A declaration in the true sense is not necessary where the plaintiffs' right does not depend on a declaration being made out but on a finding of fact being arrived at.

G.N.Prasad, J.

1. The petitioners are the plaintiffs of Title Suit No. 41 of 1962 which they have filed in the Court of the Subordinate Judge, Second Court. Monghyr, for partition claiming -/8/- annas share in the suit-properties on the basis of a genealogy which has been included in Schedule 1 of the plaint. The short question which arises for decision is whether the petitioners are liable to pay court-fee on ad valo rem basis upon the plaint which they have filed with a fixed court-lee of Rs. 22.50 under Article 17(vi) of Schedule II of the Court-Fees Act.

2. By his order dated the 31st August 1963, the learned Subordinate Judge has held that although in the relief-portion of the plaint only a simple prayer has been made for partition, the recitals contained in paragraphs 7 to 13 of the plaint make it clear that the plaintiffs are really seeking a declaration to the effect that a compromise decree passed in a previous suit (Title Suit No. 9 of 1961) between the same parties is invalid, void and not binding upon them According to the learned Subordinate Judge, the plaintiffs can get a decree in the present suit only when the decree in the previous suit is set aside and. therefore, they are liable to pay ad valorem court-fee under Section 7(iv) (c) of the Court-Fees Act.

3. It is quite true. as pointed out by Meredith, J. in Ramautar Sao V/s. Ram Gobind Sao, ILR 20 Pal 780: (AIR 1942 Pal 60) that in cases of this kind we must ask ourselves. what is the real nature of the plain 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. But in applying these principles, care must be taken, not to import into the plaint anything, which it does not really contain, cither actually or by necessary implication. In construing the plaint, we must take it as it is. and not as we may think it ought to have been Therefore, a relief not asked for, cannot be imported so as to charge court-fee thereon. Since, however, the Court must look to the real nature of the plaint, it becomes necessary to decide whether a claim for declaration and consequential relief has been made by necessary implication, and if that has been done, then the court-fee must be held to be payable on ad valorem basis. We have, therefore, to examine the plainl in the present suit in order to determine if it carries be neccssary implication a prayer for soiling aside the compromise decree which was passed in the previous suit.

4. In approaching this question, we must bear in mind that there is a dislinclion between decrees or documents which are wholly void and decrees or documents which are not wholly void, but voidable on account of causes like fraud, mistake or undue influence. The importance of this distinction lies in the fact that so far as wholly void decrees or documents are concerned, they do not require to be set aside since they have no existence in the eye of law and only a finding of fact is necessary to give the plaintiffs the necessary relief. In cases of voidable decrees or documents, on the other hand, it is necessary to have them set aside before the relief claimed in the plaint can be granted to the plaintiff. It is well established that in cases of the latter category, the Court has to make a declination in the true sense and, therefore, the true nature of the relief claimed in such cases, is that of decimation and consequential relief, as envisaged in section 7(iv) (c) of the Court-Fees Act. But the cases of the former category, siand on a different footing, because in those cases no declaration is necessary in the true sense and only a finding of fact is necessary to the effect, that the impugned document or decree is whollv void and as such it has no existence in the eye of law. so as to st