ORDER
Balakrishna Ayyar, J.
1. Venkata Reddi and Bapu Reddi yere two brothers. The former died in 1917 leaving two widows of whom only one, viz., the first plaintiff is now surviving. Bapu Reddi died in 1936 leaving behind him two widows who are defendants 1 and 2. Venkata Reddi and Bapu Reddi had a sister named Chinnammal and the 3rd defendant is the son of this Chin-nammal. A few days after Bapu Reddi died defendants 1 and 2 executed a surrender deed of their entire interest in the estate in favour of 3rd defendant. It is alleged in the plaint that the mother of 3rd defendant also joined in the execution of the document. The plaint alleges that the law applicable is the Mitak-shara law as it prevails in Travancore and that according to that system of law on the death of Venkata Reddi and Bapu Reddi their estate vested in all the widows together.
The plaint further alleges that the surrender deed executed by defendants 1 and 2 and Chin-nammal is void and of no legal effect whatsoever. After the execution of the surrender deed various alienations were effected. The plaintiffs, therefore sued to recover possession of the entire estate from defendants 1 to 3 and their alienees. In view of the doubt whether the 1st plaintiff was entitled to recover the properties on her own sole behalf the prayer was cast in the alternative for recovery of possession either for herself alone or on behalf of herself and defendants 1 and 2. There was also a prayer for a declaration that the surrender deed executed on 5th October 1936 by defendants 1 and 2 in favour of 3rd defendant and the alienation made by defendants 1, 2 and 3 are null and void and of no effect whatsoever as against the plaintiffs. Court-fee was paid as in a suit for possession. The Court-fee Examiner took the view that the alternative prayer could not be granted without the cancellation of the surrender and other deeds and that in consequence the plaintiff should pay court-fee on the market value of the shares of the defendants in the suit properties. This objection was upheld by the learned Subordinate Judge of Tirunelveli and it is against this order that the present revision petition has been filed.
2. The law in this province is perfectly clear that a person who is not a party to a decree or a document is not bound to sue for its cancellation. At page 279 in ‘Rama-Swami v. Rangachariar’, ILR (1940) Mad 25J, the legal position has been thus explained.
“If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist.”
In fact it is logically impossible for a person who is not a p.arty to a document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth J. in the decision ‘Vellayya v. Kamaswami’, ILR (1940) Mad 73,
“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 only be done 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.”
In support of the decision of the learned Subordinate Judge it was argued: II the 1st plain-tiff had been asking for possession of the properties only on her own behalf these decisions would apply and she could not have been required to sue for cancellation of the surrender and other deeds. But when she prayed in the alternative for possession on behalf of herself and also on behalf of defendants 1, 2 and 3 she was asking for a relief which the Court could not grant without cancelling the settlement and subsequent deeds and that, therefore, she must pay court-fee as if she had explicitly and in plain terms asked for the cancellation of those documents. It seems to me that there is a fallacy in this reasoning.
As has been already explained the first plaintiff was not a party to any of those transactions and logically it is impossible for her to ask that documents to which she was a stranger should be cancelled.” What the plaintiff in effect says is this : By the arrangements which these third parties have entered into between themselves my rights are injured and I am damnified. I am entitled to get possession of those properties. If I cannot get them exclusively for myself and into my sole hands and I am required to take them along with defendants l and 2, well, give me such possession. I am not interested in the right and obligations as between defendants 1 and 2 and 3 ‘inter se’, or between them and their alienees. If as a result of granting my prayer the alienees suffer they must be left to their devices whether by way of suits for damages or otherwise. In my opinion the relief which the plaintiffs ask can be given without a cancellation of the documents. The cancellation of a document implies the wiping put of the transaction even as between the parties thereto, they being relegated to their ‘status quo ante’. If the prayer of the plaintiffs is granted without the documents being cancelled the alienors would be in the position of persons who have either broken their contract or are unable to carry out their obligations under the agreements. The document would not be wiped out.
3. Mr. Ramamurthi who tried to support the decision of the Court below referred to me to the decision in ‘Ramasubba v. Ayyalu’, ILR (1941) Mad 708. The facts in the case were : A grocer who had supplied goods brought a suit against a temple represented by its hereditary trustee. The suit was founded upon a promissory note and the promissory note had been executed in respect of goods supplied by the plaintiff. The plaintiff did not press the suit against the trustee against whom it was dismissed but he did obtain a decree against the temple. Three worshippers of the temple subsequently filed a suit in which they impugned the decree passed against the temple on the ground that the trustee had not been looking after the temple’s interests but allowed them to be sacrificed in return for his being exonerated. The Court held that though the second suit was ostensibly by three worshippers it was really by the temple and that as the previous decree was against the temple the subsequent suit must be treated as one for cancellation of the earlier decree in the earlier suit and court-fee must be paid accordingly. The learned Judges who decided that case stressed one circumstance which distinguishes that case from the present one, viz., that in that suit the plaintiffs, the worshippers, did not claim any personal benefit. This point mentioned by Mockett J. was also explained by Wadsworeh J. when he remarked : “That the plaintiffs did not ask for the protection of any interest of their own. By the simple device of putting both the temple and its present trustee into the array of defendants they Hope to disguise the fact that they are in substance praying on behalf of the temple for the cancellation of a decree obtained against the temple.” It will be noticed that in the present case plaintiff is seeking to protect her own interests and there is no reason to suspect at this stage that she is in any manner acting for or on behalf of persons who are parties to execute documents. The decision cited by Mr. Ramamurthi does not, therefore, apply to the facts of this case.
4. Plaintiffs were only bound to seek for a
declaration and pay court-fee on that basis.
That has been done. The objections taken by the
Court-fee Examiner and upheld by the learned
Subordinate Judge are in my opinion unsus
tainable. The revision petition is, therefore,
allowed with costs.