The court fee is dependent on the real substance of the relief claimed, and where a plaintiff who is entitled to consequential relief frames the suit as one for declaration only, the court is not entitled to insist upon praying for a consequential relief and paying the court fee proper for such a suit.

Sinha, J.

1. This application is by the plaintiffs against an order of the Court below demanding ad valorem court fee under Section 7(iv) (c) of the Court Fees Act.

2. The suit was brought for a declarations that a certain Bazidawa deed executed by the plaintiffs mother and her sister was invalid, void and not binding upon the plaintiffs as the document was procured by fraud. The court below thinks that this suit involves a relief in the form of consequential relief and that the plaintiffs should have also asked for cancellation of the document. The consequential relief according to the court below though not asked for, must he held to have been asked for on reading the substance of the plaint, and therefore, ad valorem Court fee is payable. Reliance is placed on the case of Kamla Prasad V/s. Jagarnath Prasad. I.L.R. 10 Pat 432 : (AIR 1931 Pat 78) (A), in support of the decision to which the court below has arrived.

3. As was said in the case of Mt. Rupia V/s. Bhatu Mahton, AIR 1944 Pat 17 (FB) (B).

"....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 the court must take it as it not as it may think it ought to have been. A relief not asked for cannot be imported so as to charge court fee thereon. Where a plaintiff who is entitled to consequential relief frames his suit as one for the 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. The court fee is dependent not on the form of the pleadings but on the real substance of the relief claimed."

In my opinion judged by the principle above laid down, the plaint cannot be read as a plaint for declaration with consequential relief. It should be borne in mind that the plaintiffs allegation is that fraud was practised upon the two ladies. If that is established, the document becomes void. In that view of the matter, no consequential relief need be asked for. Considered from another point of view, the deed is a deed of bazidawa, which does not transfer title.

In that view of the matter also, the deed does not affect the title of the plaintiffs reversioners because no title is transferred in the property which is the subject matter of the Bazidawa, There is still another point, and it is this that the suit is brought by persons who are not the executants of the document for which declaration is sought; it is a document by a third person, though that person may happen to be the mother or mothers sister.

The title of the plaintiffs, whatever it may be, is not affected by that deed, even though it were a deed of transfer in the I.L.R. 10 Patna 432 : (AIR 1931 Pat 78) (A) case, the deed was a deed of gift, and the person who wanted to have the deed declared null and void was the person who claimed through the donor and executant of the document. Therefore in that case the plaintiff was bound by the transfer. In my judgment, therefore, the order of the court below cannot be sustained; the order is set aside and the court fee paid as for declaration must be deemed to be sufficient.

4. In the result, the application is allowed with costs payable by the contesting opposite party defendant. Hearing fee Rs. 32/-

Dayal, J.

5 I agree.