B.C. Chakrabarti, J.
1. This revi-sional application is at the instance of the plaintiff of T. S. No. 18 of 1967 of the 3rd Court of learned Subordinate Judge at Howrah. The suit is for partition upon a declaration that a document purported to be executed by the plaintiff in favour of defendants 3, 4 and 5, dated the 29th July, 1955 is fraudulent, collusive and void and not binding on the plaintiff. The specific allegations in regard to that document, we shall come to hereafter in some details. The suit was decreed in a preliminary form by the Ld. trial Judge. Being aggrieved, defendants 3, 4 and 5 preferred an appeal, being Title Appeal No. 88 of 1978 of the 2nd Court of the Ld. Additional District Judge, Howrah. The Ld. appellate Judge, instead of entering into the merits of the appeal made an order of remand under Order 41 Rule 25 of the Code. He framed an additional issue as follows:-- 'Is the suit so far as the Kha schedule property is concerned properly classified for valuation?' and remitted the suit to the Ld. trial Court for determination of the said issue with a direction to demand additional court-fees on such determination if necessary, with liberty to the plaintiff to suitably amend the prayer portion of the plaint.
2. In making the order for remand, the 3d. appellate Judge has practically decided the issue although he has also said that any observations made by him would not fetter the discretion of the trial Judge in coming to his own conclusions. He felt inclined to hold that the suit as framed should have been valued according to Section 7(iv)(c) of the Court-fees Act but instead of saying so in so many words he left the question open for consideration by the trial Court to enable the plaintiff to amenl the plaint, if need be, so that the suit may not fail for want of a proper relief claimed therein.
3. Being aggrieved the plaintiff has moved this revisional application. The application has been heard on notice to defendants 3, 4 and 5 and on contest by them.
4. In order to appreciate the point involved it is necessary at this stage to state the case of the plaintiff petitioner in regard to the impugned document dated the 29th July, 1955 in some details. Though the suit is basically for partition of several items of properties, the plaintiff has a positive case with regard to the document which relates to Kha schedule. Her case as made in the plaint is that she became a widow at a very young age, that she is an illiterate pardanashin village woman, that on her husband's death, her husband's elder brother Bhuban Chandra Rakshit pretending to be her well-wisher began to look after her properties, that she reposed great confidence in him and loved the contesting defendants 3/4 who are her nephews, as her own children, that they represented that they found it inconvenient to look after the properties of the plaintiff unless she executed a power-of-attorney in their favour to which the plaintiff agreed in good faith, that on such representation that a power of attorney was being executed they obtained a document from her without letting her know nor explaining to her the contents and nature of the document that subsequently in May 1967, the plaintiff came to know that the document taken from her was in reality a sale deed and not a power-of-attorney as was represented to her. It is then said that the defendants dbtained the document by practising fraud and by exercising undue in-fluence and coercion on her and without payment of any consideration whatsoever. On such allegation the plaintiff asked for partition of her share founded on her original title upon a declaration that the document is void, inoperative and not binding upon her.
5. The suit was valued for purposes of jurisdiction at Rs. 8000/- but a fixed Court-fee of Rs. 15 for partition and Rs. 20/- for the declaration, was paid. The Ld. trial Court found the Court-fee paid to be sufficient. The Ld. appellate Judge appears to have taken a different view of the matter. He observed that though the determination of the amount of Court-fee chargeable, by the trial Court is final, the classification of the suit for the purpose of valuation and Court-fee is nonetheless open to challenge in appeal.
6. He then observed, relying upon the decision mainly in the case of Shamsher v. Rajendra Prasad. : 1SCR322 , that in spite of deft draftsmanship, the Court has to look into the plaint in its substance and then find out, in spite of the cleverness and astuteness of the drafting what really is the real relief asked for. He seems to hold that since the plain-tiff herself is a party to the impugned deed, a prayer for a declaration is nothing but a camouflage, the prayer for setting aside the deed and cancellation of the same being implicitly involved therein. Referring to several other decisions ha concluded that the suit as framed seems to come within the mischief of Section 7(iv)(c) of the Court-fees Act so that the plaintiff would be required to pay ad valorem Court-fees,
7. The findings and observations have been seriously contested by Mr. Bagchi, learned Advocate appearing for the petitioner, Mr. Bagchi contends that in view of the nature of the plaintiff's case as made out in the plaint, it cannot be said that a prayer for setting aside the document or for cancellation of the same is there in a concealed form or that the plaintiff should have asked for such reliefs. According to him the document is a void document and is not therefore required to be specially avoided by asking for reliefs in that behalf,
8. In support of the contention aforesaid reliance was placed on the case of Sarat Chandra v. Kanailal reported in (1922) 26 Cal WN 479 : (AIR 1921 Cal 786). That was a suit where the plaintiff prayed inter alia for a declaration that a deed of gift was void and inoperative in that the donor signed the deed believing, owing to the fraud and misrepresentation of the donee, that it was only a power of attorney and for declaration of title to the property which was the subject of the gift. The deed was dated 12th July, 1906. The donor came to know of it in January, 1915 and the suit was instituted in December, 1919. A question arose whether the suit was within time in view of tha limitation of 3 years as provided in Article 91 of the old Limitation Act. It was held that article could not apply but that the proper article to govern the suit was Art. 120. The reason for such a conclusion was that on the facts alleged the plaintiff could not be said to have signed or executed the deed of gift and that the document was a void one. It was observed, relying on an English authority, that the mind of the plaintiff did not accompany her signature or mark, that she never intended to sign and therefore in contemplation of law never did sign the deed to which her name or mark were attached. Since it was not a case of a voidable transaction in view of the as sertions made in the plaint, it was observed that it was not necessary to ask for setting aside the deed and as such Art. 91 of the Limitation Act could not apply to the case.
9. In the case before us also the assertion of the plaintiff is that she was made to execute the document upon a misrepresentation that it was a power-of-attorney. Whether she has succeeded in establishing that fact is a different matter but the allegation being, what it is, it may legitimately be said that there was no valid or conscious execution because she had signed believing it to be a document of a different kind altogether.
10. Mr. Bagchi next referred to the case of Appana v. Venkatapadu, . This also is a case where deed of gift was attacked on the allegation that the defendants represented to her that the deed was a general power of attorney authorising them to manage the estate, that she did not read it nor was it read to her and that she executed it in the belief that it was only a power of attorney. She went on to say that the deed was vitiated by fraud and misrepresentation and did not confer any title on the donee. She prayed for an order for setting aside the deed and for a decree for a possession. The suit having been filed beyond the period of limitation prescribed by Art. 91 of the old Act, question arose whether the suit was barred by limitation. The question was answered in favour of the plaintiff and in doing so a distinction was drawn between a void and voidable transaction. Relying on several decisions including the case of Sarat Chandra v. Kanailal (AIR 1921 Cal 786) (supra) it was held that the transaction in this case was a void one and as such no duty was cast on the plaintiff to get the instrument set aside and as such Art. 91 had no application.
11. The prayer for setting aside the instrument and cancellation of the same in such a suit, was held to be merely ancillary to the substantive prayer and a surplusage.
12. Relying on these decisions Mr. Bagchi argued that it was clearly unnecessary for the plaintiff to have asked for setting aside the document or for cancellation. She was entitled to sue for partition basing her claim on the original title, ignoring the transfer which she never executed. This argument is not without substance. The legal position would have been different had the plaintiff complained that by fraudulent representation she was induced to enter into the transaction of whose nature however she was aware or that there had been fraud with reference to the terms of the deed or the contents thereof. In such a case it would have been necessary to sue to set aside the deed. But here the com-plaint of the plaintiff is totally of a differ-ent character namely, that it was represented to her that she was executing a, power of attorney only. There is a dis-tinclion between misrepresentation as to the character of a deed and misrepresentation as to its contents. In the former case the transaction is void and not merely voidable.
13. Such being our view, we feel that the order of the learned appellate Judge was erroneous. The Supreme Court decision relied on by him appears to us to be clearly distinguishable. That was a case : 1SCR322 where a Hindu son sued his father and the mortgagee 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. Though couched in a declaratory form it was held that the suit was in substance a suit for setting aside the decree or for a declaration with a consequential relief. It was held that under the Hiudu law if a manager of the joint family is the father and the other members are his sons, the father may, by incurring a debt so long as it is not for an immoral purpose lay the joint estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt but also to a mortgage debt or to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity. That being the position in law it was held that when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction. It is clear that the facts of that case were entirely different.
14. This decision however quoted with approval a Full Bench decision reported in AIR 1941 Lah 97 (Mt. Zeb-ul-Nisa v. Din Mohammad). In the Lahore case the Court observed' ..... when the plaintiff is a party to the decree or deed, the declaratory relief, if granted necessarily relieves the plaintiff of his obligations under the decree or the deed and hence it seems to have been held in such cases that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief'. The Id. appellate Judge seems to think that since the plaintiff here is herself a party to the deed, the declaration asked for by her ought to be deemed to include a prayer for setting aside the deed. We are unable to subscribe to such a view on the authority of the Supreme Court case or the Lahore case referred to therein. In fact there are observations in the Lahore case to the effect that there are exceptions to the general rule. Consequently, it cannot be said as a general proposition that wherever the plaintiff asks for a declaration simpliciter, the relief must be held to include something more if the plaintiff be a party to the deed. In the case before us, it cannot even be said, on the plaint case, that the plaintiff was strictly a party to the impugned document. What she intended to do was to execute a power of attorney and not a document of a different character purporting to transfer her interests in the property in question. Here is a case which can be said to be an exception to the general rule that a party to a deed must seek something more than a mere declaration that it is not binding on her.
15. In the Lahore case it was further observed that the question whether the plaintiff is or is not a party to the deed in questtion does not furnish a satisfactory or conclusive test for determining the Court-fee payable.
16. The facts of the case of Vinayak Rao v. Mt. Mankunwarbai (AIR 1943 Nag 70) referred to by the Ld. appellate Judge relates to a case where a plaintiff who by a fiction was bound by the decree and it was held that in such a situation he is required to ask for setting aside the decree. The facts thus are different.
17. The case of Mr. Rupia v. Bhatu Mahton AIR 1944 Pat 17 (FB) though apparently seems to have some bearing, would upon a close scrutiny appear to be different on facts. There the widow brought a suit for a declaration that a deed which she had been led to execute was fraudulently done without letting her know the contents and which was without consideration. It does not appear that the was made to execute a document different from what was represented to her. Therefore, that case also is of no help.
18. In the instant case, we have found that the plaint assertion plainly is that she was given to understand that a power of attorney was being done and she lent her signature on such representation. Therefore, in law, there was no valid execution, the mind of the applicant not having accompanied her signature. Such a case, if proved, would render the deed void. In this case the misrepresentation is both as regards the contents as well as to the character of the document, and as such the transaction is wholly void. In such a suit it is not necessary to seek a relief of setting aside the document and no consequential relief is implicit in the relief asked for.
19. That being our view, we feel that the order of remand solely for the purpose of determining whether such a relief is implicit requiring payment of Court-fees on ad valorem basis, was not justified and was not made in the regular exercise of jurisdiction.
20. In the result, the revisional application succeeds and is here by allowed on contest. The impugned order is set aside. The appeal is remitted back to the lower appellate Court for adjudication on merits.
21. There will be no order for costs.
Anil K. Sen, J.
22. I agree.