The respondent, alleging that a sale deed executed by him in favour of the petitioner was sham and nominal, prayed for a declaration to that effect and for an injunction restraining the defendant (petitioner) from interfering with his possession; in the alternative, in case the Court should find that his possession had been disturbed, he prayed for possession. He paid Court-fee under section 7(v)(b), at ten times the kist, which was higher than the Court-fee payable on the alternative relief for declaration and injunction under section 7(iv)(c). The District Munsiff before whom the suit was filed held that the suit should have been valued and Court-fee paid according to section 7(iv-A), since by implication the plaintiff was asking for cancellation of the sale deed. He found that the value of the suit according to section 7(iv-A) was Rs. 6000, which was beyond his jurisdiction. So he returned the plaint for presentation to the proper Court. The plaintiff took the matter in appeal to the District Judge, who reversed the order of the District Munsiff and found that the suit was properly valued and that the proper Court-fee had been paid. He therefore directed the District Munsiff to again take the plaint on file and dispose of the suit according to law.

The short point that arises in this Civil revision petition filed by the defendant is whether in view of the plaintiff’s allegation that the sale was sham and nominal, it was necessary for the plaintiff to pray for cancellation of the deed and to value his suit for purposes of jurisdiction and Court-fee under section 7(iv-A).

We have been referred to many cases, of which Swaminatha Iyer v. Rukmani Ammal1, and Petherperumal Chetti v. Muniandi Servai2, may be cited as examples, in which it has been held that when a transaction is sham and nominal there is. no need to have the transaction formally set aside, and that it can be ignored.

In most of the cases cited to us subsequent to Vellayya Konar v. Ramaswami Konar3the test laid down by Wadsworth, J., has been applied. He said,

‘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 dearly he must get that decree or deed cancelled or declared void: in toto."

So the learned Judges have asked themselves in the various cases which have been cited before us whether there was any insuperable obstruction to granting the relief prayed for. If there existed a document which amounted to an insuperable obstruction, then it was necessary to have the obstruction set aside by praying for its cancellation. In Thirumalayandi Thevar v. Uthanda Thevar4, and Ramanathan Chettiar v. Ramanathan Chettiar5, it was presumed that the document which purported to transfer property from one person to another was an insuperable obstacle to the granting of a decree for injunction or possession in favour of the person who under that deed purported to convey the property to another; but is such a deed, when it is said to be sham and nominal and is worth nothing more than the paper on which it is written, an insuperable obstacle to the granting of any relief to the person who under that document purports to convey the property to another? In all the cases to which we have been referred and in which this question has arisen it has been uniformly held, as pointed above, that it is not necessary to set aside a transaction which does not effect any transfer of title at all. If so, then the transaction and the document evidencing it are not insuperable obstacles to the granting of the plaintiff’s prayer. If the Court finds that title did pass by the document, then a suit merely praying for a declaration that the transaction was sham and nominal will have to be dismissed, even though the Court might be of opinion that the plaintiff had a right to have the deed cancelled.

So far there is no dis