JUDGMENT Bennett, J. - In this case it has been reported by the office that there is a deficiency of Rs. 4/8/- on the appeal in this Court, and a deficiency of Rs. 57/8/- in the trial Court, and of the same amount in the lower appellate Court. A suit was brought by the appellant for a declaration that a sale deed was fraudulent and fictitious. It is suggested that this involves cancellation of the sale deed and that the case accordingly falls u/s 7(iv-A) of the Court-fees Act as amended in 1938. Consequently Court-fee is payable in this Court on one-fifth of the amount for which the instrument was executed, the plaintiff not being a party to it. On this calculation there is a deficiency in this Court of Rs. 4/8/-. As regards the Courts below, the Amendment Act of 1938 does not apply as the suit was instituted and the first appeal preferred before that Act came into force. But it is suggested that the suit was u/s 39 of the Specific Relief Act, and therefore ad valorem court fee should have been paid. 2. The office report is contested, and learned counsel for the appellant has referred to certain cases of this Court as showing that such a suit is merely of a declaratory character and involves no consequential relief. 3. In AIR 1931 72 (Oudh) it was held by a single Judge of this Court that a suit to declare a deed of gift and a sale-deed fictitious and void, and that the property covered by these deeds was capable of being attached and sold in execution, was purely a declaratory suit inasmuch as the prayer that the property covered by the deeds was to be declared to be capable of being attached and sold was implicit in the prayer that the deeds conveying the property should be held to be void. The facts in the present case are somewhat similar as the appellant also asked for a declaration that the sale deed does not stand in his way in realising the amount due in respect of a decree obtained by him. 4. The facts in the present case are somewhat similar as the appellant also asked for a declaration that the sale deed does not stand in his way in realising the amount due in respect of a decree obtained by him. 4. In a more recent case of this Court, AIR 1940 248 (Oudh) it was held that where the plaintiff filed a suit for the cancellation of a sale-deed before the Amendment Act of 1938 came into force, on the ground that it was obtained from her by fraud and under influence and that she herself was in possession, she could not be required to pay ad valorem court-fee on the market value of the property. 5. In a case which came before a Bench of this Court recently, Mst. Mashriquunissa v. Parmeshwar Dayal Upadhya (F.C.A. No. 8 of 1937) a suit had been brought for a declaration that a certain deed of gift was fictitious and void, and court-fee was paid for declaration only and not for consequential relief. The adequacy of such court-fee was not challenged. 6. The office have referred to a case of the Allahabad High Court, Kalu Ram Vs. Babu Lal and Others, AIR 1932 All 485 but the ruling in this case is merely to the effect that a suit for the cancellation of an instrument u/s 39 of the Specific Relief Act is not a declaratory suit, and that it involves a consequential relief. 7. This ruling would not be applicable in the present case if it is considered that the suit is not a suit u/s 39 of the Specific Relief Act but rather a suit u/s 42 of that Act. No request was made by the appellant for the cancellation of the instrument, and his Counsel argues that if the deed of sale be found to he fictitious as alleged, it is void ab initio and cancellation is not necessary. 8. Some support for this view is to be found in a Bench case of this Court, AIR 1939 125 (Oudh) In that case a suit was brought for a declaration inter alia that a will was void. It was contended that as the will was challenged on the ground of its not being genuine and not being registered under the law, it was not necessary for the plaintiff to ask for its cancellation. It was contended that as the will was challenged on the ground of its not being genuine and not being registered under the law, it was not necessary for the plaintiff to ask for its cancellation. It was said with reference to this argument: This argument would perhaps have held good if the plaintiff had attacked the will as void only; but he also challenges it, in the alternative, as being voidable on account of having been brought about by undue influence, and the fact that the plaintiff was not content to challenge it on the ground of its being void, itself shows that he is not sure of the will being void as he alleges. 9. There appears to be no such complication in the present case. There is an express allegation that the will is fraudulent and fictitious which would imply that it was void ab initio. I think therefore that there is ground for holding that the suit involves no consequential relief. It is true that Section 39 of the Specific Relief Act provides for suits to have a written instrument adjudged void or voidable and also provides that the Court may, in its discretion, so judge it, and order it to be delivered up and cancelled. But the suit was not in the present case brought expressly under this section, and the section leaves it to the discretion of the Court to cancel the instrument. I do not consider in these circumstances that I should be justified in finding that the present suit necessarily involves a consequential relief. I accordingly reject the office report and hold that the proper court-fee has been paid.