C.M. Lodha, J.
1. This revision application by the plaintiff raises a question of court-fee. The plaintiff Shantilal Agarwal filed a suit in the Court, of Civil Judge. Dholpur for declaration that the will dated 5-7-1963 registered on 4-9-1963 executed by his father late Shri Shaymlal and his mother Smt. Champa Devi, defendant No. 1. was void and ineffective as against the plaintiff Shyamlal had died before the institution of the suit, but Smt. Champa Devi was alive and was impleaded as defendant No. 1. The suit was filed on 3-7-1967 and Smt, Champa Devi died some time in 1971. The validity of the will was challenged mainly on the grounds that the testator Shyamlal was not in a sound disposing mind at the time of executing the will, that the will had been got executed by undue influence, fraud and coercion, and that in any case Shyamlal had no right to dispose of the ancestral and joint family property by making a will in respect of it and thereby deprive the plaintiff of his legitimate share in it. The suit was resisted by the defendant and an objection was also taken that the court-feet paid was insufficient. Fixed court-fee of Rs. 25/- was filed with the plaint under Section 24 of the Rajasthan Court Fees and Suits Valuation Act. 1961, read with Schedule II. Article 17(iii) of the Indian Court Fees Act. The defendant pleaded that the valuation of the subject-matter involved In the wall was Rs. 21,00,000/- and, therefore, ad valorem court-fee was payable on this amount. The learned Additional District, Judge. Dholpur by his order dated 31st, October. 1972. held that, the plaintiff was liable to pay ad valorem court-fee on 5,25,000/- and granted time to the plaintiff to make up the deficiency in court-fee by 25th November. 1972. The plaintiff applied for review of this order but was unsuccessful. The time for paying the deficit court-fee was however, extended upto 19th January. 1973.
2. Aggrieved by the order dated 31st October. 1972 and the order dated 5th January. 1973, passed on review application, the plaintiff has filed this revision application The revision application is within limitation from the date of the original order.
3. Learned counsel for the petitioner has urged that, the plaintiff-petitioner was not a party to the document which he seeks to be declared void and therefore, properly speaking it is not a suit for cancellation of the will but is one for pure and simple declaration. It is, therefore, urged by him that the suit is maintainable on a fixed court-fee of Rs. 25/- under Section 24 (e) of the Rajasthan Court Fees and Suits Valuation Act. 1961 and that Section 38 has no application to the present case. There is no gainsaying the fact that, if Section 38 is applicable to the present suit, as held by the court below, the plaintiff would be undoubtedly liable to pay ad valorem court-fee on the value of the subject-matter of the suit.
4. In order to appreciate the contention raised on behalf of the parties it would be proper to reproduce here the relevant portion of Section 38:--
'38. Suit for cancellation of decrees etc.-- (1) In a suit for cancellation of a decree for money or other property having a money value, or other docu-ment which purports or operates to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subiect-matter of the suit, and such value shall be deemed to be-
(a) if the whole decree or other document is sought to be cancelled the amount of the property for which the decree was passed or other document was executed; and
(b) If a part of the decree or other document is sought to be cancelled, such part of the amount or value of that property.'
5. Now the question is whether the present suit is for cancellation of a document, as envisaged under Section 38 of the Act. Learned counsel for the respondent has placed strong reliance on, Hukam Singh v. Mt Gyan Devi. 36 Ind Cas 95 = (AIR 1916 Lah 21). Charan Das v. Jamna Devi. (1928) 112 Ind Cas 48 (Lah). Bura Mal v. Tulsi Ram AIR 1927 Lah 890 and Mathura Prasad v. Ram Lal AIR 1934 Oudh 505.
6. In 36 Ind Cas 95 - (AIR 1916 Lah 21) it was observed that suit for cancellation of will falls under Section 7, para 4. Clause (c), of the Court-Fees Act, VII of 1870. It was further observed that the plaintiffs were bound to ask for consequential relief, in the shape of the cancellation of the document, even though they had sued for a declaration only that the will is null and void, the reason being that owing to the death of the testator the will in dispute had lost its ambulatory character and had become operative. It was held that if the testator were still alive, in that case, all that the plaintiffs could ask for was a declaration regarding the will but since he is dead he must go further and get the will cancelled before he can avoid it. It may be pointed out that in that case the plaintiff did not impeach the will on the ground that the testator was not authorized to alienate the immoveable property belonging to the Hindu Coparcenary. Thus the case is distinguishable.
7. In AIR 1927 Lah 890 the plaintiff definitely allegd that the will had not been executed by the deceased and was a forgery and he further asked for a perpetual injunction to be issued directing the defedant to stop interference with his property and to remove his locks from the house and shops in question. It may be pointed out that a prayer for an injunction was an additional relief sought by the plaintiff and it has been held in many cases that a prayer for injunction amounts to a consequential relief. This case is therefore, in my opinion, quite distinguishable on facts.
8. In AIR 1934 Oudh 505 it was observed that where the allegation in the plaint clearly shows that the plaintiff virtually seeks the cancellation of a deed of wakf and the will executed by the deceased, in order that he may recover the property as the reversionary heir of the deceased, the plaintiff, in substance, asks for the cancellation of the deed of 'wakf' and the will and therefore his plaint is virtually for a declaration with a consequential relief and falls under Section 7 (4) (c) This decision turns upon the construction of the plaint. It was found that the plaint was deliberately cast in such a form as to evade payment of court-fee, but was nevertheless a plaint for a declaration of title together with a consequential relief. In the circumstances of that case the learned Judges came to the conclusion that the plaintiff had virtually sought the cancellation of a deed of wakf and the will executed by the late Janki Sahu in order that he may recover the property in the suit as the reversionary heir of Janki Sahu.
9. Rerefence may now be made to Athmaram v. Saraswathi. AIR 1936 Mad 344. The plaintiff instituted a suit claiming certain properties as belonging to the Joint family alleging that he was entitled to the properties by survivorship and that a will left by his coparcener bequeathing the said properties to coparcener's widow and daughter was a forgery. It was held that the claim for possession could not be held to be consequential upon the declaration that the will was a forgery and invalid, and further that the claim to possession of the joint family properties by survivorship was unaffected by the will and therefore the claim with regard to the properties must be held to be for declaration only and must be valued under Article 17A. Schedule 2, Court-fees Act
10. In Kattiya Pillai v. Ramaswamia Pillai. AIR 1929 Mad 396 the plaintiff in his suit alleged that a will put forward by the defendant was a forgery and prayed in his plaint (1) that the will may be declared to be forgery: (21 that it may be cancelled; and (3) that, the order of the Sub-Registrar registering the will may also be cancelled. It was held that in regard to Court-fee payable, the provision applicable to the case is not Section 7 (iv) A or Section 7 (iv) (c) but Schedule 2 17-A (1) because the suit must be treated as one for declaration without consequential relief,
11. Two cases of this Court,--Lal Singh v. Tej Singh. (1971) 4 WLN 674 = (AIR 1972 Raj 137) and Sukh Lal v. Devilal. ILR (1953) 3 Raj 782 = (AIR 1954 Raj 170) have also been brought to my notice by the learned counsel for the non-petitioners. They deal generally with the principles to be kept in view for deciding the question whether the prayer is only declaratory or in fact consequential. In ILR (1953) 3 Raj 782 -- (AIR 1954 Raj 170) it was observed that, there is difference between a suit for cancellation of an instrument and one for declaration that the instrument is not banding on the plaintiff. When the plaintiff seeks to establish a title in himself and can-not establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound, then quite clearly he must get that decree or deed cancelled and his suit is in substance a suit for cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or transaction between third parties, he is not in a position to get that decree or deed cancelled in toto and the proper remedy for him in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned. He may sue for a mere declaration to that, effect and need not sue for cancellation of the decree or,deed.
12. Now the present is not a case where the plaintiff cannot establish a title in himself without removing the will by which he is even otherwise not bound, as he clearly states, that the property in dispute its ancestral and joint family property and deceased Shyam Lal had no right to dispose it by will. Thus, this case falls under the second category mentioned in Sukhlal's case, ILR (1953) 3 Rai 782 = (AIR 1954 Raj 170). In this view of the matter I am inclined to hold that the fixed court-fee paid by the plaintiff on the plaint was proper and Section 38 of the Rajasthan Court Fees and Suits Valuation Act. 1961 is not applicable to the present case.
13. In the result I allow this revision application, set aside the order of the learned Additional District Judge, Dholpur dated 31st October. 1972, and hold that the court-fee filed with the plaint is proper.
14. There will be no order as to costs of this revision application.