Arunachalathammal and others vs Sudalaimuthu Pillai and others

Kailasam, J.—This petition is filed on behalf of defendants 1 to 3 in O.S. No. 132 of 1967 against the order of the Subordinate Judge,

Tirunelvelt, holding that the plaintiffs should pay court fee for cancellation of a settlement dated 17th July 1947, executed by the first plaintiff and

the first defendant on the value of the document, namely, Rs. 3500. The plaintiffs filed the suit praying for various reliefs, but we are concerned only

with the prayer for cancellation of the document dated 17th July, 1947, a settlement deed executed by the first defendant in favour of the second

defendant. It was contended before the lower court by the defendants that the court fee was payable under S. 41 of the Madras Court fees and

Suits Valuation Act, Act XIV of 1955, and that the value of the subject matter of the suit should be deemed to be the value of the property, that is

the market value. This contention was not accepted and the court held that the value of the subject matter of the suit should be deemed to be the

amount for which the document was executed and therefore directed that court fee should be paid on the value of the document, namely, Rs.

3500.

S. 40(1) of the Court fees and Suits Valuation Act runs thus :-

In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create,

declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, moveable 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 pasted 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"".

It will be seen that the section provides for suits (1) relating to cancellation of a decree for money, (2) cancellation of a decree for other property

having a money value, and (3) cancellation of other document which purports or operates to create, declare, assign, limit or extinguish rights in

moveable or immovable property. The sub-section provides that fee shall be computed on the value of the subject-matter of the suit. Then it

proceeds to state how such value should be calculated. It provides that if the whole decree is sought to be cancelled, the amount or value of the

property for which the decree was passed should be taken into account. In the case of other document which purports or operates to create,

declare, assign, limit or extinguish rights in moveable or immovable property, the value shall be deemed to be the value of the property. It is not

clear at to whether the words ""the amount or value of the property for which the decree was passed"" are applicable to the cancellation of a

document which creates or declares rights in moveable or immovable property. In the case of suits for cancellation of ether document, apart from

suits for cancellation of a decree for money or other property, the above clause would be certainly applicable. This would mean that in the case of

suits for cancellation of other documents, the value of the subject matter of the suit shall be deemed to be the amount for which the document was

executed. It was submitted on behalf of the defendants that even in the case of a suit for cancellation of other documents, the value shall be deemed

to be the value of the property- But this contention would Ignore the effect of the words ""value of the property for which the decree was passed"".

Even conceding that the value of the property should be taken into account in suits for cancellation of other documents, there are two modes

provided for to compute the value of the subject matter of the suit, (1) the value of the property and (2) the amount for which the document was

executed.

Mr. Venngopalachari, Learned Counsel for the petitioners, submitted that this view is opposed to the one taken in the decision in Kolachala

Kutumba Sastri Vs. Lakkaraju Bala Tripura Sundaramma and Others, where the Full Bench held that in a suit for cancellation of a deed of

conveyance the valuation must be the valuation based on the market value of the property at the date of the plaint. The Full Bench was considering

the question as to the Court fee payable in a suit for cancellation of a deed of conveyance and for possession of the property covered by the deed.

The court held that the plaintiff should value his relief in accordance with the provisions of S. 7 (4)(A), and not according to S. 7 (V) of the old

Court feet Act, 1870. After referring to the difference of opinion between the various decisions, the Full Beach preferred the view taken in Ball

Reddi v. Khatifulal Sab 59 Mad. 240 followed in Venkatakrishniah v. Ali Sahib 48 L.W. 277. S. 7 (4-A) of the old Act is slightly differently

worded and it runs as follows :-

In a suit for cancellation of a decree for money or other property having a money value, or other document Hearing money or other property

having each value, according to 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 the value of the property for which the decree was passed or the

other document 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"".

It will be seen that the above section relates to a suit for cancellation of a decree for money or other property having a money value, or other

document securing money or other property having such value There was some doubt whether the third part of the section relating to other

document securing money would include sales. In Balireddi v Badul Sabar 59 Mad. 240 Venkatasubba Rao J. referring to his earlier decision in

Doraiswami Reddiar and Others Vs. Thangavelu Mudaliar and Others, held that sale deeds would come within the meaning of this section.

Whether this sub section includes sale deeds or need not detain us, as S. 40(1) of Madras Act XIV of 1955 is differently worded and there can be

no doubt that it brings within its purview sale deeds as it relates to other document''s which purports or operates to create, declare, assign, limit or

extinguish any right in moveable or immovable property, S. 7 (iv-A) of the old Act states that the value be deemed to be ""if the whole decree or

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

executed"". The same words are used in S. 40 (1) of the new Act. In construing this sub-clause in S. 7 (iv-A) of the old Act, the Full Bench pointed

out in the decision cited above that the suit within the meaning of the above section should be valued according to the value of the property and that

the value of the property, unless there is an indication to the contrary, must mean its market value. It may be noted that the court was considering

the value of the property and does not appear to have taken note of the words ""the other document executed"".

As already pointed out, S. 7(IV-A) of the old Act as well as S. 40(1) of the present Act deal with suits for cancellation of a decree for money,

cancellation of a decree for other property having a money value and suit for cancellation of other document. In the case of other documents, the

clause ""the amount or the value of the property for which the decree was passed"" cannot be held to be applicable and the only clause that can be

properly applied is only the value for which the document was executed. In the third category in S. 40(1), to the words ''other document, the

words ''which purports or operates to create, declare, assign, limit or extinguish'' rights in movable or immovable property are included. Obviously

in suits for cancellation of other documents referred to in S: 40(1) of the new Act the valuation should be the value of the other document executed.

In Balireddi v. Abdul Satar 59 Mad. 240 the court refers to the section which says that the value of the subject matter shall be deemed to be the

amount for which the document is executed. But it confined its discussion to the actual value of the property and held that it referred only to the

market value. This decision also does not refer to the valuation of the document on the basis of the amount for which the document is executed. On

a consideration of the section and decisions cited before me, I am of the view that the court fee payable for cancellation of a document under S.

40(1) of Act XIV of 1955 should be computed on the value of the document for which the document was executed. In this view, the decision of

the court below is correct, This civil revision petition is dismissed with costs.