JUDGMENT

1. The taxing Judge has referred two questions of law to a Full Bench. The case itself has not been referred to us. Section 5, Court-fees Act, has in no way been contravened. The final order will be passed by the taxing Judge himself in the light of the observations of this Full Bench.

2. The suit was instituted by the nephew and the son of Sunder Lal, who had executed a mortgage deed on 20th December 1918 in favour of the defendant-appellant Kalu Ram. In the mortgage suit the present plaintiffs also were impleaded under the guardianship of their grandmother. The suit was decreed and a preliminary decree was passed on 16th September 1925, which resulted in a final decree on 2nd April 1927. In the present suit the plaintiffs sought to avoid the mortgage deed on the ground that it was fictitious and without consideration and legal necessity, the compromise on the ground of fraud, and the decree on the ground of negligence and collusion of the guardian. Two main reliefs claimed were as follows : (1) The mortgage-deed dated 20th December 1918, and registered on 21st December 1918 may be adjudged void and ineffectual as against the plaintiffs and it may be cancelled. (2) The compromise and the preliminary decree, dated 16th September 1925, and the absolute decree, dated 2nd April 1927 of Court of the Subordinate Judge of Jhansi In re Kalu Ram v. Sunder Lal may be cancelled.

3. The plaintiffs valued the first relief at Rs. 5,000 and paid Rs. 10 as court-fee thereon and valued the second relief at Rs.- 6,276-3-9 and paid another Rs. 10 on it. A difference arose between the Registrar, who is the taxing officer of this Court, and the appellant's counsel, and the former referred the matter to the taxing Judge, who has referred the following questions to us : (1) What provisions of the Court-fees Act determine the court-fee payable in respect of relief No. 1, i.e., that the mortgage-deed in suit may be declared void and ineffectual as against the plaintiffs, and that it may be can-celled? (2) What provisions of the Court-fees Act determine the court-fee payable in respect of relief No. 2, i.e., that the specified compromise and decrees may be cancelled?

4. The main question for consideration is whether the reliefs fall u/s 7(4)(c), and are to obtain a declaratory decree where consequential relief is prayed, or under Article 17(3), Section 2, to obtain a declaratory decree where no consequential relief is prayed, and if not, whether under Article 1, Section 1, as a plaint not otherwise provided for in the Court-fees Act where the amount or value of the subject-matter in dispute can be ascertained, or under Article 17(4), Section 2, that is, a suit not otherwise provided for and where it is not possible to estimate at a money value the subject-matter in dispute. It is quite clear that if the reliefs fall under either of the first two provisions of law, the last two general articles would not be applicable.

5. The learned Counsel for the appellant relies strongly on the Full Bench ruling of this Court in Karam Khan v. Daryai Singh [1883] 5 All. 331 in which it was laid down that a suit in which the relief for the cancelment of a mortgage-deed is claimed is in the nature of a simple declaratory suit. The report of the case is very brief and the judgment is also very short. The original plaint in the vernacular is not available in this Court. If the learned Judges meant to lay down that a suit for the cancellation of an instrument under the provisions of Section 39, Specific Relief Act, was a mere declaratory suit u/s 2, Article 17(3), then with great respect we are unable to agree with that view. The only reported cases brought to our notice in which this ruling has been followed are Hira Lal v. Wali Bhagat [1889] A.W.N. 124. and Durga Bakhsh v. Mohammad Ali Beg [1898] 1. O.C. 123. We may point out that the Pull Bench ruling has been expressly dissented from by some of the other High Courts: vide Samiya Mavali v. Minammal [1900] 23 Bom.