K.M. Natarajan, J.
1. The plaintiff is the revision petitioner. He has filed the suit for declaration of title and for recovery of possession. According to the petitioner herein, he got the suit property and other properties to his share in an oral partition between him and his father. His step-brother Aruladum Perumal Pillai who was born to his father through his second wife, made a claim to the suit property. The defendant (first respondent herein) who is the plaintiff's father's sister's husband represented that a sham and nominal settlement deed might be executed by the petitioner in his favour in order to protect the property; accordingly he executed the settlement deed on 29.7.1972. About two years prior to the filing of the suit, that is, in 1976, the defendant who is the first respondent herein claimed title to the suit property and refused to execute necessary document in favour of the petitioner and also trespassed into the property. To the notice issued by the petitioner, he set up title on the basis of the settlement deed. Thereafter the petitioner herein filed the suit for declaration of title and for recovery of possession. In the body of the plaint, he has averred that the said settlement deed in favour of the first respondent is sham and nominal and that it need not be set aside.
2. The first respondent herein resisted the claim and filed a written statement contending that the said settlement deed is a true and valid document, that in pursuance of the same, he got possession and that it was executed voluntarily out of love and gratitude towards the first respondent.
3. The court below framed two issues, along with other issues, one in respect of pecuniary jurisdiction and the other in respect of the valuation of the suit property for the purpose of court fees and jurisdiction. The learned District Munsif held that court-fee has to be paid as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and that the court has no pecuniary jurisdiction since the market value of the property definitely exceeds his pecuniary jurisdiction and returned the plaint for presentation before proper court. The petitioner was unsuccessful in the appeal also. Hence this revision.
4. Learned Counsel for the petitioner mainly contended that since the plaintiff sued for declaration of title and recovery of possession alleging that the settlement deed in favour of the first respondent is sham and nominal, he is not obliged to ask for the cancellation of the settlement deed and as such, no court-fee need be paid under Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act. In support of the said contention, the learned Counsel for the petitioner relied on the decisions of this court reported in Krishnasami v. Kuppu Animal : AIR1929Mad478 ; Adinarayana v. Rattamma : AIR1944Mad408 and Hameed v. Mohideen : AIR1948Mad451 . It was held in the above decisions that when the plaintiff's case is that the document is a sham and nominal one, it need not be set aside and the suit for the relief on that footing is not one for cancellation. But, even in such cases if the plaintiff sues for cancellation, he would have to pay court-fee for the relief, whether it was necessary for the deed to be cancelled or not. This Court had occasion to consider these decision in Gnanambal Ammal v. Kannappa Pillai (1959) 1 M.L.J. 355 wherein it was held:
In order to determine the class under which a suit falls for purpose of court-fee, the substance of the relief as disclosed in the plaint, taken as a whole, should be looked into and not the' form of the prayer in which the relief is cast. The plaintiff cannot be allowed to evade the payment of proper fee or undervalue the suit for purposes of jurisdiction by omitting to ask for a relief when the success of suit depends on the relief being granted to him. The basis of determination of court-fee is, of course, the suit as laid in the plaint and not the contentions in the defendant's written statement.
It was further observed:
Where in spite of profuse allegations in the body of the plaint about the deeds being sham and nominal, the relief asked for cannot be granted without the deeds being cancelled or set aside, the suit must be held to be in substance one for cancellation or setting aside of the deeds which are an obstacle to the plaintiff's claim and, therefore, suit would fall under Section 40 of the Madras Act XIX of 1955 and under Section 53 of the Act, the value for court-fee would determine the value for purpose of jurisdiction also.
In A. Gopalakrishna Iyengar v. P. Sirrengammal and Anr. : (1964)1MLJ278 , Jagadisan, J. had occasion to consider the scope of Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and held:
Section 40 applies to a document which 'purports or operates to create, declare, assign etc.'
It was observed:
It cannot be gainsaid that this document of partition purports to create certain rights. The question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of Section 40. Having read the provision of the Act, I am unable to say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision.
Consequently, the learned Judge dismissed the revision filed in that case. In another decision which was brought to the notice of this court, namely, Mrs. J. Kasthuri v. Ser. h Ghanshamdas V.D. Bank : (1979)2MLJ11 M.M. Ismail, J. (as he then was) held:
For the purpose of determining the court-fee payable, it is the substance of the relief that a plaintiff prays for that has to be taken into account and not the technical form of the prayer. Otherwise, mere astuteness and ingenuity of the person drafting the plaint will have the effect of not only camouflaging and disguising the real relief which a plaintiff claims in a suit but also nullifying and defeating the provisions of law dealing with the payment of court-fee based on the nature of the relief litigants seek in a court of law.
It was further held:
By merely couching the prayer in the form of a declaratory relief, the plaintiffs cannot avoid the reality of the situation.
Thus, even though the petitioner has not asked for the relief of cancellation of the settlement deed in favour of the first respondent in the relief, yet it is clear from the substance of the relief as disclosed in the plaint taken as a whole that without the settlement deed in favour of the first respondent being cancelled and set aside, no relief of declaration of title and recovery of possession can be granted to the petitioner in respect of the suit property as the petitioner himself has admitted the execution of the deed. The deed filed along with the plaint clearly reads that it was executed out of love and affection towards the first respondent and that possession was delivered in pursuance of the same. Admittedly the first respondent is in possession of the suit property and that even in the reply notice, which is referred to in the plaint, he is claiming title only through the said settlement deed. It is not is dispute that the recitals in the settlement deed purport to create rights in favour of the first respondent. Both the courts below have correctly applied the principles laid down by this court in the above quoted latest decision and have arrived at a concurrent finding. I do not find any infirmity whatsoever in the said finding. Consequently the revision fails and stands dismissed. There will be no order as to costs.
5. Learned Counsel for the petitioner, after delivering the order, drew my attention to the fact that at the time when the order was passed by the District Munsif, the District Munsif was having pecuniary jurisdiction to try a suit of the value of only upto Rs. 5,000. According to the valuation of the suit as found by the Munsif's Court, it comes to Rs. 9,000. As per T.N. Act 34 of 1981, the pecuniary jurisdiction of the District Munsif's Court has been enhanced to Rs. 15,000 and as such the plaint can be re-presented before the lower court, namely District Munsif's Court, Paramakudi. The learned Counsel for the respondents has no objection for the same. But while re-presenting the plaint, it has to be valued under Section 40 of the Court Fees Act as observed by the court below which was confirmed in the revision and additional court-fee paid. Time for payment of the additional court-fee 4 weeks from the date of receipt of the records by the court below. The civil revision petition is ordered accordingly.