Value for Court-fee and jurisdiction.

These are two Civil Revision Petitions sought to be filed against the Decrees and Judgments of the learned District Judge of South Arcot in C.M.A. Nos. 11 and 12 of 1958, confirming the Orders and Decrees of the learned District Munsif of Tirukoilur in O.S. Nos. 309 and 310 of 1956.

The facts are: The suit properties originally belonged to one Ramalingam Pillai, the father of the revision petitioner-plaintiff, Gnanambal Ammal. According to the plaintiff, Ramalingam Pillai died intestate and she became entitled to the suit properties after the lifetime of her mother Periyanayaki, who died in September, 1944. Kannappa Pillai (sole respondent in C.R.P. No. 1709 of 1958 and the second respondent in C.R.P. No. 1723 of 1958) is the brother of Periyanayaki. On 14th May, 1943, Periyanayaki Ammal executed a registered settlement deed which recites that she got the properties under the registered will of her husband dated 10th October, 1930 and had settled one half of the properties upon Kannappa Pillai and the other half on the children of the plaintiff. The plaintiff has subsequently executed sale deeds, mortgages, dated 30th October, 1945 2rd April, 1953 and 6th September, 1953 (Exhibits B-2 to B-5 in O.S. No. 309 of 1956) and another sale deed, dated 10th October, 1945. The plaintiff has now filed these two suits for a declaration of her title to the suit properties and for recovery of possession, which is admittedly with the alienee.

The contention of the defendant in O.S. No. 309 of 1956 was that when the plaintiff seeks to establish her title, this cannot be done without getting rid of the settlement deed dated 14th May, 1943 and the sale deed executed by her, which came into existence in pursuance of the settlement deed. The defendants in O. S. No. 310 of 1956 contended that the plaintiff cannot maintain the suit without a prayer for the cancellation of the usufructuary mortgage deed and the sale deed executed by her father on 10th October, 1930 (Exhibit B-1 and B-2) as also the sale deed executed by her on 10th October, 1945. It must be remembered that the contention of the plaintiff in this suit was that Ramalingam Pillai created those alienations in order to defeat the claim of Periyanayaki for maintenance. Therefore, the defence in the two suits was that the plaintiff must value her reliefs in accordance with section 40 of the new Court-fees Act and that under section 53 of the said Act the value of the suits for Court fee should determine the value for jurisdiction. It may be pointed here that the plaintiff has filed a memo. in each of the suits that the value of the properties concerned in each of the suits is more than Rs. 5.000.

Both the Courts below accepted the contention of the defendants and directed the return of the plaints for presentation to proper Court having pecuniary jurisdiction. Hence these revisions by the defeated plaintiff.

That the Revision Petitioner is bound in O.S. No. 309 of 1956 to sue for the cancellation of the settlement deed executed by her mother and the sale deeds mortgages executed by her, and in O.S. No. 310 of 1956 for the cancellation of the mortgage deed and the sale deed executed by her father and the sale deed executed by her before she can get any relief, can admit of no doubt whatsoever.

It is quite true that when the plaintiff’s case is that a document is sham and nominal, it need not be set aside and the suit for relief on that footing is not one for cancellation: Adinarayana v. Rattamma1, Krishnaswami v. Kuppu Ammal2, Ramanujam Pillai v. Ramaswami Pillai3, Hameed Rowther v. Mohideen Pichai4. 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 to have the deed cancelled or not; see the remarks in Adinarayana v. Rattamma1. The words “purports to create etc.” in section 40 of the new Court-fees Act make this clear beyond doubt. As however cancellation need not be asked for, the position summed up