in Akhlaq Ahmad v. Musammat Karam Ilahi. It is not necessary for our present purposes to decide whether a suit under section 39 of the Specific Relief Act for adjudging a document void or voidable involves anything otherwise than a prayer for a declaration, and we need not examine the correctness of Musammat Noowooagar Ojain v. Shidhar Jha, and whether it can be reconciled with Khiri Chand Mahton v. Musammat Meghni. It will be enough to say, as pointed out in Akhlaq Ahmad v. Musammat Karam Ilahi, that the plaint must be examined and construed to see if it carries by necessary implication a prayer for cancellation of the document.

Here, however, another caution is necessary. It can never be said that a plaint carries by necessary implication a prayer for a relief which is in fact unnecessary and a clear distinction must be drawn between cases where it is necessary for the plaintiff to get the document declared void and cancelled before he can obtain relief, and cases where the plaintiff can obtain his relief without any such declaration and cancellation, upon a mere finding that, the document does not affect him; that is to say we must distinguish between voidable documents and wholly void documents, and between declarations in the true sense and declarations so called, which are merely the findings of fact necessary to give the plaintiff relief.

Both these distinctions have been clearly drawn many times in judicial decisions. The Privy Council in T.P Petherpermal Chetty v. R. Muniandi Servai has held that an inoperative instrument does not bar the plaintiff's right to recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims. This distinction has been clearly pointed out in Banku Behari Shaha v. Krishto Gobindo Joardar. A document which is a nullity does not require to be set aside, or cancelled. A suit for a declaration that a transaction embodied in a particular deed was from its very inception a sham transaction is to be distinguished from a suit for cancellation of the deed: Jagardeo Singh v. Phuljhari. A plaintiff may rely upon the invalidity of a void instrument as against himself without suing for its cancellation, and a suit for declaring the invalidity of such an instrument will not be governed by Section 7(iv)(c), though it will of course be otherwise when a party cannot impeach the document without having it cancelled: see Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon. In a similar strain are observations in Arunachalam Chetty v. Rangasawmy Pillai to the effect that the substance, and not the language, of the plaint must be looked to, and a suit for a declaration that the document is not binding is to be taken to be for consequential relief, where it is incumbent on the plaintiff to get the document set aside before he can question it.

In short, the prayer for cancellation can only be deemed to be present by necessary implication where upon its true construction the plaint in asking for avoidance of the document asks for reliefs which necessarily involve its cancellation, that is to say, in the case of a document which is voidable as opposed to void.

Similarly, a declaration cannot be said to be asked for by necessary implication where no declaration in the true sense is necessary before the plaintiff can be given relief. This distinction is very clearly laid down in Ramkhelawan Sahu v. Bir Surendra Sahi. There it is pointed out that a declaration does not include what is really only the finding of fact necessary before a decree for possession can be granted. We must ask whether the real remedy sought is the declaration or possession. Section 7(iv)(c) applies only to declarations properly so called. Declarations in the true sense are rarely required. If there is a claim in the plaint for a declaration, it should be examined to see if it is for a declaration properly so called, or is really unnecessary, and the plaintiff could have prayed simply for possession; and, if the plaint attempts to anticipate a possible defence, that does not alter its essential nature. The distinction between a declaration in the true sense and what is merely a necessary finding, that is, where the plaintiff's right does not depend upon a declaration being made but on a finding of fact being arrived at, is also clearly drawn in Maung Shein v. Ma Lon Ton.

Now let us apply these principles to the present case. If the plaintiff establishes his case, is the document voidable or wholly void? Void undoubtedly since executed by a minor, who cannot contract at all (Indian Contract Act, section 11), and, secondly, a colourable transaction which was never acted upon and was never intended to be acted upon, a document in fact similar to that contemplated by their Lordships in T.P Petherpermal Chetty v. R. Muniandi Servai.

Is it a declaration that is necessary to give the plaintiff relief, or only a finding? Surely, a finding that no such document was ever actually executed by the plaintiff would be enough.

In short, the present plaint in terms asks only for a partition. We cannot import into it by necessary implication either a prayer for a declaration of title, or a prayer for any cancellation of the document as a consequential relief, simply because if the plaintiff can establish his allegations he can succeed without either.

If the cases be examined in which the plaintiff had been called on to pay ad valorem court-fees in partition suits, it would be found that all can be distinguished by the application of the principles which I have outlined. Sital Prasad. Sah v. Ramdas Sah was a case where the plaintiff was admittedly out of possession of part of the land. He was, therefore, required to pay court-fees on the difference in value between what he possessed and what he claimed. In Rachhya Rant v. Musammat Chando the record-of-rights was against the plaintiff and had to be declared incorrect. In Satish Chandra Ghose v. Kalidasi Dasi cancellation of the previous partition deed was expressly asked for. In Bara Gowri Saha v. Dukhi Saha the plaintiff had asked that a decree might be declared invalid and an arrangement carried out under that decree reversed and the property brought into hotchpot. In Sundara Ganapathi Mudali v. Daivasikamani Mudali a previous partition deed had to be set aside. The plaintiff's case was merely that in was voidable at his option. In Kanhaya Lal v. Baldeo Lall the plaintiff in the very forefront of his prayer in the plaint had asked for a declaration of title and possession, and so was held to be bringing a title suit in the guise of a partition suit.

There is nothing in any of these cases really conflicting with the view which I have adopted. I consider that the order of the learned Subordinate Judge demanding ad valorem court-fees was not correct. I would, therefore, allow the application with costs, set aside the order of the Court below, and direct that the suit do proceed upon the court-fee already paid.

Chatterji, J.:— I agree.

S.A.K

Rule made absolute.