A person who is not a party to a decree or a document is not bound to sue for its cancellation.

ORDER :- Venkata Reddi and Bapu Reddi were two brothers. The former died in 1917 leaving two widows of whom only one, viz., the first plaintiff is now surviving. Bapu Reddi died in 1936 leaving behind him two widows who are defendants 1 and 2. Venkata Reddi and Bapu Reddi had a sister named Chinnammal and the 3rd defendant is the son of this Chinnammal. A few days after Bapu Reddi died defendants 1 and 2 executed a surrender deed of their entire interest in the estate in favour of 3rd defendant. It is alleged in the plaint that the mother of 3rd defendant also joined in the execution of the document. The plaint alleges that the law applicable is the Mitakshara law as it prevails in Travancore and that according to that system of law on the death of Venkata Reddi and Bapu Reddi their estate vested in all the widows together.

The plaint further alleges that the surrender deed executed by defendants 1 and 2 and Chinnammal is void and of no legal effect whatsoever. After the execution of the surrender deed various alienations were effected. The plaintiffs, therefore sued to recover possession of the entire estate from defendants 1 to 3 and their alienees. In view of the doubt whether the 1st plaintiff was entitled to recover the properties on her own sole behalf the prayer was cast in the alternative for recovery of possession either for herself alone or on behalf of herself and defendants 1 and 2. There was also a prayer for a declaration that the surrender deed executed on 5th October 1936 by defendants 1 and 2 in favour of 3rd defendant and the alienation made by defendants 1, 2 and 3 are null and void and of no effect whatsoever as against the plaintiffs. Court-fee was paid as in a suit for possession. The Court-fee Examiner took the view that the alternative prayer could not be granted without the cancellation of the surrender and other deeds and that in consequence the plaintiff should pay court-fee on the market value of the shares of the defendants in the suit properties. This objection was upheld by the learned Subordinate Judge of Tirunelveli and it is against this order that the present revision petition has been filed.

2. The law in this province is perfectly clear that a person who is not a party to a decree or a document is not bound to sue for its cancellation. At page 279 in RAMASWAMI v. RANGACHARIAR, ILR (1940) Mad 259, the legal position has been thus explained.

"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."

In fact it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision VELLAYYA v. RAMASWAMI, ILR (1940) Mad 73,

"When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto, and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the de