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1. The plaintiff-appellant, a minor, filed, a suit, through his next friend Durga Vinod Singh, for a declaration that the sale-deed, dated 28-8-1959, executed by his eldest brother, Gopal Singh (respondent No. 1) as the karta of the joint Family, consisting of himself and his brothers, viz., Raj Bahadur Singh and the minor plaintiff Baldeo Singh, was void, as it was not executed for legal necessity or for the benefit of the estate. It was also averred in the plaint that the suit property in respect of which the declaration was sought was in possession of tenants, who had not yet attorned to the vendees; nor had the defendants-vendees been able to obtain possession of the suit property from the tenants in any other way. It was also pleaded, in the alternative, that as the plaintiff was a minor and as the permission of the Court had not been obtained in accordance with the Hindu Minority and Guardianship Act, 1956, the sale-deed in question was void in any case to the extent of the share of the plaintiff-appellant. In the result, the plaintiff claimed the following reliefs:

3. The trial Court, by its order dated the 28th of March 1960, held that the court-fee was payable under Article 17 (iii), Schedule II of the Court-fees Act and not under Section 7(iv)(c), because the suit was not for the cancellation of the sale-deed but only for a declaration simpliciter that the sale-deed was void or partly void to the extent of the share of the plaintiff. It relied on the observations in Ratansingh v. Raghurajsingh, ILR (1945) Nag 975: (AIR 1946 Nag 30) to the effect that "Court-fee is payable on the claims as framed in the plaint and not on the claim as it ought to be framed". After the aforesaid finding, the parties went to trial. The learned Additional District Judge, by his judgment under appeal, held that the sale-deed executed by Gopal Singh as the Karta of the joint family, of which the plaintiff-appellant was a member, was neither for legal necessity nor for the benefit of the estate. He, therefore, held that the minor plaintiffs share in the suit property could not have been sold by Gopal Singh and that the transfer to the extent of his share was void.

5. In my opinion, the preliminary objection raised by the learned counsel for the respondents cannot be accepted. In ILR (1945) Nag 975: (AIR 1946 Nag 30) (supra), a Division Bench of this Court laid down: (i) that the Court-fees Act is a fiscal enactment and has, therefore, to be construed strictly and any ambiguity or doubt arising out of its interpretation has to be resolved in favour of the subject, (ii) That court-fee is payable on the claim as framed in the plaint and not on the claim as it ought to be framed, (iii) That the question of court-fee is distinct and separate from the question of the maintainability of the suit as framed. Adverting to the question of court-fee payable on suits for setting aside a deed or a decree, it said that no specific provision has been made in the Court-fees Act for valuing such suits; but several tests have been formulated by judicial decisions for determining whether court-fee is payable under Section 7(iv)(c) or Article 17 (iii), Schedule II of the Court-fees Act. Some of these tests are: (a) Whether a person was a party actual or constructive to the deed or decree; Mt. Rup Rani v. Bithal Das, ILR 13 Luck 628: (AIR 1938 Oudh 1 (FB)), and Vinayakrao v. Mankunwarbai. ILR (1943) Nag 440: (AIR 1943 Nag 70). (b) Whether a suit is one under Section 42 of the Specific Relief Act, because if that were so, then the court-fee payable is under Article 17 (iii) Bepin Singh v. Bhagwan, Singh, ILR 14 Luck 176: (AIR 1938 Oudh 201 (FB)). (c) Whether it is necessary for the plaintiff to have the deed set aside or the decree amended because in that case in order to make the relief of declaration effective it would be necessary for the plaintiff to ask for some consequential relief, thus attracting the provisions of Section 7(iv)(c): Dattaji Parash-ramji Patil v. Mt. Bhagirathi, ILR (1939) Nag 373: (AIR 1938 Nag 183) and ILR 1943) Nag 440: (AIR 1943 Nag 70) (Supra), (d) Whether the plaintiff alleged that the deed or the document in respect of which he seeks relief is a nullity and void, because if the deed were a nullity and void, the simple declaration would be enough and no consequential relief need be asked for the simple reason that there is no need for setting aside that which has no existence in the eyes of the law; but if the transaction was not a complete nullity in that sense, and was valid and operative until avoided, then consequential relief is involved, because the prayer then is for the removal of a burden legally created: Madanlal v. Shri Ramchandra Dewasthan, (1936-43) Taxing Decisions of Nag H. C. p. 36; Banku Behari Shaha v. Krishto Gobindo Joardar, ILR 30 Cal 433; Petherper-mal Chetty v. Muniandy, 35 Ind App 98 (PC) and Ramautar Sao v. Ram Gobind Sao, ILR 20 Pat 780:( AIR 1942 Pat 60).

20. In my opinion, the dicta in the two last-mentioned cases and also the observations in Dullaji Parashuram's case. ILR (1939) Nag 373: (AIR 1938 Nag 183) (supra), all of which have been cited with approval in Ratansingh's case, ILR (1945) Nag 975: (AIR 1946 Nag 30) (supra), apply to the appellant's suit here. Recalling the observations in Ratansingh's case, ILR (1945) Nag 975: (AIR 1946 Nag 30), that it is not the language or the form but tbe substance and the nature of the claim which is the crux, it must be said that although the relief cause is worded as mere declaratory, essentially and substantially this is a suit for setting aside the sale. The sale deed, being a registered document, is valid and operative until avoided. As the plaintiff seeks the relief for declaration that the sale deed is void not only against his rights and interest but also that it is void in toto, that is, against those also who expected it the prayer for its setting aside and cancellation is necessarily involved,