RAMKISHUN MAHTON Vs. NERO DEVI

JUDGEMENT

(1.) The petitioners are the plaintiff's 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. 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.