In Re: Thirupathiammal

Ramaswami, J.—This is a Civil Revision Petition which is sought to be filed against the order made by the learned District Munsif, Erode, in O. S. No. 152 of 1954.

This was a suit filed by Arunachala Goundan. for a declaration of his sole title to items 1 to 3, 5 to 9, 11 and 12 of the plaint properties and title In a half share in items 4 and 10 and for possession and mesne profits.

The plaint allegations are; One S. A. Krishnaswami Goundan and the 2nd defendant are the sons of the plaintiff. They constituted a joint Hindu family, of which the plaintiff was the manager. One Subbaraya Goundan filed I.P. 146 of 1929 to declare him as an insolvent. The plaintiff herein was one of the creditors in that I. P. The properties of the insolvent were sold in auction by the Official Receiver, Coimbator, on 16-8-1953.

In that sale deft. 2, son of the plaintiff, for his father was the highest bidder and the sale was concluded in his favour and sale certificate was also issued in his name. From the date of sale the plaintiff was enjoying the properties by leasing them out, collecting rents etc. The 2nd defendant on account of misunderstandings between himself and plaintiff executed a fictitious sale deed in favour of the 1st defendant. Defendants 3 to 5 are the lessees thereof. The property G. S. No. 347. dry A. 7-54 cents, is owned by the plaintiff and defendants 6 and 7 in moieties. The 1st defendant sold the half share belonging to the plaintiff therein to defendants 6 and 7. The 8th defendant has obtained sale of 5-15 cents in G. S. No. 346 belonging to the plaintiff. 9th defendant is a co-sharer with the plaintiff in G. S. No. 9 and hence defendants 3 to 9 are impleaded.

In this suit a preliminary issue was framed as to whether the suit had been properly valued for purposes of court-fee and jurisdiction.

The controversy on the foot of which this preliminary issue had been framed is: The lands in dispute are lands paying only revenue to the Government within the meaning of Sec. 7 Cl. 5(b) of the Court fees Act and the plaintiff has paid Court-fee on the basis of ten times'' the annual revenue. It is contended by the contesting defendants that this suit should be construed as one for setting aside; the sale deed dated 12-3-1945 executed by the second defendant in favour of the first defendant and that accordingly the plaintiff should pay court-fee on the market value of the suit lands covered by the said sale deed which admittedly are worth Rs. 15,000.

The learned District Munsif rejected the contention of the defendants and held that the court-fee paid on the plaint is correct. Hence this Revision petition by the defeated defendants.

In Revision I consider that there are no merits whatsoever in this contention because on the plaint allegations no case has been made out for cancellation of the sale deed. It is well settled that a Court cannot go beyond the plaint allegations because it is the allegation in the plaint that determines the court-fee and the class under which the suit falls for the purpose of court-fee: The defendant''s allegations and contentions are immaterial for this purpose: - Thacharakkal Kannoth Areekastanoth Kuttu alias Kuttiammu and Another Vs. Othayoth Kokarippan Kalliani Amma and Others, ; The Secretary of State for India in Council Vs. A.R. Lakhanna, T.R. Manikkam Pillai and Another Vs. T.S. Murugesam Pillai and Others, While applying the provisions of the Act it should be remembered that the Act is a fiscal enactment and as such must be strictly construed and no extension of application of its provisions by analogy is permissible.

In case of doubt the Act should be construed in favour of the subject. But at the same time it should not be construed so as to furnish a means of evasion. The amount of court-fee should not depend on the dexterity with which the pleadings may be drawn for the purpose of evading the payment of proper court-fee. A plaintiff cannot be allowed to evade payment of proper fee by omitting to ask for a relief when the success of his suit depends upon the relief being granted to him. So in order to determine the class under which a suit falls for the purpose of court-fee, the substance of the relief as disclosed in the plaint taken as a whole should be looked into and not the form of the prayer in which the relief is cast: - Kayathan Roche alias G.C. Roche Vs. K. Chinnayya Roche, G. Athimoola Mudaliar Vs. Fathimathul Kubra Begum Saheba and Others, V.N. Alagar Aiyangar Vs. Srinivasa Aiyangar and Another, ''Ramaswami Ayyangar v. Rangachariar'', AIR 1940 Mad 113 (G).

But for this purpose it is not necessary to travel beyond the plaint allegations because assuming that in the course of the trial if it appears that it is the intention of the plaintiff to interpret the plaint in one way for the purpose of court-fee and in another way during the trial, the Court will be justified in returning the plaint for amendment so that the plaintiff be tied down to one specific case both for the purpose of court-fee and for trial see the unreported decision in ''C. R. P. No. 137 of 1947, D/- 13-2-1948 (G1)''. Court fee is to be charged on plaints as framed and not as they ought to be framed Venkata Ramani Aiyar and Another Vs. M. Narayanaswami Aiyar and Others, AIR 1938 Madras 645 . The court cannot treat a suit which does not include such a prayer as if it does so & demand court-fee from the plaintiff on a ''ad valorem basis'' under clause (c) of S. 7 (iv).

In the present case on the plaint allegations the question of cancellation does not arise because the word ''cancellation'' implies that the person suing should be an actual or constructive party to a valid and operative document. Prima facie third parties are not bound by a document of the description in question and are not obliged to sue for cancellation.

They can ignore the document and ask for the appropriate relief that they may be entitled to on that footing and pay the proper court-fee thereon without asking for cancellation: - Devaki Antarjanam and Others Vs. P. Mariyakutti Umma and Another, '' S.R.M. Ramanujam Pillai Vs. Ramaswami Pillai and Others, ; V. Rangaswami Aiyangar Vs. Ammayee Ammal and Others, ; Vedala Vallabhacharyulu and Another Vs. Vedala Rangacharyulu and Others, ; (Kondi Rana) Athmaram Chettiar Vs. (Kondi Mana) Saraswathi Ammal and Others, ); Paluri Venkatasiva Rao Vs. Bodapati Venkatanarasimha Satyanarayanamurthy and Others, Venkata Ramani Aiyar and Another Vs. M. Narayanaswami Aiyar and Others, ''Sankaran Nair v. Gopala Menon'', 30 Mad 18 (P); K. Kalianna Gounder Vs. Balasubramaniam and Others,

This is the conclusion arrived at by the learned District Munsif namely that the plaintiff not being a party to the above sale deed and the plaint allegations being to the effect that the said sale deed is a sham transaction, the plaintiff need not pray for cancellation of the document.

This Civil Revision Petition consequently devoid of substance is hereby dismissed.