Parvathavarthini @ Kuppammal @ Raji and Sivakumar vs Heerachand Surana rep. By Power of Attorney A. Sivakumar

S. Ashok Kumar, J.—This above Civil Revision Petitions are filed by the defendants against the fair and decretal order of the learned III

Additional District Munsif, Pudhucherry, dated 1.6.2005 in I.A. Nos. 1256, 272, 1311, 1447 of 2004 and 3803/2003, 1221/04, 3805/03, 1222,

1327, 1218 of 2004 and 3804/03 and 2226 of 2004 in the respective suits by which the learned District Munsif refused to take up the

jurisdictional issue as the preliminary issue.

The revision petitioners herein are the defendants in the respective suits. The plaintiff filed the suits O.S.No: 630, 714, 590 of 2002 and 109,

629 and 108 of 2003 to declare the sales vide sale deeds dated 20.11.1998, 3.9.1997, 24.12.1997, 5.10.1998, 15.9.1997 and 27.1.1998

respectively registered in the District Registrar Office, Pudhucherry as null and void.

According to the plaintiff, the suit property originally belonged to Rajamannar Chettiar and the same devolved on the defendants 1 and 2 as his

legal heirs on the intestate death of Rajamannar Chettiar. The defendants approached the plaintiff and made an offer to sell the property for a sale

consideration of Rs. 75 lakhs and the plaintiff also paid an advance of Rs. 5 lakhs. They entered into a sale agreement on 23.10.1994 to execute

the sale deed after the conclusion of the pending litigation before this Court in A.S. No. 320 of 1993. According to the plaintiff, even in the CMP.

No. 5937 of 1993, in the said Appeal Suit, this Court granted an interim injunction restraining the defendants from alienating the suit property to

any other person pending disposal of the Appeal Suit. However, inspite of the same, the defendants through the third defendant executed a sale

deed in favour of the fourth defendant on 20.11.1998, 3.9.1997, 24.12.1997, 5.10.1998, 15.9.1997 and 27.1.1998 in respect of a portion of the

suit property. Therefore the plaintiff, after sending lawyer''s notice instituted the respective suits of the relief as stated above. While so, the plaintiff

has valued the suit u/s 25(d) of the Pondicherry Court Fees and Suit Valuation Act.

The second defendant filed the respective Interlocutory Applications challenging the valuation of the suit u/s 25(d) of the said Act, as according

to him, the sale deeds which are sought to be declared as null and void, the proper court fees to be paid is on the market value of the property

mentioned in the respective sale deeds. If that case, the pecuniary jurisdiction of the trial court exceeds and the suits have to be tried only by the

Subordinate Court. Therefore the defendant prayed to take up the issue whether the suit has been properly valued and necessary court fee has

been paid or the reliefs claimed as per the averments in the plaint and on the basis on which the claim is made, to consider and decide whether the

said court has pecuniary jurisdiction to try the suit. It is the defendants case that the plaintiff has to file a suit for specific performance and has

invoked the wrong provision of law to avoid the payment of court fee.

The plaintiff repelled the contention of the defendants saying that the remedy for specific performance will arise only after disposal of the A.S.

No. 320 of 1993 pending before the High Court and further the relief sought for is not for cancellation of sale deed since he is not a party to the

sale deeds. According to the plaintiff, since the defendants have executed the sale deeds in violation of the injunction order passed by the court, the

plaintiff has filed the suits for declaring the said sale deeds as null and void and therefore Section 25(d) of the Act alone attracts in respect of

payment of court fee. Further even to decide the the preliminary issue of court fees, the same requires elaborate evidence on both sides and

therefore the same cannot be decided preliminarily.

The learned III Additional District Munsif, Pudhucherry, on a consideration of the pleadings and the submissions of the respective counsel,

dismissed the said application holding that whether the plaintiff is entitled to the relief claimed in the plaints or of any other relief can be determined

only after a full-fledged trial since the contention raised by the defendants seems to be a mixed question law and fact. Aggrieved of the same, the

present revisions are filed.

Learned Counsel for the revision petitioner contended that the even the question of pecuniary jurisdiction has been raised in the written

statements itself, which is a a pure question of law, the learned District Munsif ought to have decided the issue preliminarily. Further, the relief

claimed being for declaration as null and void of the sale deeds, the plaintiff ought to have either valued the suit on the market value of the suit

property or the amount or value of the property for which the document was executed as provided u/s 40 of the Court Fees Act as declaration has

been asked to declare the sale deeds as null and void which create rights and title in the suit property on the third parties and as such the suits

ought to have been valued on the market value of the suit property, particularly when the plaintiff agreed purchase the suit property for Rs. 75

lakhs. Further, as rightly contended by the learned Counsel for the revision petitioner, the defendant can raise disputes regarding valuation of the

suit property or court fee paid by the plaintiff and all questions arising on such pleas shall be heard as preliminary issue and no discretion is left with

the court and the court has to determine preliminary issue on the basis of the allegations made in the plaint and materials contained in the plaint and

the court upon decision on such plea give direction to plaintiff to amend the plaint and pay appropriate court fee and in default of compliance of by

the plaintiff reject the plaint and pass appropriate orders and the court should permit the parties to adduce evidence if preliminary issues is taken up

for hearing and substance of plaint as a whole should be looked into and not its form or prayer, as has been held by this Court in the decision

reported in 2002 (2) CTC 513. Therefore, the trial court erred in taking up the preliminary issue relating to the very jurisdiction to try the said suits.

In this respect, in 1959 MLJ 355, (Gnanambal Ammal v. Kannappa Pillai and Ors.) this Court held as follows:

In order to determine the class under which a suit falls for purposes 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 n which the relief is cast. A plaintiff cannot be allowed to evade the payment of proper

fee or undervalue the suit for purposes of jurisdiction by omitting to ask for a relief when the success of suit depends on the relief being granted to

him. The basis of determination of court fee is, of course, the suit as laid in the plaint and not the contentions in the defendant''s written statement.

But when, in the course of the trial, it appears that it is the intention of the plaintiff to interpret his plaint in one way for purposes of court fee and in

another way during the trial, it is for the court to construe the plaint and determine what it really asks for, taking into consideration the substance

and not merely the form of the relief prayed for.

Where in spite of profuse allegations in the body of the plaint about the deeds being sham and nominal, the relief asked for cannot be granted

without the deeds being cancelled or set aside, the suit must be held to be in substance one for cancellation or setting aside of the deeds which are

an obstacle to the plaintiff''s claim and, therefore, suit would fall u/s 40 of the Madras Act XIX of 1955; and u/s 53 of the Act, the value for court

fee would determine the value for purposes of jurisdiction also.

In Mrs. J. Kasthuri and Others Vs. Seth Ghanshamdas Vonsimal Deva Bank, Justice M.M. Ismail, as he then was, observed as follows:

There can be no doubt whatever that for the purpose of determining the court fee payable it is the substance of the relief that a plaintiff prays for

that has to be taken into account and not the technical form of the prayer. If it is to be otherwise, mere astuteness and ingenuity of the person

drafting the plaint will have the effect of not only camouflaging and disguising the real relief which a plaintiff claims in a suit but also nullifying and

defeating the provisions of law dealing with the payment of court fee based on the nature of the relief litigants seek in a court of law.

In Shamsher Singh v. Rajinder Prashad and Ors. reported in 1974 SC 270, the Hon''ble Supreme Court held that mere astuteness in drafting

the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.

From the decisions referred to above, it is clear that for the purpose of determining the court fee, it is the substance of the relief that the plaintiff

prays for has to be taken into account and not the technical form of prayer as held by the Hon''ble Supreme Court and this Court and mere

astuteness and ingenuity of the person drafting the plaint will have the effect of not only camouflaging and disguising the real relief which a plaintiff

claims in a suit but also nullifying and defeating the provisions of law dealing with the payment of court fee based on the nature of the relief litigants

seek in a court of law.

The court fee is to be decided not by the mere reliefs found in the prayer column, but by the whole of the plaint averments. What is the

requirement and relief sought for by the plaintiff has to be seen by reading the whole plaint and not by seeing the reliefs column alone. Even if there

is a hidden relief, which is not mentioned in the prayer and the same is covered by a veil and not invincible, it is the duty of the court to lift or pierce

through the veil and find out the real substance of the relief which the plaintiff prays for. As far as this case is concerned, even though the plaintiff

and the defendants have entered into a sale agreement on 23.10.1994, and while the interim injunction restraining the defendants from alienating the

property to any third parties is subsisting as ordered by this Court in the pending Appeal Suit, the defendants have executed various sale deeds in

favour of third parties. Therefore, the plaintiff not being a party to the said sale deeds, does not want cancellation of the sale deeds, but seeks only

declaration to declare the same as null and void.

In the above circumstances, it has to be decided whether the plaintiff is required to be value the suits u/s 25(d) as contended by him or u/s 40

as contended by the defendants or under any other provision of the Court Fees Act. In this respect, it is relevant to cite the following decision

rendered by this Court as well as by the Apex Court.

In 1976 (2) MLJ 9 (Krihna Nair v. Rugmoni Ammal) wherein this Court held as follows:

Where the plaintiffs effectively seek to set aside a judgment of the High Court relating to immovable property, it is obligatory that they should value

the subject mater of the suit as on the date when the fresh suit was filed by the parties who were not the same parties who agitated in the earlier

proceedings and the suit has to be valued u/s 40(1) of the Tamil Nadu Court Fees Act giving the market value of the properties covered by the

judgment of the High Court in the earlier suit as on the date of plaint.

In Raja v. Radh Ammal 1988 (1) LW 82, M.N. Chandurkar, Chief Justice held as follows:

In a suit for declaration that decree in an earlier suit for partition is null and void and not binding on plaintiffs-plea that they were minors and that the

guardian appointment in the earlier suit was irregular and illegal as the interest of the guardian was adverse to that of the minors and that the

guardian was negligent and that the minors could therefore be not treated as parties to the suit, then the court fee is payable u/s 40 and not u/s

25(d).

However, in Chellakannu v. Kolanji 2005 (3) MLJ 289 this Court held that when plaintiff himself is a party to the sale deed, he must first

obtain the cancellation of the sale deeds, irrespective of the fact whether cancellation is sought for or not, the suit is one for cancellation and the

plaintiff cannot seek any further relief without setting aside the sale deeds and the court fees must be paid u/s 40 of the Suits Act.

On the contrary, in the decision in Ponnammal alias Guruvammal and Others Vs. Kanthammal and Others, wherein the Full Bench decision of

this Court in AIR 1940 Mad 113 has been followed is to the effect that a person who is not a party to a decree or a document is not bound to sue

for its cancellation. In fact, it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation. It is also

held that the relief which the plaintiff asked could be given without a cancellation of the document and therefore she was not required to pay court

fee for the cancellation of the document.

So also in AIR 1956 Mad 179 (In re Thirupathiammal, this Court held that the plaintiff not being a party to the sale deed and the plaint

allegations being to the effect that the sale deed is a sham transaction, the plaintiff need not pray for cancellation of the 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 cancellation.

In 1995 (2) LW. 880 (Kasthuri Radhakrishnan and 2 Ors. v. A. Radhakrishnan and 4 Ors.) this Court held that in a suit for declaration that

the sale agreement was created fraudulently regarding the suit property and it is not valid and binding on the plaintiff and also for permanent

injunction etc., the valuation u/s 25(d) is sufficient and the direction by the trial court to pay court fee u/s 40 of the Act was set aside.

In K. Sundarmoorthy Mudaliar v. Manickammal and Anr. 1964 MLJ 152 this Court held that where the purchaser of a property files a suit

only for a declaration that an equitable mortgage created by his vendor was not binding on him, he is entitled to pay court fee u/s 25(d) and is not

liable to pay court fee u/s 40 of the Madras Court Fees Act for cancellation of the equitable mortgage.

In a recent judgement in Siddha Construction (P) Ltd. v. M. Shanmugham 2006 (5) CTC 255 this Court again reiterated that a suit for

declaration that particular sale deed is null and void could be valued u/s 25(d) of Tamil Nadu Court Fees and Suit Valuation Act if on plaint

averments it is found that plaintiff was not party to such sale deed i.e., neither he executed the sale deed, nor he received any consideration.

In 2001 (4) CTC 764 (Kamaleshwar Kishore Singh v. Paras Nath Singh and Ors.) the Hon''ble Supreme Court held that court fee has to be

paid based on the plaint as framed and not as it ought to have been framed, unless while drafting plaint plaintiff had attempted at evading payment

of court fee by his astuteness in drafting. If there is provision of law requiring the plaintiff to value the suit in a manner other than the one plaintiff had

adopted then the court fee has to be paid as required by law. For the purpose of determination of court fee payable on plaint, the court should

begin with presumption that averments in the plaint are correct and arbitrary valuation of the suit property to evade payment of court fee or for

conferring jurisdiction on court which it does not have or for depriving jurisdiction of court which it would otherwise have, can also be interfered

with by the court. The Supreme Court also held that it is the substance of relief and not the form which will be determinative of valuation and for

payment of court the defence taken in written statement may not be relevant.

From the above decisions it is clear that if the plaintiffs are not parties to the sale deed which is being attacked as sham and nominal or on any

other ground, then a suit for declaration without asking for the relief of cancellation of the said deed is maintainable and the suit property can be

valued u/s 25(d) of the Act and it is not necessary to value the suit property u/s 40(1) of the Act. Admittedly, in the present case the plaintiff has

sought for the relief of declaration and there is no prayer for cancellation of the sale deed. Further, the plaintiff is not parties to the said sale deed.

As per the ratio laid down in the abovesaid decisions, only a party to the document or decree which is challenged alone need to pay the court fee

as u/s 40(1) of the Act and a third party to the document is not entitled to value the suit property u/s 40(1) of the Act. If a third party to the

document is required to pay the court fees as per Section 40(1) i.e., as per the market value of the suit property, then it will result in disastrous

consequences. Section 25(a) or (b) or (c) also would not attract to the present case since the plaintiff did not ask for the relief of possession or

consequential injunction or any exclusive right of use. Further a reading of the the averments in the plaint, would show that no astuteness in drafting

the plaint can be attributed to the plaintiff so as to evade proper court fee. Therefore, in the present case the plaintiff is required to pay the court fee

only u/s 25(d)of the Pondicherry Court Fees and Suit Valuation Act.

In the result, all the CRPs are allowed holding that the trial court has erred in taking up and deciding jurisdictional issue on the basis of the

valuation of the court fee as a preliminary issue. Consequently, the impugned orders passed in the respective Interlocutory Applications are set

aside and the trial court is directed to proceed with the suits which have been valued u/s 25(d) of the Court Fees Act.

Consequently, connected CMPs are closed.