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 16 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 13 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 16 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 16 May, 1940, was executed for Rs. 1,000 the latter transfer of 16 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: At the time of sale deed the properties were not in the possession of the plaintiff. Up to this date he has not got possession. The defendant had also no possession till the filing of the plaint.

(3.) In paragraph 11 the plaintiff states that the defendant was making terrible attempts for the past one month to establish his interest in the suit properties and then adds: If the sale deed executed by the plaintiff were allowed to remain with the defendant the plaintiff apprehends much injury. Paragraph 11-A which seems to have been subsequently added says as follows: As the defendant had obtained delivery of possession of the properties through the Sub-Court, Tinnevelly the plaintiff has to get delivery of the said properties as a consequential relief. Though, in fact, the defendant had not obtained delivery of possession of the properties, yet as the records show that possession (symbolical possession) had been delivered to the defendant, the plaintiff in order to avoid unnecessary litigation in future has included that prayer. Paragraph 12 says that the cause of action arose on 16 December, 1942, the date of the execution of the sale deed and November, 1944, when the defendant claimed interest in the suit property. The prayer is couched in these words in paragraph 15: Therefore it is prayed that the Court may be pleased (a) to declare the sale deed as regards the undermentioned properties executed on 16 December, 1942, by the plaintiff in favour of the defendant is a banami one, that it was a sham and nominal transaction, that it was never intended to be acted upon and that it is not valid in law, (b) to direct delivery of possession of the properties from the defendant to the plaintiff as a consequential relief, (c) to decree that the costs of the suit may be paid by the defendant, and (d) for such other reliefs.