1. 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 pro-per Court. The plaintiff took the matter in appeal to the District Judge, who rever-sed 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.
2. 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).
3. We have been referred to many cases, of which Swaminatha Iyer v. Rukmani Ammal A.I.R. 1920 Mad. 88, arid Petherperumal Chetti v. Muniandi Servai (1908) 18 M.L.J. 277 : L.R. 35 IndAp 98 : I.L.R. 35 Cal. 551 (P.C.), 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.
4. In most of the cases cited to us subsequent to Vellayya Konar v. Ramaswami Konar : AIR1939Mad894 the 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 clearly 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 Thevar : AIR1947Mad415 , and Ramanathan Chettiar v. Ramanathan Chettiar : AIR1947Mad57 , 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.
5. So far there is no dispute. The learned advocate for the petitioner concedes that if the plaintiff had ignored the deed in his plaint and had merely asked for an injunction or possession as the case might be, then the defendant would have no argument to oppose the decision of the lower appellate Court that Court-fee was properly paid under Section 7 (iv )(c). If the plaintiff had not referred at all in his plaint to this sham and nominal transaction, the Court could not have hesitated for a moment in accepting his valuation of the suit, and if it found when evidence was let in about this transaction that it was sham and nominal, the plaintiff would have been entitled to a decree for injunction or possession. It is however argued that the plaintiff has not ignored the transaction and that he has specifically asked for a declaration that this transaction is sham and nominal and that he must therefore pay Court-fee for this relief. If this argument is correct, then the prayer for a declaration is superfluous, and there is no reason why the petitioner should pay Court-fee for it. We can see no objection to the plaintiff's drawing the attention of the Court to the fact that in deciding whether the plaintiff is entitled to an injunction or possession, it would first have to decide whether the document in question was sham and nominal. We think it desirable that the plaintiff should make mention of such a document in his plaint; but we do not think, because he in this way assists the Court in the framing of the proper issues, that he should be called upon to pay some additional Court-fee.
6. It has been said that no case has gone so far as to say that Section 7 (iv-A) would not apply where there was a prayer for a declaration that the sale was sham and nominal, but we find that in Krishnaswami v. Kuppu Ammal : AIR1929Mad478 , there was a prayer for a declaration of the plaintiff's title to the property. This seems to us the same thing as asking for a declaration that the sale deed was sham and nominal. If it was sham and nominal, then he had title. If it was not sham and nominal, then he had no title. So it seems to us that Krishnaswami v. Kuppu Ammal : AIR1929Mad478 is an authority for the position which we regard as the right one. We hold that the lower appellate Court was right in holding that the Court-fee paid was sufficient.
7. The petition is dismissed with costs.