Venkatasubba Rao, J.
1. The learned Government Pleader has raised three points.
2. The first question is the only one dealt with by the Lower Court in its judgment, and we are satisfied that its decision is correct. For the purpose of ascertaining the court-fee payable, one must have regard to the allegations in the plaint and it is not the function of the Court to ask itself whether those allegations are true or probable. The learned Judge points out that the plaintiff has asserted that there has been a division in status and the court-fee has been paid on the basis of that assertion under Article 17-B of Seheudle II of the Court Fees Act. We agree with the view that the proper court-fee has been paid.
3. Point 2.--In the plaint it is alleged that the 6th defendant obtained a decree inter alia against the plaintiff on the basis of a mortgage executed by the plaintiff's father, and the plaintiff prays for a declaration that that decree is not binding on his share of the property. It has been held in Venkatasiva Rao v. Satyanarayanamurthy : AIR1932Mad605 and Doraiswami v. Thangavelu : AIR1929Mad668 that the section that applies in such a case is Section 7(iv-A) which runs thus:
In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having of such value, according to 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 the value of the property for which the decree was passed or the other document 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.
4. The question arose in those cases whether the section that is applicable is Section 7(iv)(c) or Section 7(iv-A), and it was pointed out that what the Court must look to, is the substance of the relief claimed and not the mere form of the plaint. The plaintiff prays in this case that it may be declared that the decree to which we have referred is not binding on his share. That is to say, it is in form a declaratory relief that he prays for; but in truth the plaintiff's request amounts to a prayer that the part of the decree which affects him may be cancelled. Though the relief has been so worded as to bring the case within Section 7(iv)(c) which runs thus,
to obtain a declaratory decree or order, where consequential relief is prayed,
we must hold on the authority of the cases to which we have adverted, that the section applicable is Section 7(iv-A).
5. Point 3.--The plaintiff complains also that a certain mortgage executed by his father's agent in favour of the 7th defendant is not binding on him and prays that he may be granted a partition free of that mortgage. The prayer is in effect for a declaration that the mortgage is not binding on the plaintiff's share. We agree with the learned Government Pleader that Article 17-A (1) of Seheudle II (i. e., the one relating to the obtaining of a declaratory decree where no consequential relief is prayed) applies.
6. The Lower Court will take suitable action in regard to the collection of the court-fee in accordance with this judgment.