Das J. :

1. This application in revision is directed against an order of the learned Subordinate Judge of Dhanbad dated 4-3-1952, by which the learned Subordinate Judge has asked the petitioners, who were plaintiffs in the suit pending before the learned Subordinate Judge, to pay court-fees on Rs. 66,666 and odd annas in the following circumstances.

2. The petitioners brought a suit numbered Title Suit No. 54 of 1950 in which they made the following prayers in paragraph 17 of the plaint : "Paragraph 17. The plaintiffs pray--

(a) For a decree for declaration that the plaintiffs have title to the 2/3rd share in the properties described in schedule II below and that the partition of 1911 referred to in the plaint was illusory, fraudulent, inequitable and void.

(b) For a decree for partition by metes and bounds of the properties described in schedule I.

(c) For costs, of the suit together with interest.

(d) For any other or further reliefs which the plaintiffs may be found entitled to."

The facts which the petitioners alleged in support of their prayers were the following. Ramhriday Chakravarty had four sons. Rameshwar, Kailash (father of plaintiffs 1 and 2). Ananta (father of plaintiffs 3 and 4 and husband of plaintiff No. 5), and Girish, who is defendant No. 1 in the suit. Ramhriday died leaving the aforesaid four sons who came into possession of the joint family properties. Subsequently, Rameshwar died leaving behind two widows, Rohini and Motibaia. During the life time of Rameshwar, in the year 1911, a memorandum of partition was written which was signed by the other three brothers and according to which certain properties mentioned in Schedule II were given to Rameshwar. In the year 1931, the two widows of Rameshwar brought a title suit. This suit was compromised and the memorandum of partition of 1911 was affirmed. The present petitioners, it appears, were parties to the compromise. The case of the petitioners as sought to be made out in the plaint was that the memorandum of partition of 1911 was an illusory, make-believe arrangement which was not given effect to. In Paragraph 3 of the plaint it was alleged that the other three brothers of Rameshwar signed the deed of partition at the dictation of Rameshwar without knowing the implication and effect of the document; in paragraph 9 it was stated that the distribution of properties under the document of 1911 was grossly unfair and inequitable and the document was brought into existence for some ulterior motive by practising fraud on the other three brothers.

With regard to the compromise decree the case of the petitioners as sot out in the plaint was that the two widows of Rameshwar were allowed to hold possession of the properties entered in the document of 1911 as allotted to the share of Rameshwar, by way of maintenance only and it did not give any other right to the two widows. Two schedules were appended to the plaint. Schedule II gave details of the properties which were shown as allotted to Rameshwar by the document of 1911 and which were in possession of the two widows after Rameshwars death. Schedule I gave details of all the properties, including the properties of schedule II. In paragraph 12 of the plaint the petitioners said that the defendant had filed a succession certificate case in the court of the Sub-ordinate Judge and in the application for a succession certificate the defendant Girish, one of the brothers of Rameshwar, claimed that he was the sole heir of Rameshwar after the death of the two widows. The petitioners alleged that this claim of Girish had thrown a cloud on their title, and in paragraph 14 the petitioners said that they had demanded partition of the properties described in schedule I, but partition had been refused. Then they said :

"Hence the plaintiffs are compelled to sue for a declaration of their right to the properties described in schedule II and for partition of the properties described in schedule I".

Tn paragraph 18, the petitioners said that the first relief marked (a) had the value of Rs. 50,0007-and the total value of the properties was Rs. 1,00,000/-. They paid court-fees of Rs. 20-10-0 for the declaratory relief and a separate court-fee for the relief of partition.

3. The learned Subordinate Judge, Mr. A. N. Sahay, who was presiding over the court of the Subordinate Judge at Dhanbad when the suit was instituted, considered the report of his serishtadar on the plaint filed and also heard the lawyer of the petitioners. As no notice had gone to the defendant at that stage, he had no occasion to hear the lawyer for the defendant. By order No. 7 dated 16-1-1951, he held that relief No. (a) of the plaint was unnecessary and the suit being a suit for partition only, the court-fees already paid were sufficient. After the defendant had entered appearance, the question of courtxfees was again raised, and a preliminary issue, namely issue No. 2, was framed. This issue was tried as a preliminary issue by the learned Subordinate Judge who succeeded Mr. A. N. Sahay. This Subordinate Judge held that the suit so far as Schedule II properties were concerned, was really a title suit for a declaration of title with conseciuential relief, in the guise of a partition suit. He held that Section 7(iv)(c) of the Court Pees Act applied and he further came to the finding that the proper value of the 273rd interest claimed by the petitioners in schedule II properties was Rs. 66,6567-. He asked the petitioners to pay court-fees on that amount.

4. Mr. S. C. Mazumdar has argued the case on behalf of the petitioners. His first contention is that the order of 16-1-1951 passed by Mr. A. N. Sahay was final as between the parties, under Section 12, Court Fees Act, and it was not open to Mr. Sahays successor to re-open the question of court-fees at the instance of the defendant. He has contended that the successor of Mr, A. N. Sahay had no jurisdiction to pass the order which he passed on 4-3-1952. There are, in my opinion, two answers to this contention. The first answer is that Section 12 has no application where the question for decision is as to the class under which a suit falls and not merely of valuation in that class. Sub-section (1) of Section 12 on which Mr. Mazum-dar relies, states inter alia that every question relating to valuation for the purpose of determining the amount of any fee chargeable on a plaint shall be decided by the court in which the plaint is filed and such decision shall be final as between the parties to the suit. Strictly speaking, the question here is not one of valuation only; the question is what is the real nature of the suit and the category in which it falls. A. N. Sahay thought, without hearing the defendant, that the suit was not of the category contemplated by Section 7(iv)(c). He thought that the suit was a suit for partition in which court-fees have to be paid in accordance with Article 17 of Schedule II of the Court-fees Act. When the defendant appeared, he raised the question of court-fees with particular reference to the nature of the suit and the class under which it came. Mr. Kedarnath, the then Subordinate Judge, held that the suit came within the category contemplated by Section 7(iv)(c). In my opinion, Section 12, Court-Fees Act, has no application where the question is as to the nature of the suit and the class under which it comes. The second answer to the contention of Mr. Mazumdar is that it was open to the defendant to raise the question of court-fees and a decision given without hearing him could not be final so far as he was concerned. Mr. Mazumdar contended that the question of sufficiency of court-fees was one between the plaintiffs and the State, and the defendant had no locus standi in the matter, and he relied on certain observations made in -- Ramkhelawan Sahu v. Surendra Sahi : AIR 1938 Pat 22 (FB) (A). Those observations have no application in the present case, where the decision as to court-fees was given without hearing the defendant and before the defendant entered appearance. Mr. Mazumdar also relied on a single Judge decision of the Madras High Court in -- Sankaranarayana v. Vasudeva1 AIR 1949 Mad 395 (B) where it was held that an error committed by a judicial officer in deciding the adequacy of court-fees can only be corrected under the provisions of Section 12, Clause (ii) of the Court Fees Act. This Madras decision can be distinguished on the ground that the question there was not one of category or the class under which the suit came. There are, however, other decisions where a different view has been taken. I refer to Mt. Gangoo v. ML Saloo : AIR 1941 Nag 217 (C) whore it was pointed out that a decision as to court-fees is not final within the meaning of Section 12 unless it is reached after both sides have had a chance to be heard. In -- Sideshwari Prosad v. Bam Kumar Rai : AIR 1933 Pat 234 [LQ/PatHC/1933/19] (D) it was observed that the question of the sufficiency of the stamp on a memorandum of appeal must always be regarded as open until the appeal is finally heard and disposed of. In the Full Bench decision of the Allahabad High Court in -- Amjad All v. Muhammad Israil 20 All 11 (E) it was held that the decision of the court on a question of court-fees which would be final as between the parties to the suit must be a decision made between the parties on the record and after they had an opportunity of being heard, and not a decision based upon the report of a Munsarim before the plaint or memorandum of appeal is filed and therefore before any parties are before the court. The same view was also.expressed in -- Chhotey Singh v. Surat Singh : AIR 1942 Oudh 385 (F).

5. For these reasons, I would overrule the first contention of Mr, Mazumdar.

6. The crux of the matter is if the present suit brought by the petitioners is really a title suit in the guise of a partition suit; or is it a partition suit pure and simple in which an unnecessary declaration as to the partition document of 1911 has been asked for The contention of Mr. Mazumdar is that relief No. (a) relating to a declaration about the partition of 1911 is unnecessary, and he has relied on certain observations made by the Privy Council in -- Petherpermal Chetty v. Muniandi Servai 35 I.A. 98 (G), the observations being at page 104. Dealing with the question of limitation raised in that case, their Lordships referred to a particular conveyance in that case and said that being an inoperative instrument, it did not bar the plaintiffs right to recover possession and that it was unnecessary for the plaintiff to have it set aside as a preliminary to obtaining the relief which he claimed. Mr. Mazumdar has urged that it is unnecessary for the petitioners to have the partition of 1911 set aside before they can obtain the relief of partition.

The answer to Mr. Mazumdars argument is that we must take the plaint as it stands. In construing the plaint the Court cannot import a relief which has not been asked for; nor can it ignore a relief which the plaint in specific terms asks for. It is now well settled that in so far as a suit purporting to be a suit for partition is really in the nature of a title suit, ad valorem court-fees are payable (see -- Ramautar Sao v. Ram Gobind Sao : AIR 1942 Pat 60 [LQ/PatHC/1941/54] (H)). It was pointed out in that case that a distinction must be drawn between voidable documents and wholly void documents and between declarations in the true sense and declarations so called. In the case under our consideration, I doubt if the partition document of 1911, affirmed later by a compromise decree to which the petitioners were parties, can be said to be void in the sense of the decision in -- : AIR 1942 Pat 60 [LQ/PatHC/1941/54] (H). In that case the document was executed by a minor who could not enter into a contract at all. In the case before us, the three brothers of Rameshwar, according to the plaint, had signed the partition document of 1911; it had been affirmed also in the compromise decree. The plaint itself made these averments and then in specific terms asked for a declaration that the partition document of 1911 was illusory, fraudulent, inequitable and void. We must remember that the word Void is sometimes very loosely used, even to include documents which are really voidable and not ab initio void. In my opinion, the principle to be applied in the present case is the principle laid down in the Full Bench decision of --- Mt. Rupla v. Bhatu Mahton : AIR 1944 Pat 17 [LQ/PatHC/1943/83] (I) namely, when in substance the plaint aims at setting aside a deed formally executed, or specifically asks for a declaration that the document is not binding, and also asks for possession by means of partition as a consequential relief, as has been done in the present case, Section 7(iv)(c) is attracted and ad valorem court-fees have to be paid. Under Section 7(iv)(c) the plaintiff can put his own valuation, but if the valuation is arbitrary, the court can fix a reasonable valuation (see --Salahuddin Hyder v. Dhanoolal AIR 1045 Pat 421 (J)).

7. For the reasons given above, I hold that the decision of the learned Subordinate Judge on the preliminary issue is correct and there are no grounds for interference with that decision.

8. In the result, the application fails and is dismissed with costs. Hearing fee Rs. 48/- only.

Imam, C. J.

9.I agree.