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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.

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).

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-