Judgment Kamla Sahai, J. 1. The Taxing Officer has made this reference to me as Taxing Judge. The only question for consideration is whether the plaintiffs are liable to pay on their memorandum of appeal in this Court ad valorem Court-fee under Section 7 (iv) (c) on Rs. 19,000, at which they have valued the suit and the memorandum of appeal, or have properly paid the fixed Court-fee under Article 17 (iii) of Schedule II of the Court-fees Act. 2. The following genealogical table of the plaintiffs family is useful in appreciating the facts of the case: JAGU LAL | ___________________________________________________ | | | sheo Prasad Sahu Ganesh Parsad Sahu Lakshmi =Gulabo Kuer Prasad | Sahu Sheonandan Prasad Gupta | | | Kedarnath Gupta(Plaintiff No.1) Dulhin MOti Kuer | (defendant No.2) Kanhaiya Prasad(minor)(Plaintiff No.2) 3. Shortly stated, the plaintiffs case is that Sheo Prasad and Ganesh Prasad instituted Title Suit No. 41 of 1939/36 of 1942 for partition of the family properties against Lakshmi Prasad, who was defendant No. 1. Kedar, plaintiff No. 1 of the present suit, i.e., Title Suit No. 24 of 1955, was impleaded in that suit as minor plaintiff No. 3 under the guardianship of Ganesh Prasad, and plaintiff No. 2, who is still a minor, was not a party at all. Gulabo Kuer, defendant No. 1 of this suit, was defendant No. 3 in the earlier suit. That suit was decreed; but the Court held, on issue No. 1, as follows: "Defendant No. 3 is in fact married to defendant No. 1 in sagai form and the two defendants Nos. 1 and 3 have been for some time past living together as husband and wife along with plaintiff No. 3. Defendant No. 3, being the grandmother of the minor plaintiff No. 3, is the natural guardian of the aforesaid plaintiff No. 3 since the latter has been for long neglected and virtually abandoned by his grandfather, plaintiff No. 1. From my above findings, it follows conversely that plaintiff No. 3 never lived with, nor is under the guardianship of, plaintiff No. 2, and, as such, the latter cannot sue as his guardian." 4. The plaintiffs suit has been dismissed, and hence they have filed this first appeal in this Court. At the time of presentation of the appeal, the prayer in their plaint stood as under: "1. The plaintiffs suit has been dismissed, and hence they have filed this first appeal in this Court. At the time of presentation of the appeal, the prayer in their plaint stood as under: "1. That, on the submissions made above, it be declared that, the plaintiffs being the only surviving coparceners of their family and the judgment and decree in Title Suit No. 41 of 1939/36 of 1942 being illegal, erroneous and not binding on them, the defendants cannot get any relief or prosecute any proceedings on their basis against the plaintiffs. "2. That the costs of this suit be awarded to the plaintiffs. "3. That any other relief or reliefs to which the plaintiffs may be entitled be awarded to them". Subsequently, the plaintiffs-appellants filed an application in this Court for amendment of their plaint by deleting relief No. 1 as it stood and substituting in its place the following relief: "That, on the submissions made above, it be declared that the judgment and decree in Title Suit No. 41 of 1939/36 of 1942 is not binding upon the plaintiffs. A Bench of this Court allowed this application by an order dated the 25th March, 1960. In the course of the order, their Lordships stated: "The petitioners, however, state that that portion of the relief which is redundant may be deleted leaving only the relief of a declaratory character. The petitioners are prepared, in the appeal, to have their suit heard on that footing and, if any difficulty in their way arises on account of Sec. 42 of the Specific Relief Act, they hope to convince the Court that the suit would not fail on that ground. In that view of the matter, the prayer of the petitioners must be allowed." 5. It is manifest that relief No. 1 is the main relief, and the other two reliefs are immaterial for the purposes of Court-fee. Mr, Kanhaiyaji, who has appeared on behalf of the appellants, has argued that relief No. 1, as it now stands, clearly represents a prayer only for a declaratory decree, and hence the fixed Court-fee paid under Article 17(iii) of Schedule II is sufficient. In support of his argument, he has relied upon a Full Bench decision of the Allahabad High Court in Sri Krishna Chandra V/s. Mahabir Prasad, ILR 55 All 791 : (AIR 1933 All 488). In support of his argument, he has relied upon a Full Bench decision of the Allahabad High Court in Sri Krishna Chandra V/s. Mahabir Prasad, ILR 55 All 791 : (AIR 1933 All 488). On the other hand, the learned Government Pleader has argued that the Court should look not only to the form but to the substance of the plaint. He has also urged that, if the necessary consequence of a declaration sought by the plaintiff in a suit is that a previous decree passed against him stands set aside and he is relieved of the obligations arising thereunder, it should be held that his prayer is not only for a declaratory decree but also for consequential relief. In support of his argument, he has placed reliance upon a Full Bench decision of the Oudh Chief Court in Mt. Rup Rani V/s. Bithal Das, ILR 13 Luck 628: (AIR 1938 Oudh 1). 6. The Court-fees Act is a fiscal enactment, and has, therefore, to be strictly construed. At the same time, attempts are commonly made by, or on behalf of, plaintiffs to put the plaint in the garb of a plaint in a declaratory suit and to use such language as to conceal the real purpose of the suit, i.e. to obtain a consequential relief. In this connection, I may quote an observation of Jenkins, C.J. in Deokali Koer V/s. Kedar Nath, ILR 39 Cal 704: "It is a common fashion to attempt an evasion of Court-fees by casting the prayers of the plaint into a declaratory shape. Where the evasion is successful it cannot be touched, but the device does not merit encouragement or favour." 7. The principle which is, therefore, firmly established is that, in deciding upon the question of Court-fees, the Court should not be guided merely by the form of the plaint or the words in which the prayer is couched. The entire plaint has to be looked into, and the real purpose of the suit has to be ascertained. If the plaintiff seeks a declaration as well a consequential relief, there is no difficulty at all. If, however, he merely seeks a declaration, the Court has to consider whether a consequential relief is implicit in the declaration, or; in other words, whether the effect of making the declaration would be that the plaintiff would get a consequential relief also. If the plaintiff seeks a declaration as well a consequential relief, there is no difficulty at all. If, however, he merely seeks a declaration, the Court has to consider whether a consequential relief is implicit in the declaration, or; in other words, whether the effect of making the declaration would be that the plaintiff would get a consequential relief also. If that is so, the provision, applicable must necessarily be Section 7 (iv) (c) of the Court-fees Act. 8. At the same time, it is important to remember that, when the plaintiff frames his plaint in the form of a declaratory suit, he takes the consequences. If the Court trying the suit comes to the conclusion that he is not entitled to a declaration as he has not asked for a further relief which he was able to seek, his suit will fail. Hence, in deciding which provision of the Court-fees Act would be applicable, the Court must ordinarily read the plaint as it is, and must not read it with the addition of a relief which has not been asked for. Reference may be made to the observations of a Bench of the Allahabad High Court in Kailash Narain V/s. Gopi Nath, AIR 1937 All 411 which is as follows: "The plaintiff is entitled to frame a suit in any manner he likes and there is no duty case upon the Court to give him advice that unless he seeks further relief his suit may not be successful. The plaintiff takes the consequences of his selection and he has the risk of his suit being dismissed if later on it is found by the Court that the case was one in which a further relief should have been asked by the plaintiff." I may also refer to the observations of Meredith, J. in a Bench decision of this Court in Ramautar Sao V/s. Ram Gobind Sao, ILR 20 Pat 780 : (AIR 1942 Pat 60), with which Sinha, J. (as he then was) has associated himself in the Full Bench decision in Mt. Rupia V/s. Bhutu Mahton, AIR 1944 Pat 17, as follows: In applying these principles, however, caution must be observed so as not to import into the plaint anything which it does not really contain, either actually or by necessary implication. Rupia V/s. Bhutu Mahton, AIR 1944 Pat 17, as follows: In applying these principles, however, caution must be observed so as not to import into the plaint anything which it does not really contain, either actually or by necessary implication. In construing the plaint we must take it as it is, not as we may think it ought to have been: Mohammad Ismail V/s. Liyaqat Hussain, AIR 1932 All 316 and Kalu Ram V/s. Babu Lal, ILR 54 All 812 : (AIR 1932 All 485) (FB). A relief not asked for cannot be imported so as to charge court-fee thereon : Khiri Chand Mahton V/s. Mt. Meghni, ILR 5 Pat 496: (AIR 1926 Pat 453). It is the plaintiffs own business if he chooses to take the risk of his suit failing on the ground that he has not asked for a necessary relief either declaratory or consequential. As it is put in Narayan Singh V/s. Dildar Ali Khan, ILR 3 Pat 915: (AIR 1925 Pat 210), where a plaintiff who is entitled to consequential relief frames his suit as one for a declaration only, the Court is not entitled to insist upon his praying for a consequential relief and paying the court-fee proper for such a suit; or, as it is put in ILR 55 All 791 : (AIR 1933 All 488) (FB), where the plaintiff deliberately omits to claim a consequential relief and contents himself with claiming a merely declaratory decree, the Court cannot call upon him to pay court-fees on the consequential relief which he should have claimed, although, he has omitted to do so." 9. In my judgment, the demarcating line in some oases is rather thin; but the test may be succinctly put as follows. If the necessary effect of a declaration granted in accordance with the prayer made in a suit is to grant a consequential relief also, for instance, the setting aside of a previous decree, and valorem Court-fee is undoubtedly realisable. If, on the other hand, a declaration made as prayed may or may not have that effect, the Court cannot insist that the plaintiff should pray for the consequential relief so that Court-fee may be charged from him on that basis. If, on the other hand, a declaration made as prayed may or may not have that effect, the Court cannot insist that the plaintiff should pray for the consequential relief so that Court-fee may be charged from him on that basis. The plaintiff has, in that case, taken the risks and his case would fail if the Court hearing it comes to the conclusion that it was necessary for him to ask for a further or consequential relief. 10. It is necessary now to consider the plaint in the present case in the light of the principles which I bave referred to above. The main ground upon which the plaintiffs seek a declaration that the decree passed in the previous title suit is not binding upon them is that plaintiff No. 1 was held in that suit not to have been properly represented, and plaintiff No. 2 was not a party. As the reliefs stand after amendment, it is quite clear that they have not made any prayer for setting aside the decree passed in that suit nor have they made any allegation that that decree was obtained fraudulently. It is not possible to say that the necessary consequence of grant of their prayer for declaration would be to set aside the decree passed in the previous suit. If the Bench hearing the appeal comes to the conclusion that the plaintiffs, could not obtain the declaration which they seek without making a prayer for setting aside the decree passed in the previous suit, this appeal and the suit would necessarily fail. That being so, I am of opinion that the Court-fee has been rightly paid on the basis that it is a declaratory suit governed, by Article 17 (iii) of Schedule II. 11. The view which I have expressed is supported by the decision in Sri Krishna Chandras case, ILR 55 All 791 : (AIR 1933 All 488) (FB). The facts in that case were very similar to those of the present case, and Sulaiman, C.J. said: "We accordingly hold that inasmuch as the plaintiff in this case merely asked for a declaration that the previous decree was not in any way binding upon him and was altogether void and ineffectual, his suit was one for obtaining a declaratory decree only and falls under Article 17 (iii) of the second schedule". 12. 12. The facts of the case of ILR 13 Ludk 628: (AIR 1938 Oudh 1), which has been relied upon by the learned Government Pleader, were different. One Munnu Lal had two sons, namely, Bithal Das by his first wife and Jagdish Prasad by his second wife, Musammat Roop Rani-Munnu Lal, for himself and as guardian of his minor son Jagdish Prasad as well as Musammat! Roop Rani, instituted a partition suit against Bithal Das. The suit was decreed. The second suit was instituted by Musammat Roop-Rani for herself and as guardian of her minar son Jagdish. Prasad for a declaration that the decree passed in the earlier partition suit was collusive illegal and void. It was alleged that Munnu Lal had acted in the earlier suit in collusion with Bithal Das. Although the prayer was put in the second suit in the garb of a prayer for declaration, it is manifest that the necessary effect of the declaration sought for would have been to set aside the previous decree which was passed in presence of the plaintiffs of the second suit. Srivastava. C. J., who delivered the judgment, observed; "In my opinion even though a consequential relief may not be expressly prayed for, yet if such a relief is implicit in the declaration and is a necessary consequence of it, it must be deemed to be included within the declaration prayed for in the suit. When a person who is a party to a decree asks for a declaration about the decree being illegal and void, the grant of such a declaration in his favour necessarily has the effect of setting aside the decree and relieving him of the obligations under it. I am, therefore, of opinion that the declaration claimed by the plaintiffs in the present suit carries with it the consequential relief of the setting aside of the decree." It was, accordingly, held that the plaintiffs had to pay ad valorem Court-fee under Section 7 (iv) (c) of the Court-Fees Act. I respectfully agree with the observations which I have quoted. I respectfully agree with the observations which I have quoted. In the present case, the plaintiffs claim is that the decree in the earlier suit is not binding upon them because plaintiff No. 1 was not really a party to the previous suit as he was a minor but was not represented by a person who could act as his guardian, and plaintiff No. 2 was actually not a party. The effect of such a declaration will not he necessarily to set aside the decree passed in the earlier suit. That being so, Musammat Roop Ranis case is, in my opinion, distinguishable. 13 For the reasons which I have given above, I hold that the appellants are liable to pay Court-fee in accordance with Article 17 (iii) of the second schedule, and that the Court-fee paid by them is, therefore, sufficient.