S. Natarajan, J.
1. The plaintiff in O.S. No. 138 of 1972 on the file of the Court of the Subordinate Judge of Erode, who has been called upon to pay additional Court-fee of Rs. 4,499.50 p. has preferred this revision petition to canvass the propriety of the order.
2. With regard to the properties of one Rangaswami Naidu, there was a partition suit in OS. No. 134 of 1969 to which the members of the family of Rangaswami Naidu were parties. Rangaswami Naidu had two sons of whom one Venkataswami Naidu was the second. In the partition suit, not only Venkataswami Naidu, but his son, the ninth defendant in the present suit were made parties. Ultimately the suit was compromised on 9th July, 1969 and a compromise decree was passed in the said suit under the terms of which, the A schedule properties in the present suit were given to Venkataswami and his minor son, and in addition, the B schedule property herein was given to the minor to be enjoyed by him absolutely. In the present suit, the plaintiff who is the widow of Rangaswami Naidu claims that subsequent to the compromise decree she came to know through her son Venkataswami that he had already been married to one Janaki and as such, Venkataswami’s marriage with the tenth defendant Krishnaveni who is the mother of the minor ninth defendant was a void marriage. The further case of the plaintiff is that the compromise in the earlier suit proceeded on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and the ninth defendant an off-spring of lawful wedlock, and was therefore entitled to a share in the joint family properties which were sought to be partitioned in O.S. No. 134 of 1969. Venkataswami died subsequent to the compromise decree and, has left behind him his wife Krishnaveni the tenth defendant herein, whose valid marriage with Venkataswami is impugned and a minor son and a daughter who are respectively the ninth and the eleventh defendants in the present suit. According to the plaintiff, the ninth and eleventh defendants are only the illegitimate children of Venkataswami and will, therefore have no rights whatever in the A and B schedule properties and are bound to re-deliver those properties in their possession to the plaintiff and the other heirs of Rangaswami Naidu. The prayer in the suit is as follows:
The plaintiff, therefore, prays that the Court may be pleased to pass a decree:
(a) declaring that the plaintiff is entitled to items 1 and 2 in the B schedule to the plaint and issuing a permanent injunction restraining defendants 9 to 11 from disturbing or interfering with the plaintiff’s possession of the same or from collecting the rents for the said items;
(b) directing that the A schedule properties be divided into 18 shares by metes and bounds and ordering delivery of 10 such shares to the plaintiff ;
(c) directing items 3 to 6 in B schedule be divided into 9 shares and ordering delivery of one such share to the plaintiff;
(d) ordering defendants 9 to 11 to pay the costs of the suit:
(e) granting the plaintiff such other and further reliefs as may be Just and necessary.
3. In accordance with her prayers in the suit, the plaintiff valued the relief of declaration of title and permanent injunction with reference to items 1 and 2 in the B schedule under Section 25 (b) of the Court-fees Act. As regards partition of one half of the A Schedule properties and possession, she valued the relief under Section 37 (1) of the Court-fees Act and paid Court-fee on half of the market value. Lastly, she valued her one-ninth share in the several items of suit properties under Section 37 (1) of the Court-fees Act and paid Court-fee thereon.
4. The Court-fee Examiner issued a check slip raising an objection that, since the plaintiff herself was a party to the compromise decree in the earlier suit, she should get the decree cancelled under Section 40 of the Court-fees Act before further reliefs of declaration and partition in respect of the properties covered by that decree were sought for. He also raised a query as to whether it would be open to the plaintiff on her own assumption, to treat a valid decree of a Court as not binding without the said decree being cancelled by a competent Court on proved facts. This view was upheld by the learned Subordinate Judge and he called upon the plaintiff to pay the deficit Court-fee of Rs. 4 : 499-5cP-
5. Mr. Sivasubramaniam, learned Counsel for the petitioner (plaintiff) vehemently contends that the opinion of the Court-fee Examiner which has found favour with the lower Court is not in accordance with law and that the plaintiff was entitled to ignore the compromise decree and straight–away ask for the reliefs of declaration, partition and possession. According to him, the entire compromise decree is vitiated by the fact that the compromise was entered into on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and that the ninth defendant was his legitimately born son. He would therefore, argue that when it is now found that the basis on which the parties entered into the compromise was misconceived, the plaintiff is entitled to ignore the compromise decree and she was not bound to ask for the decree being set aside. It is conceded by him that the granting of the reliefs asked for in the present suit may involve the setting at nought of the compromise decree, but his contention is that that cannot alter the state of affairs in any manner.
6. In support of his contention Mr. Sivasubramaniam placed reliance on a large number of authorities which are mentioned below. In Arunachalam Chetty v. Rangaswami Pillai (1915) I.L.R. 38 Mad. 922 (F.B) : 28 M.L.J. 118 : 28 I.C. 79, a Full Bench of this Court held that a suit for a declaration that a mortgage decree was not binding on the plaintiff and for an injunction restrairing the defendant from executing the same was a suit for a declaratory decree with a consequential relief within the meaning of Section 7 Clause (iv) (c) of the Court-fees Act (“Central Act VII of 1870) and ad valorem court-fee on the valuation fixed in the plaint was payable. Adinarayana v. Rattamma (1944) 1 M.L.J. 497 : 57 L.W. 392 : A.I.R. 1944 Mad. 408 (2), and Hameed Rowther v. Mohideen Pichai (1944) 2 M.L.J. 33 : 216 I.C. 192 : A.I.R. 1948 Mad. 451 are cases where it was held that where a conveyance deed was alleged to be sham and nominal it was wholly unnecessary for the plaintiff to ask for a cancellation of the deed and pay Court-fee thereon. In Rambharosa Lal v. Bindi Devi , it was held that when a plaintiff wanted to make out a case that he was not a party to a sale deed and the signatures thereon purporting to be those of him were rank forgery, it was not necessary for him to get a consequential relief to have the document cancelled. In Somasunderam Pillai v. Janaki Ammal (1955) 1 M.L.J. 310 : (1955) 68 L.W. 144, it was held that where a suit was brought on behalf of a person described as of unsound mind by his next friend for a declaration that a deed of gift executed by the plaintiff was void and not binding on him and for an injunction to restrain the defendant from interfering with the plaintiff’s possession, the plaintiff was entitled to ignore the existence of the document as being void and of no effect. Abdulla v. Subramanyan Pattar (1936) 71 M.L.J. 383 : 43 L.W. 715 : A.I.R. 1936 Mad. 470, laid down that when a plaint alleged that in a prior suit filed to enforce a mortgage executed by some members of the tarwad the plaintiffs, who were then minors were represented by their guardian and the suit ended in a razinama decree and the guardian had acted mala fide and negligently and consequently the decree was fraudulent and collusive, the minors could not be deemed to be parties to the prior decree and the plaint merely involved a declaration as to the decree being a nullity so far as the plaintiffs were concerned and Court-fee was payable under Article 17-A of schedule II of the Court-fees Act. Similarly, Krishnaswami Nayudu, J., held in Azima Bi v. Zohara Bi , that a decree against a minor without representation by a proper guardian is a nullity and in a subsequent suit by the minor for possession, the minor was not bound to have the decree set aside and Court-fee under Section 7 (IV-A) of the Court-fees Act was not payable. In Akhondala v. Damodara , Govinda Menon, J., held that though a minor was eo nomine a party to an earlier deed of partition, he was entitled to ignore the deed and file a suit for partition and was not bound to have the earlier partition deed set aside. Reliance was also placed on Asaram v. Ludheshwar A.I.R 1938 Nag. 335, to contend that it is only in the case of a voidable instrument that a cancellation of the deed should be sought for and such a course need not be resorted to in the case of void instruments. As already stated, according to the counsel for the petitioner, the compromise decree was ab initio void and did not therefore pose an insuperable obstacle in the way of the plaintiff getting reliefs in her present suit.
7. To buttress his contention that though the earlier suit resulted in a compromise and the compromise was incorporated in a compromise decree, the decree was not an insurmountable obstacle to the plaintiff asking for the reliefs of declaration, partition and possession and the plaintiff was entitled to treat the decree as non est and ask for the reliefs, Sivasubramanian placed reliance on Prem Prakash v. Mohan Lal A.I.R. 1943 Lah. 268, Bosant Lal v. Rameswar Prasad , and Suk Dev Sahi v. Kapil Devi Singh . These decisions enunciate the rule that where a decree is passed in consequence of a compromise and gives effect to the will of the parties without an adjudication by the Court itself, the contract cannot be said to have any greater sanctity in spite of the fact that the command of a Judge has been added to it. In further support of his argument, the petitioner’s counsel also cited Ram Kishun v. Smt. Nere Devi , wherein it was held that when a plaintiff alleged in his subsequent suit that an earlier compromise decree based on a forged compromise petition was wholly void and without jurisdiction, the plaintiff only wanted a finding regarding the void nature of the compromise decree and not a declaration and therefore, he was entitled to pay fixed court-fee under schedule II, Article 17 (6).
8. Yet another decision placed for consideration is K.H. Md. Ishaque Sahib v. H.Md. Saddiq Sahib (1970) 1 M.L.J. 207, where Ganesan, J., held that normally a transaction will bind a person if he or persons under whom he derives title are eo nomine parties to the same and must be set aside before any relief is claimed thereunder. But the rule is subject to two exceptions viz. (1) where the transaction is only a sham and nominal one; and (2) where the trarsaction is void in law.
9. Two decisions cited by the Government Pleader, wherein different views have been expressed were sought to be distinguished by the petitioner’s counsel. The first of those cases is Ramanathan v. Ramanathan (1946) 2 M.L.J. 114 : 59 L.W. 411 : A.I.R. 1947 Mad. 57 , where a plaintiff who had executed a sale deed for Rs. 6,000 in favour of defendant 1, instituted a suit in the Court of the District Munsif for a declaration that the sale deed was a nominal and sham transaction and defendant 1 had no title to the property. Happell, J., held that as the plaintiff was a party to the sale deed and having regard to the relief asked for by him in the suit, the suit should really contain a prayer for cancellation of the sale deed and Court-fee should therefore be paid under Section 7 (iv) (a) and the plaint presented in the Court of the Subordinate Judge. This case was sought to be distinguished on the ground that, unlike the present case, the plaintiff therein had asked for a declaration in respect of the impugned document. The second of those cases is Sankaranarayana v. Kandaswamio , where a Full Bench of this Court held that when the plaintiff who had, as a minor, been made eo nominee a party to a sale deed or other document of alienation by his mother and guardian, sought to repudiate the transaction, he had to pay Court-fee, under Section 7 (iv) (a) and pray for cancellation of the sale deed expressly or impliedly. The petitioner’s counsel would contend that inasmuch as the transaction was a voidable one and not a void one, the ratio in that case will have no application to the facts of the present case.
10. In my opinion, it is not necessary to deal at length with the cases relied on by the petitioner, as the Court-fee payable by the plaintiff on his suit will have to be decided with reference to the provisions contained in the Tamil Nadu Court-fees and Suits Valuation Act, 1955. Section 40 (1) of the said Act reads as follows:
40 (1)–In a suit for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any tight, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be:
If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
From the wording of the section it may be seen that a drastic change has been made in the matter of payment of court-fee in respect of suits where a cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest in money, movable or immovable property is asked for. Undoubtedly, the compromise decree in O.S. No. 134 of 1969 is a document which purports or operates to create, declare and assign the right, title and interest of parties in the properties involved in the said suit. It therefore goes without saying that unless that compromise decree is set aside, the plaintiff will not be entitled to ask for the reliefs of declaration, partition and possession. The operative effect of Section 40 was considered by Jagadisan J., in A. Gopalakrishna lyengar v. P. Srirangammal and Anr. . That was a case where a on filed a suit for recovery of possession of properties and rendition of accounts from his mother who claimed to have a life estate in respect of the suit properties under an earlier partition. There also, a contention was raised that the document of partition was void and need not therefore be set aside as a void document was non est in law. Repelling this contention Jagadisan, J., held that inasmuch as the document of partition purported to create certain rights, it fell within the ambit of Section 40 and would therefore necessitate a cancellation of the deed being asked for by the plaintiff before ever he could ask for other reliefs. The learned Judge pointed out the change that had been introduced in the law and stated that the question for consideration was not whether the partition deed was void or voidable but only whether it would fall within the ambit of Section 40. In like manner it must be held in the instant case that the question for determination is not whether the compromise decree is a void or voidable instrument, but whether it fell within the ambit of Section 40. The plea of the petitioner’s counsel that the petitioner had only asked for the reliefs of declaration, partition and possession and had nowhere prayed in the plaint for a cancellation of the compromise decree, cannot advance the situation in any manner for the petitioner. As laid down in Shamsher Singh v. Rajender Prasad , the Court, in deciding the question of Court-fee has to look into the allegations in the plaint to see what is the substantive relief that was asked for and mere astuteness in drafting the plaint cannot be allowed to stand in the way of the Court looking into the substance of the relief asked for. In that case a Hindu son filed a suit against his father and a mortgage decree-holder for a declaration that the mortgage executed by the father in respect of the joint family property was null and void for want of legal necessity and consideration. The Court held that though the relief asked for was couched in a declaratory form, the suit was. in substance; (i) either for setting aside the decree or (2) for declaration with a consequential relief of injunction restraining the decree-holder from executing the decree. against the mortgaged property. I am clearly of opinion that these two cases will govern the situation and the petitioner cannot escape her obligation to pay court-fee as called for by the lower Court.
11. From another point of view also, the petitioner must be held liable to pay Court-fee required for setting aside the compromise decree. It may be recalled that the decree in the earlier suit was not one rendered by the Court on n>erits, but was one rendered on a compromise entered into by the parties. The compromise decree entered into by the parties may well partake the Characteristics and incidents of a family arrangement. In this view, even if the petitioner’s contention of the ninth and eleventh defendants being illegitimate children of deceased Venkataswam : Naidu is to be accepted, the compromise arrived at in the earlier suit may have been the result of a family arrangement between all the parties concerned. There is no bar in law to the members of a joint family including the illegitimate son of one of the coparceners to the benefit of partition and as such, there can be no bar to the ninth defendant having been given properties in the compromise arrived at in the earlier suit. If this position is taken note of, it necessarily follows that the plaintiff must have the compromise decree set aside before ever she can ask for the reliefs of declaration, partition and possession. In that view of the matter also, the petitioner must fail-
12. In the result, the revision petition is found to be devoid of substance and therefore will stand dismissed- But there will be no order as to costs.