1. The question in this civil revision petition relates to the court-fee payable in respect of a suit filed by the petitioner, O.S. No. 247 of 1942, in the Court of the District Munsiff of Devakottah. The substantial plaint prayers are (1) To declare that the sale deed dated 31st July, 1937, executed by the plaintiff in the name of the first defendant and relating to the plaint property is a nominal and sham transaction and that the first defendant had no title to the property covered by the said sale deed and (2) to grant an injunction restraining defendants 5 and 6 from bringing the property to sale in execution of a decree. The petitioner valued his suit for purpose of jurisdiction at Rs. 500 and paid a court-fee of Rs. 56-3-0 under Section 7, Clause (iv)(c) of the Court-Fees Act. The amount for which the sale deed in respect of which the declaration was sought in the plaint was executed is Rs. 6,000 and the District Munsiff held that the value of the suit was more than Rs. 5,000, so that he had no jurisdiction and that court-fee should be paid as for cancellation of the sale deed. The principal Subordinate Judge of Devakottah confirmed the order of the District Munsiff and dismissed the appeal to him.
2. The argument addressed to me in support of the petition is that the petitioner was entitled to pay court-fee under Section 7 Clause (iv)(c) in respect of his' plaint because the allegation in the plaint is that the sale deed, Ex. D-3, is not merely voidable but was a sham and nominal document which was void ab initio and which affected no transfer of the property. In my opinion, this contention, having regard to the prayers in the suit, is quite misconceived. The cases to which I have been referred in support of the argument, Adinarayana v. Rattamma (1944) 1 M.L.J. 497, decided by Horwill, J. and Krishnaswami v. Kuppu Ammal : AIR1929Mad478 , decided by Ourgenven, J., are cases in which what was asked for was a declaration of title and the question arose whether it was open to the plaintiff to ask for a declaration of title only and pay court-fee accordingly or whether he had not to ask for a declaration in respect of the cancellation of the deed that stood in the way of his claim to title to the property. It was held in these two cases that if the allegation was that the document was sham and nominal and had not effected a transfer of the property, the document could be ignored and a declaration of title could be asked for without first setting the deed aside. In the present case, however, the Court is asked to declare the sale deed to be a sham and nominal transaction. The question is not whether the plaintiff has not to seek any relief or pay court-fee in respect of the document because he is entitled to ignore it. He has asked for a declaration in respect of the document. The sole question is whether as he was himself a party to the document the relief which he should properly ask for is not for a declaration but cancellation of the document. In my opinion as the plaintiff is a party to the document the relief prayed for should be its cancellation and not a mere declaration in respect of it, which is the view expressed by Wadsworth, J., in Vellayya v. Ramaswami : AIR1939Mad894 . In my opinion, therefore, the lower1 Courts were right in their view that the District Munsiff had no jurisdiction and that Court-fee would be paid under Section 7, Clause (iv-A).
3. The petition is therefore dismissed with costs, one set to be shared by the first defendant and the Government Pleader.