Suit for recovery of possession without seeking relief for cancellation of deed not maintainable.

K.M. Natarajan, J.

1. The plaintiff is the revision petitioner. He has filed the suit for declaration of title and for recovery of possession. According to the petitioner herein, he got the suit property and other properties to his share in an oral partition between him and his father. His step-brother Aruladum Perumal Pillai who was born to his father through his second wife, made a claim to the suit property. The defendant (first respondent herein) who is the plaintiff's father's sister's husband represented that a sham and nominal settlement deed might be executed by the petitioner in his favour in order to protect the property; accordingly he executed the settlement deed on 29.7.1972. About two years prior to the filing of the suit, that is, in 1976, the defendant who is the first respondent herein claimed title to the suit property and refused to execute necessary document in favour of the petitioner and also trespassed into the property. To the notice issued by the petitioner, he set up title on the basis of the settlement deed. Thereafter the petitioner herein filed the suit for declaration of title and for recovery of possession. In the body of the plaint, he has averred that the said settlement deed in favour of the first respondent is sham and nominal and that it need not be set aside.

2. The first respondent herein resisted the claim and filed a written statement contending that the said settlement deed is a true and valid document, that in pursuance of the same, he got possession and that it was executed voluntarily out of love and gratitude towards the first respondent.

3. The court below framed two issues, along with other issues, one in respect of pecuniary jurisdiction and the other in respect of the valuation of the suit property for the purpose of court fees and jurisdiction. The learned District Munsif held that court-fee has to be paid as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and that the court has no pecuniary jurisdiction since the market value of the property definitely exceeds his pecuniary jurisdiction and returned the plaint for presentation before proper court. The petitioner was unsuccessful in the appeal also. Hence this revision.

4. Learned Counsel for the petitioner mainly contended that since the plaintiff sued for declaration of title and recovery of possession alleging that the settlement deed in favour of the first respondent is sham and nominal, he is not obliged to ask for the cancellation of the settlement deed and as such, no court-fee need be paid under Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act. In support of the said contention, the learned Counsel for the petitioner relied on the decisions of this court reported in Krishnasami v. Kuppu Animal A.I.R. 1929 Madras 478; Adinarayana v. Rattamma (1944) 1 M.L.J. 497 : 57 L.W.392 : A.I.R. 1944 Mad. 408(2) and Hameed v. Mohideen (1948) 1 M.L.J.270 : I.L.R. (1948) Mad. 883 : 61 L.W. 270 : A.I.R. 1948 Mad.

451. It was held in the above decisions that when the plaintiff's case is that the document is a sham and nominal one, it need not be set aside and the suit for the relief on that footing is not one for cancellation. But, even in such cases if the plaintiff sues for cancellation, he would have to pay court-fee for the relief, whether it was necessary for the deed to be cancelled or not. This Court had occasion to consider these decision in Gnanambal Ammal v. Kannappa Pillai (1959) 1 M.L.J. 355 wherein it was held:

In order to determine the class under which a suit falls for purpose of court-fee, the substance of the relief as disclosed in the plaint, taken as a whole, should be looked into and not the' form of the prayer in which the relief is cast. The plaintiff cannot be allowed to evade the payment of proper fee or undervalue the suit for purposes of jurisdiction by omitting to ask for a relief when the success of suit depends on the relief being granted to him. The basis of determination of