THIRUMALAYANDI THEVAR Vs. UTHANDA THEVAR

JUDGEMENT

(1.) THIS revision petition raises the question of court -fee payable on the plaint brought by the petitioner herein in O.S. No. 60 of 1945 in the District Munsiff's Court, Tenkasi. The learned District Munsiff held that the relief prayed for by the plaintiff fell in substance under Section 7(iv -A) of the Court -Fees Act and that consequently court -fee should be paid on the actual market -value of the properties affected by the sale deed dated 16th December, 1942, in respect of which a declaration was asked for in the plaint. The petitioner's contention is that in view of the position taken by him that the said sale deed was a sham and nominal transaction and hence inoperative, the provisions of Section 7(iv -A) of the Court -Fees Act were not attracted. The question is which view is correct.

(2.) ONE Thirumalayandi Thevar was the owner of the plaint mentioned properties. He had two daughters Sundarathammal and Achi Ammal. The former had two sons, the plaintiff and his younger brother Vellaiyappa Thevar. The latter had one daughter Ramayee alias Ramathal. After the death of Thirumalayandi Thevar (senior), the property passed to the daughters and for the purpose of convenient enjoyment they seem to have divided it into two shares and enjoyed each her share separately. On the 13th May, 1940, Ramathal the daughter of Achi Ammal who was in possession of her mother's share executed a deed of settlement in favour of three persons. Vellaiyappa. Thevar filed O.S. No. 6 of 1941, Sub -Court, Tinnevelly, to set aside the aforesaid deed of settlement executed by Ramathal as being invalid and inoperative. While that suit was under contemplation, a document of transfer was taken from the plaintiff of his half share in the properties which were in the possession of Achi Ammal's daughter. This transfer was found to be inoperative being a transfer of mere spes successionis and eventually a decree was passed in O.S. No. 6 of 1941 in favour of both the plaintiff therein Vellaiyappa Thevar and his elder brother the plaintiff in the present case. In this state of affairs, another transfer was executed by the plaintiff on 16th December, 1942, for Rs. 1,000 in favour of the defendant in the present action conveying to the latter the plaintiff's interest in the said property, i.e., the share that was being enjoyed by Ramathal. It is to avoid that sale and to obtain a declaration that the same was sham and nominal and never intended to be acted upon and not valid in law that the present suit was instituted by the plaintiff. In paragraph 8 of the plaint it is urged that he executed the sale deed and had it registered, that he received no consideration whatever for the sale deed and that it was only a sham and nominal transaction. He explains that because the first sale dated 16th May, 1940, was executed for Rs. 1,000 the latter transfer of 16th December, 1942, was also executed for the same amount. Although the document recites that cash consideration was paid, the recital is not true and was made only for the sake of formality. It is further averred that the plaintiff did not receive from the defendant Rs. 600 for the expenses of O.S. No. 6 of 1941 or any amount for family expenses or for making jewels. He remained ex parte in the prior suit. In paragraph 9, again, it is said that the sale deed was not executed with the idea that it should be operative and take effect and that the defendant has not acquired any interest in the suit property through the said document. The following passage in that paragraph is significant:

(3.) THE main contention of Mr. A. Swaminatha Ayyar for the petitioner is that the prayer for declaration with reference to the sale deed dated, 16th December 1942, is superfluous and unnecessary -and hence it is not essential for the plaintiff to get the sale deed cancelled or set aside for obtaining the relief regarding possession of the properties. The learned Government Pleader urged that in the plaint as framed, the main relief that is required is the declaration touching the sale in question and possession is asked for merely by way of caution and as an incidental or consequential relief. Numerous decisions have been cited on both sides. In view however of the existence in this case of two features in combination which appear to me to decisively negative the petitioner's contention, it may not be necessary to deal exhaustively with the long series of cases cited at the Bar. Those features are (I) that the plaintiff himself was a party to the sale deed which he now impugns as being sham, nominal and inoperative and (2) that he has expressly and specifically asked in the plaint for a declaration that the said deed of sale is for the reasons mentioned by him not valid in law. In none of the cases brought to my notice I find that both these features were together present. On that ground alone it will be sufficient to hold that this case is distinguishable from the various decisions relied upon by the petitioner.