A plaintiff seeking a declaration that a family arrangement is void must pay ad valorem court fee on the value of the subject matter of the family arrangement.

Anant Singh, J.

1. Those 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.

2. 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 hag brought the suit for partition.

3. It would appear, however, that there was a family arrangement between the parties. It was duly registered, and is dated 9th 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 shares as allotted to each of them.

4. 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.

5. 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 1959, in ab sence 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 plaintiffs 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.

6. 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 plaintitf 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.

7. 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 Order 26 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." It is the admitted positi