1. The civil revision petition has been filed against the order of the learned District Munsif, Tiruvannamalai, dated 23-3-1976 in O. S. No. 1207 of 1974. The plaintiff is the petitioner. He filed the suit for declaration to set aside the sale held by the revenue authorities on 9th July 1974, under the Revenue Recovery Act, in realisation of certain loans. contending that the sale was null and void. He paid court-fee under S. 25(d) of the Court Fees Act. The Court Fee Examiner gave a check-slip pointing out that the proper provision under which the court-fee should have been paid was S. 40(1) of the Court Fees Act. The matter came before the learned District Munsif for determining the question whether the court-fee paid by the plaintiff was correct and whether he had to pray for cancellation of the sale held on 9th Oct. 1973, in which event a higher fee became payable. After discussing the rival contentions he held that the plaintiff had to value the suit under S. 40(1) of the Court Fees Act and seek also a prayer for cancellation of the revenue sale. The plaintiff has, therefore, filed the present civil revision petition questioning the legality of this decision.

2. Sec. 25 provides as follows--

"25. Suits for declaration--In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under S. 26--

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher;

(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one half of the market value of the property or on Rupees three hundred, whichever is higher;

(c) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on Rs. five hundred, whichever is higher;

(d) In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher".

3. It may be seen that the last clause viz., Cl. (d) would arise for consideration only if the prayer in the suit does not fall within the scope of Clauses (a) to (c). In the present case, there is no dispute about the prayer not falling within Cls. (a) to (c). In other words, if Section 25 were looked into, it would be necessary to refer only to cl. (d) for the purpose of ascertaining the proper court-fee payable in the present case.

4. However, the other provision that is referred to is S. 40, which runs as follows:--

"40(1) Suits of cancellation of decrees, etc.--In a suit for cancellation of a decree for money for other property having a money value, or other document which purports or operated to create declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be--

If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed related only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less;

Explanation: A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section".

5. This provision applies to cases where the suit is for cancellation (a) of a decree for money, (b) other properties having a money value, or (c) other document which purports or operates to create, declare, assign, limit or extinguish any right, title or interest among others in the immovable property. In such cases, the fee has to be paid on the value of the subject-matter of the suit. The question in the present case is whether the suit is or should be for cancellation of a document which purports or operates to create any title in the immovable property which has been sold in the revenue sale consequent on the default of the plaintiff in not paying the amount of Rs. 314-56 on account of Government loans due by him to the State Government. There is no dispute about the fact that the property was proceeded against under the Revenue Recovery Act, for the purpose of enforcing the demand and that it could be so proceeded against. The contention, however, for the petitioner is that the sale is illegal.

6. Para 6 of the plaint sets out the several grounds on the basis of which it is contended that the sale is illegal. The learned counsel for the petitioner referred me the fact that for a sum of Rupees 314-56 the entire landed properties of over six acres had been sold and this would be illegal. He pointed out also that the actual amount that fell due was Rs. 314.56, while the sale was effected for Rs. 970-76. He relied on the absence of a proclamation of sale or due publicity for effecting the sale and also on the property of a minor having been brought to sale, which would be bad in law. The minor above referred to is not the plaintiff, but his son and the properties brought to sale are the properties belonging to the joint family of which the minor is a member. The contention is that the share of the minor in the said properties could not have been brought to sale, so that the sale itself would be void.

7. There is no direct decision bearing on this question whether in a case like this the plaintiff can ask for cancellation of the sale. The learned counsel for the petitioner relied on a decision in Kaka Hajee Md. Ishaque Sahib v. Md. Saddiq Sahib, (1970) 1 Mad LJ 207. In that case, the allegation in the plaint was that the plaintiff was the absolute owner of the properties, that in order to save the properties from the reach of creditors, and the Income-tax department he executed a sham deed of gift in favour of his son and that the gift deed was void in law. The donee had in that case transferred by sale those properties and the further contention was that the sale deed was void. Court-fee had been paid under S. 25(a) of the Madras Court-fees Act and the question was whether the court-fee should be paid under S. 40 of the same Act. It was pointed out that where a suit was filed for a declaration of the plaintiff's title to the suit property alleging that the alienees acquired the property under a sale deed executed by a person who had no title to the same, the plaintiff could succeed in the suit without asking for cancellation of the deed of gift or the deed of sale. It was held that such a suit would be governed by S. 25(a) and not by Section 40 of the Act. This case is clearly distinguishable because the sale deed had been executed by the donee, who had no real title to the property as the gift deed in his favour was a sham and nominal instrument. Thus, the plaintiff in that case was not a party to any instrument of sale which he had to get rid of. He could contend that the whole transaction of sale by a person who had not title to the property was void. Such a case could well be outside the scope of S. 40. Even there it would be necessary to examine if the gift deed had to be got rid of before the relief of declaration could be granted. It is not necessary to pursue this aspect further. It is enough to state that the principle of that case cannot apply here, as in the present case the plaintiff himself has borrowed money from the Government, in enforcement of which the revenue sale has been held. He cannot say that he was not a party to the transaction, so that he could completely ignore it.

8. A Bench of this court in Sahul Hameed Rowther v. Mohideen Pichai, (1948) 1 Mad LJ 270 dealt with a case where the plaintiff alleged that a sale deed executed by him in favour of the defendant was a sham and nominal transaction. He prayed for injunction. It was held that it was not necessary for the plaintiff to pray for cancellation of the deed and to value the suit for the purpose of court-fee and jurisdiction under S. 7(iv-A) of the court Fees Act then in force. It was pointed out that there could be no objection to the plaintiff's drawing the attention of the court to the fact that in deciding whether the plaintiff was entitled to an injunction, it would first have to decided whether the document in question was sham and nominal and it could not be said that the plaintiff should pay additional court-fee for cancellation merely because he alleged that the document was sham in his plaint.

9. In Vellayya Konar v. Ramasami Konar, ILR (1940) Mad 73, the test laid down by Wadsworth J. at page 75 was as follows--

"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 and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can be done only by parties to the decree or deed or their representatives. His proper remedy, therefore, in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must, therefore, sue for such a declaration and not for the cancellation of the decree or deed."

10. That was a case where a creditor was seeking a declaration in respect of a property alienated in fraud of creditors coming within the scope of S. 53 of the T.P. Act. The proper prayer, in such a case, it was held, was for a declaration that the sale was not binding upon the creditors and not a prayers for cancellation of the deed.

11. There is also a Full Bench decision in Sankaranarayana Pillai v. Kandasamia Pillai, 1956-2 Mad LJ 411. In that case, a minor was co-nominee a party to a sale deed executed by a guardian. He sued for possession. It was held that it was not enough for him to merely sue for possession and pay court-fee on that basis, but he must sue for the cancellation of the document as the document had to be set aside. Where the sale deed was executed by the guardian of the minor, it should be deemed as if the minor, it should be deemed as if he were co-nominee a party. But where a transaction is entered into by the manager of the joint family of which the minor is a member, and the properties alienated belong to the joint family, it was open to the minor to ignore the transaction and seek possession of the property. As, however, the transaction entered into by a guardian relating to a minor's properties was not void but was only voidable, at the instance of the erstwhile minor, within three years of his attaining majority, the minor was deemed to be a party to the transaction, and he had, it was held, to pray for cancellation and to pay the court-fee accordingly. The decision of Wadsworth J. in Vellaya Kone v. Ramasami Kone ILR (1940) Mad 73 was referred to with approval.

12. The principle applicable to a case like this is clear. The plaintiff must pay court-fee in accordance with the relief which he is already seeking. He cannot be allowed to evade payment of court-fee by omitting to ask for relief when the success of the suit depends on the relief being granted to him. In the Full Bench of Ramaswami v. Rangachariar, ILR (1940) Mad 259, the plaintiff was held bound to value the suit on the basis of the value of the properties alienated which he was impugning even though the suit was only for partition and accounting and did not ask for cancellation of the alienation. The omission to seek a declaration that a transaction is void is of no consequence.

13. There is a decision of Jagadisan J. in Gopalakrishna Iyengar v. Sirrengammal, 1964-1 Mad LJ 278, which was strongly relied on by the Additional Government Pleader in support of the proposition that in a case like this Section 40 alone would have to be applied. That was a suit by a son for recovery of possession of properties and accounts from his mother who claimed to have a life estate in the properties under an earlier partition. The conclusion of the Court was that the minor had to pray for the cancellation of the partition before he could succeed in a suit for partition. The contention that was advanced in that case was that S. 40 would be inapplicable, as the document for partition was void and need not, therefore, be set aside as the void instrument was non est in law. The learned Judge held that S. 40 would apply to a case of cancellation of a document which 'purports or operates to create, declare, assign' etc. and it could not be said that the document of partition purports to create certain rights.

14. The passage from the judgment of Wadsworth J. in Vellaya Kone v. Ramasami Kone, ILR (1940) Mad 73 brings out the principle to be applied in such cases. If the relief claimed cannot be granted without the removal of the deed or decree to which he is a party, then he must get the deed or decree to which he is a party set aside or declared void. Where he is not a party to a document or decree, he cannot have it set aside as in such a case, he can ignore it. This is not a case where the void or illegal character of the sale is writ large on it, as, for example, the case of a minor who alienates property as if he was a major. In this case, without getting the revenue sale cancelled, it would not be possible for the plaintiff to establish his title to the property. He is in fact and in truth questioning only the validity of the revenue sale. Therefore, he has to ask for the cancellation of the sale effected by the Revenue Recovery Act. It is true that for a paltry sum, a substantial property has been sold and he has to pay a large sum as court-fee to set aside a sale which was only for a small amount. The question has to be decided on the basis of the statutory provision and not on equities. It has, therefore to be held, that this is a case which falls within the scope of S. 40 of the Act as the plaintiff can succeed only by having the revenue sale set aside, an necessarily the additional court-fee as required by that section will have to be paid.

15. The civil revision petition, therefore, fails and it is dismissed. No. costs.

16. Revision dismissed.