Applicability of Madras Court-Fees and Suits Valuation Act (XIV of 1955), sections 25 (a) and 40.

The plaintiff in an un-numbered suit of 1966 pending in the Court of the Subordinate Judge of Tirupattur had filed this revision petition against the order passed by the learned Subordinate Judge, which is to the effect that, as in substance, the suit is one for cancellation of the documents, Court-fee under section 40 of the Madras Court-Fees and Suits Valuation Act, 1955, has to be paid.

The allegations in the plaint are that the plaintiff is the absolute owner of the suit properties; that, in order to save the properties from the reach of creditors and Incomte-tax Department, he executed a sham and nominal instrument of deed of gift (hiba) dated 24th April, 1956 in favour of his son, the first defendant and others who were then minors without any intention to transfer the title; that, in any event, the gift deed is Void in law as it had not been accepted by any competent person and as no possession was delivered; that the second defendant, by playing fraud on the first defendant who had no title to the A Schedule properties comprised under the gift deed, obtained a sale of those properties from the latter; that the sale deed is Void and that defendants 3 and 4 and similarly obtained a sale deed dated 6th March, 1961 comprising some of the suit properties. On these allegations the plaintiff has prayed (1) for a declaration of his title to the suit properties and (2) for possession of the same and has paid a sum of Rs. 377 as Court-fee under section 25 (a) of the Madras Court-Fees Act. The learned Subordinate Judge has held that, in substance, the suit is one for cancellation of the instruments of sale and that the petitioner should have paid Court fee on that basis under section 40 of the Madras Court-Fees Act. The question is whether this order can be upheld.

In Sahul Hameed Rowther v. Mohideen Pichai1, a Division Bench of this High Court has ruled that, where a plaintiff alleged that a sale deed executed by him in favour of the defendant was sham and nominal, it was not necessary for him to pray for cancellation of the deed. The learned Judges have observed that, in such cases, where the sham and nominal character of the transaction is proved, title will not pass by that document and that those transactions are not insuperable obstacle to the granting of the plaintiff’s prayer and they have also observed incidentally that, in such cases, there was no necessity even to ask for a declaration that the transactions were sham and nominal and that the plaintiff could have ignored the deed in the plaint and could have asked merely for injunction or possession as the case might be; and that it was open to the plaintiff to point out to the Court in the course of the trial that the transaction was only sham and nominal.

In Unni V. Kunchi Amma2 , the following observations occur:

“If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist.”

The same principle have been distinctly laid down by the Privy Council in Bijoy Gopal Mukjerje v. Krishna Mahishi Debi,3 . In that case a reversioner sued for a declaration that a lease granted by the widow of the last male owner was not binding on him and for khas possession. The plea that there must have been a prayer for setting aside the lease was negatived in emphatic terms; and it was further held that, even if the plaint, in such cases contained a prayer for declaration or cancellation, it must be held to be purely incidental and not a necessary relief and that in such a case it was open to the plaintiff to treat the lease as a nullity without intervention of any Court. In Vellayya Konar V. Ramaswami Konar1, Wadsworth, J. laid down the law broadly as follows:

“When the plaintiff seeks to establish a title in himse