A plaintiff is not obliged to set aside a sham settlement deed before seeking other reliefs if the deed is characterized as a fictitious transfer and does not result in an actual transfer of property.

Curgenven, J.

1. The petitioner in this Civil Revision Petition sued for a declaration of his title to a certain property and for an injunction to restrain the defendants from interfering with his possession. One Vedantam Ayyangar, who died in May 1927, executed in September 1925 a settlement deed in respect of the property in favour of two daughters of a daughter. The plaintiff as the son of another daughter and as such claiming to be Vedantams heir, alleges that this settlement deed was a mere sham, contrived as a defence against a maintenance claim, and that no property was intended to pass. Accordingly in bringing his suit he did not ask to have the deed set aside, and paid a Court-fee of Rs. 50 under Section 7 (iv) (c), Schedule 2, Court-fees Act, being the amount at which he valued the relief asked for by way of declaration and injunction. The learned District Munsif of Ambasamudram, in the order against which revision is sought, has held that the plaintiff was bound to get the document set aside before becoming entitled to the other reliefs.

2. The terms of the plaint make it quite clear, in my view, that the settlement deed was to be treated as evidencing a fictitious or sham transaction. In para, 9 it is alleged that when the document was executed it was never intended to interfere with Vedantams rights, that he never intended to divest himself of his interests in the properties and that the sole reason for executing it was as given above. No doubt there are some references to undue influence and fraud, but they do not necessarily imply that any transfer of property was occasioned by these means. The question, accordingly, is whether it was incumbent upon the plaintiff to get a document of this character set aside. The learned District Munsif in answering this question affirmatively, appears to me to have misread his authorities. In each of the cases which he cites in support of his view, not only was a document executed but an actual transfer of property took place, although for one reason or another that transfer may have been voidable. In the Privy Council case Janki Kunwar v. Ajit Singh [1888] 15 Cal. 53, there was a sale and a transfer of the property resulted, and in order to recover the property it was necessary to get the deal of sale set aside on the ground of fraud and undue influence. The Madras case, Unni v. Kunchi Amma [1891] 14 Mad. 26, relates to the recovery of property alienated by the karnavan of a Malabar tarwad. There was no question there of a sham document which did not in fact result in any transfer. In two other Madras oases Rangappa Nayakar v. Rangasami Nayakar A.I.R. 1925 Mad. 1005, and the Secretary of State v. Dadi Reddi Nagiah [1919] 36 M.L.J. 180, the difference between a benami and a sham transaction is touched upon. With these cases needs to be read the Privy Council judgment in Petheperumal Chetty v. Muniyandy Servai [1908] 35 Cal. 551, but it is unnecessary for me to analyse the two former cases as no case of benami is set up here. The Privy Council case is however, authority for the position that, where a deed is inoperative, it is unnecessary for a plaintiff to get it set aside as a preliminary to obtaining other reliefs. Certain quotations at p. 345 of Rajeswara Dorai v. Arunachalam Chettiar [1913] 38 Mad. 321, from the Privy Council judgment in Malkarjun v. Narahari [1901] 25 Bom. 337, if read in their context, make it clear that that too was a case of a real sale and not a nullity.

3. Besides the judgment of the Judicial Committee in Petheperumal Chetty v. Muniyandy Servai [1908] 35 Cal. 551, which of course concludes the question, the same view with reference to a sham transaction has been taken in Sangawa v. Huchan Gowda A.I.R. 1924 Bom. 174, and Swaminatha Ayyar v. Rukmani Ammal [1920] 11 M.L.W. 106. In the latter case Spencer, J., observes that:

whether a transfer is a real or a nominal one depends on whether the parties entering into the transaction have at the time an a