MODI, J.—The only question which we are called upon to decide at this stage is one of court-fee. We give below a few facts out of which the present question has arisen.

2. The appellants were defendants in the trial court. The plaintiffs respondents are sons of the respondent Bakhtawarlal who was impleaded as defendant No. 5 in the suit. The plaintiffs case was that their father Bakhtawarlal and the plaintiffs were members of a joint Hindu family, and that Bakhtawarlal sold certain property to defendants No. 1 to 4, namely, Sukhlal, Hukmichand, Kastoorchand and Gahrilal, by a sale-deed dated 10th June, 1944, for a sum of Rs. 800/- and that the said property was ancestral property of the family and had been sold to the vendees above-named without the consent of the plaintiffs and without any family necessity. The plaintiffs, therefore, prayed that the sale-deed executed by Bakhtawarlal in favour of the vendees be cancelled. The plaintiffs valued their suit at Rs. 6,000/- for purposes of jurisdiction. They alleged that they were in possession of the property in question and so paid a court-fee of Rs. 7/- only. The court-fee paid in the trial court was correct according to the Marwar Court-fees Act, Svt. 1988. The learned Civil Judge who tried the suit granted a decree in favour of the plaintiffs that the sale-deed dated the 10th June, 1944, was null and left the parties to bear their own costs. Defendants Sukhlal, Hukmichand and others filed the first appeal on 7.12.1951 against the judgment and decree of the trial court. They have paid a fixed court-fee stamp of Rs. 10/- only on the appeal. Learned counsel for the plaintiff-respondents have raised a preliminary objection that the court-fee paid by the appellants was insufficient.

3. It is urged by learned counsel for the defendants appellants that the correct provision of the Court Fees Act, which applied to their appeal was Art. 17(iii), Schdl. II. That Article provides that in suits to obtain a declaratory decree where no consequential relief was prayed for, the requisite court-fee was a sum of Rs. 10/-. It is contended, on the other hand, by learned counsel for the respondents that the plaintiffs suit was not one for a mere declaration only; but it was a suit for a declaration and a consequential relief and, therefore, Art. 17(iii), Schdl. II did not apply at all, but that the proper court-fee payable was under sec. 7(iv)(c) according to the amount at which the relief sought was valued in the plaint or memorandum of appeal, and that the plaintiffs had valued their claim for purposes of jurisdiction at a sum of Rs. 6,000/- and, therefore, defendants-appellants should have paid court-fee on that amount.

4. Now, we have no doubt that in order to determine the proper court-fee payable on a plaint in a particular case, the true principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matters. It is true further that caution must be observed so that nothing is imported into the plaint, which it really does not contain either actually or by necessary implication. It is also well-established that in construing the plaint, the court must take the plaint as it is and not as it ought to have been. Vide Kalu Ram Vs. Babu Lal (F. B.)(1) and Mt. Rupia Vs. Bhatu Mahton(2).

5. Applying the above principles to the plaint in the present case, we have hesitation in saying that the contention of learned counsel for the defendant appellants, that the plaintiffs merely asked for a declaration and did not pray for any consequential relief, is not borne out by facts. Learned counsel placed his reliance on the fact that it was not necessary for the plaintiffs to claim any consequential relief in the present case, as they were in possession of the property in dispute. We may point out, however, that even though the plaintiffs were in possession of the suit property, their suit, as laid, was clearly not for a mere decla

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