1. This is a plaintiff's appeal from an order rejecting his plaint. The suit was brought by Suraj Ket Prasad, one of the grandsons of Gur Charan Lal. It was alleged in the plaint that a partition suit, was filed in the Court of the Subordinate Judge of Fyzabad, which went up in appeal to the Chief Court at Lucknow, that in that appeal a compromise was filed between the parties and was signed by the plaintiff's father, which was accepted by the Court and a decree in terms of the compromise was passed. The plaintiff alleged that his father was a person of weak intellect, addicted to hemp, that he was under the undue influence of the other defendants, that he was in collusion with them at the time and it was in these circumstances that he made the application, styling it as a compromise, on 20th November 1919. The decree of the Judicial Commissioner of Oudh was passed in January 1920. The plaintiff alleged that the compromise was not binding on him and the decree passed by the Oudh Court on the basis of it was improper. There was no reference in the body of the plaint to any decree of the Court of the Subordinate Judge of Gonda. The claim was valued at Rs. 35,000 for purposes of. jurisdiction and the court fee at the rate of Rs. 101 was paid. The plaintiff first asked for two reliefs which, on objection having been taken by the office as to the payment of court-fee thereon, were substituted by two new reliefs which were in the following terms:
(a) It may be declared by the Court that the properties mentioned at the foot of the plaint are the ancestral family properties of the plaintiff and that, the plaintiff and defendant 5 are the joint owners thereof, (b) It may be declared by the Court that the compromise dated 20th November 1919, decree of the Court of the Judicial Commissioner of Oudh, passed in Appeal No. 67 of 1917, decided in January 1920, and decree No. 142 of 1925 of the Court of the Subordinate Judge of Gonda, are improper and void as against the plaintiff and do not in any way affect the plaintiff's rights.
2. The plaintiff paid Rs. 10 for relief (a). This was considered sufficient and there is no dispute about it. He paid only Rs. 10 for relief (b). The office objected and reported that the amount of court-fee paid WHS insufficient. The plaintiff did not admit the correctness of the report, but the Court, after considering the objection held on 24th August 1929, that thin was a case in which consequential relief was implied, ordered that 'the deficiency must be made good within 21st October.' the plaintiff did not make good the deficiency and ultimately the plaint was rejected on 4th December 1929. The appeal is from this last order. There is no doubt that the plaintiff in asking for a declaration that the compromise, dated 20th November 1919, was improper and void as against the plaintiff, was asking for the cancellation of this instrument. The observations of the Fall Bench in Kalu Ram v. Babu Lal 1932 All. 485, made at p. 689 are in point. That was further explained in Srikrishna Chander v. Mahabir Prasad 1933 All. 488, at p. 677, whore it was pointed out that
there is no doubt that so far as the suits relating to the cancellation of instruments are concerned, the Full Bench clearly held that a relief to have a registered instrument adjudged void or voidable with the possible result of its being delivered up and cancelled and a copy of the decree being sent to the registration office for it note to be made by the registering officer in his books, in much more than a mere declaratory relief. It is undoubtedly a substantial relief of a nature differing from a declaratory one.... A suit which falls under Section 39, Specific Relief Act, was held to be not a suit for obtaining a mere declaratory decree, but one for obtaining substantive relief not otherwise provided for.
3. As Section 39 applies to instruments executed by plaintiff as well as to other instruments which he seeks to have adjudged void or voidable, the observations in these Full Bench cases cover the point which arises before us. We must hold that the plaintiff is bound to pay ad valorem court-fees for the relief which, in substance, was one for cancellation of the compromise, dated 20th November 1919, under the residuary Article, Schedule 1, Article 1, Court-fees Act.
4. As regards the relief that the decree of the Court of the Judicial Commissioner of Oudh was improper and void, the observations made by the Full Bench in Kalu Ram v. Babu Lal 1932 All. 485, on pp. 690 and 691 apply. The compromise having merged in the decree of the Chief Court, the cancellation of the decree was not a distinct subject, but amounted to one consolidated relief. No further court-fee is therefore payable in respect of this part of the relief. So far as the relief for declaring that decree No. 142 of 1925, of the Court of the Subordinate Judge of Gonda, as being improper and void, is concerned, admittedly this is a distinct and separate relief for which (sic) plaintiff must pay Rs. 10. In Sri Krishna Chander v. Mahabir Prasad 1933 All. 448, on p. 677, it was pointed out (sic)
the case of a decree stands on a different (sic) footing because a suit to avoid it does not (sic) fall under Section 39, Specific Relief Act.
5. As no definite relief for the cancellation of this decree was sought, but only a declaration was asked for, no more than Rs. 10 wore charged. It is immaterial consider whether any such decree exists, nor is it at all relevant that there is no reference to it in the body of the plaint. The relief as it stands asked for this decree also to be declared improper and void and the plaintiff must pay court-fees on such a relief.
6. In view of the circumstance (sic) questions raised in this (sic) complexity, we think the (sic) opportunity should be given to the plain (sic) make good the deficiency if he is (sic) vised. If the deficiency in the (sic) of the court-fees is made good on (sic) fore 2nd October 1933, the appeal would be allowed, the order of the rejection of the plaint set aside and the issue sent back to the Court for being restored to its original number on the pending file and disposed of according to law. If the amount of deficiency is not made good by the date mentioned, the appeal shall stand dismissed with coats. The plaintiff, in any event, will bear his own costs and pay the costs of the defendants.