Adam Ibrahim Sait vs K. Simruthmall and Another

K. Veeraswami, J.—The petitioner sued for a declaration that the two sale deeds which he had executed in favour of the first defendant

were meant only as security for a loan of a specified sum and for recovery of possession of the plaint schedule properties, after taking an account

of the receipts from the hypotheca, and setting off these against the considerations for the mortgages and for passing a decree for the surplus

receipts. The execution of the two documents has been admitted. But the petitioner''s case was that they were intended to operate only as

securities and there were lease deeds in favour of the first defendant covering the suit properties and agreements to reconvey them to the plaintiff.

In effect, the suit is one for redemption of a mortgage and for accounts. The Court below considered that the plaint impliedly asked for cancellation

of the two sale deeds and directed payment of Court-fee on that basis. It also directed the petitioner to pay Court-fee on the relief for accounting

u/s 33(8) read with Section 35 on a sum of Rs. 73,000. The plaint had been valued u/s 33(8), that is to say, Court-fee will be payable on one-

fourth of the principals secured under the mortgages. The relief of accounting was valued u/s 35(1). The petitioner being aggrieved by the orders of

the Court below preferred a revision petition and also a petition to appeal in forma pauperis. When the Civil Revision Petition came up before one

of us, it was directed to be posted along with the petition to be disposed of by a Bench.. This was in view of the petition to file the appeal in forma

pauperis.

In our opinion, the valuation for purposes of Court-fee made by the petitioner was correct. The point turns on whether the petitioner should be

deemed to have asked for cancellation of the two sale deeds. We are of the view that, having regard to the case of the petitioner, no cancellation at

all need be asked for. As we mentioned, the petitioner himself admits in the plaint that the two documents were executed as sale deeds. But he

alleges that they were meant to operate only as mortgages on certain terms in relation to leases and agreements to reconvey. It is obvious

therefore, that if the sale deeds are cancelled, there will be then no basis for the petitioner''s case that they operated only as mortgages and that as

such he was entitled to redemption and the relief on accounting. This is not a case where the sale deeds operated as an impediment or obstruction

to the relief of possession and accounting. On the other hand, the petitioner has to stand by the transaction but only treating them as mortgages, far

from getting them cancelled, which would at once put an end to his case.

Our attention has, however, been invited to an order of Venkatadri, J., in C.R.P. No. 1764 of 1961. There, a son-in-law executed a sale of

Immovable properties in favour of his father-in-law and later sued his brothers-in-law for redemption of the properties covered by the sale deeds

as if they were only mortgages and for accounts. The learned Judge held that Court-fee was payable as if the suit was one for cancellation of the

sale. With due respect, we are unable to share that view. If the sale in that case is to be cancelled, we fail to see the basis on which the prayer for

redemption and for accounts can be maintained. Cancellation will at once entail dismissal of the suit. The learned Judge adverted to a number of

decided cases in coming to his conclusion, but it seems to us that they were all cases in which, but for cancellation of the documents they would

operate as an obstacle to the relief of possession. That, as we endeavoured to point out is not the case in the instant case, as indeed in the case

before Venkatadri, J. Where, therefore, a certain document is the very basis of the plaint claim for redemption and accounts, but the prayer is

based on the averment that its effect in law, in the light of facts to be established, is something different from what ex facie it purports to be, there is

no need for asking for cancellation. On that view, the orders of the Court below are set aside, and treating the application to appeal in forma

pauperis as an appeal and the plaintiff-appellant for the purpose of the appeal as a pauper, allow the appeal. In view of this, the Civil Revision

Petition will stand dismissed, but with no costs. Since the appeal has succeeded which means the plaint has to be taken on file and proceeded with

by the Court below, there need be no formality of payment of Court-fee and refund and therefore, no question of recovery of Court-fee from the

petitioner in the appeal will arise. We may add that nothing we have said in our judgment should be construed as an expression of opinion on the

merits of the petitioner''s case in the plaint.