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Sahul Hameed Rowther v. K.P.C Mohideen Pichai.
Factual and Procedural Background
The respondent alleged that a sale deed executed by him in favour of the petitioner was sham and nominal. He sought a declaration to that effect and an injunction restraining the petitioner from interfering with his possession; alternatively, if possession was disturbed, he prayed for possession. The respondent paid Court-fee under Section 7 (v)(b) at ten times the kist, which was higher than the Court-fee payable for declaration and injunction under Section 7 (iv)(c). The District Munsiff held that the suit should have been valued and Court-fee paid under Section 7 (iv-a), treating the suit as effectively seeking cancellation of the sale deed. Since the suit value was Rs. 6000, beyond his jurisdiction, the plaint was returned for presentation to the proper Court. On appeal, the District Judge reversed this decision, holding that the suit was properly valued and the correct Court-fee paid, directing the District Munsiff to take the plaint on file and dispose of the suit according to law.
Legal Issues Presented
- Whether, given the plaintiff's allegation that the sale deed was sham and nominal, it was necessary for the plaintiff to pray for cancellation of the deed and to value the suit for jurisdiction and Court-fee purposes under Section 7 (iv-a).
Arguments of the Parties
Petitioner's Arguments
- The petitioner contended that because the plaintiff specifically asked for a declaration that the sale deed was sham and nominal, the plaintiff must pay Court-fee for that relief under Section 7 (iv-a).
Respondent's Position
- The respondent argued that if the plaintiff had ignored the deed and only prayed for injunction or possession, the Court-fee paid under Section 7 (iv)(c) would have been proper.
- The respondent maintained that mentioning the sham and nominal nature of the deed in the plaint was necessary to assist the Court in framing proper issues but should not attract additional Court-fee.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Swaminatha Iyer v. Rukmani Ammal, A.I.R. 1920 Mad. 88(1) | When a transaction is sham and nominal, it need not be formally set aside and can be ignored. | Supported the principle that sham transactions are not insuperable obstacles to relief. |
| Petherperumal Chetti v. Muniandi Servai, (1908) 18 M.L.J. 277; L.R. 35 I.A. 98; I.L.R. 35 Cal. 551 (P.C.) | Same as above regarding sham and nominal transactions. | Reinforced the principle that sham transactions do not require cancellation to be disregarded. |
| Vellayya Konar v. Ramaswami Konar, (1939) 2 M.L.J. 400; I.L.R. 1940 Mad. 73 | Test by Wadsworth, J.: If plaintiff cannot establish title without removing an insuperable obstacle (like a decree or deed), such obstacle must be cancelled or declared void. | Guided the court in determining when cancellation of a deed is necessary. |
| Thirumalayandi Thevar v. Uthanda Thevar, (1947) 1 M.L.J. 212 | Document purported to transfer property considered an insuperable obstacle to injunction or possession. | Illustrated cases where cancellation is necessary if document is a real obstacle. |
| Ramanathan Chettiar v. Ramanathan Chettiar, (1946) 2 M.L.J. 114 | Similar principle as above regarding insuperable obstacles. | Used to contrast with sham and nominal deeds which are not obstacles. |
| Krishnaswami v. Kuppu Ammal, A.I.R. 1929 Mad. 478 | Prayer for declaration of title is equivalent to declaring a sale deed sham and nominal; proper Court-fee paid under Section 7 (iv)(c). | Held as authoritative for the position that Court-fee paid was sufficient even when sham nature of deed was alleged. |
Court's Reasoning and Analysis
The Court examined whether the plaintiff was required to pray for cancellation of the sale deed and pay Court-fee under Section 7 (iv-a) due to the allegation that the deed was sham and nominal. The Court referred to precedents establishing that sham and nominal transactions do not constitute insuperable obstacles to relief and thus do not require formal cancellation. The Court found that if the plaintiff had ignored the deed and only sought injunction or possession, the Court-fee paid under Section 7 (iv)(c) would have been proper. The plaintiff’s mention of the sham and nominal nature of the deed was seen as assisting the Court in framing issues, not as a ground for additional Court-fee. The Court relied on the principle that only when a document is a real insuperable obstacle must it be cancelled or declared void for relief to be granted. Since the sham deed did not transfer title, it was not an obstacle. The Court cited Krishnaswami v. Kuppu Ammal as authority supporting this view and upheld the decision of the lower appellate Court that the Court-fee paid was sufficient.
Holding and Implications
The petition is dismissed with costs.
The decision confirms that when a sale deed is alleged to be sham and nominal, it is not necessary to pray for its cancellation or pay Court-fee under the higher valuation category applicable to cancellation suits. The Court emphasized that sham transactions do not constitute insuperable obstacles to relief, and merely alleging such a transaction does not attract additional Court-fee. This ruling directly affects the parties by affirming the correctness of the Court-fee paid and the jurisdiction of the Court to try the suit. No new precedent beyond the application of established principles was set.
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(1), arid Petherperumal Chetti v. Muniandi Servai (1908) 18 M.L.J. 277 : L.R. 35 I.A. 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 (1939) 2 M.L.J. 400 : I.L.R. 1940 Mad. 73 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 (1947) 1 M.L.J. 212, and Ramanathan Chettiar v. Ramanathan Chettiar (1946) 2 M.L.J. 114, 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 A.I.R. 1929 Mad. 478, 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 A.I.R. 1929 Mad. 478 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.
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