A suit for partition based on the plaintiff's original title, ignoring a void transfer, does not require the plaintiff to pay ad valorem court fees.

( 1 ) THIS revi-sional application is at the instance of the plaintiff of T. S. No. 18 of 1967 of the 3rd Court of learned Subordinate Judge at Howrah. The suit is for partition upon a declaration that a document purported to be executed by the plaintiff in favour of defendants 3, 4 and 5, dated the 29th July, 1955 is fraudulent, collusive and void and not binding on the plaintiff. The specific allegations in regard to that document, we shall come to hereafter in some details. The suit was decreed in a preliminary form by the Ld. trial Judge. Being aggrieved, defendants 3, 4 and 5 preferred an appeal, being Title Appeal No. 88 of 1978 of the 2nd Court of the Ld. Additional District Judge, Howrah. The Ld. appellate Judge, instead of entering into the merits of the appeal made an order of remand under Order 41 Rule 25 of the Code. He framed an additional issue as follows:-- "is the suit so far as the Kha schedule property is concerned properly classified for valuation?" and remitted the suit to the Ld. trial Court for determination of the said issue with a direction to demand additional court-fees on such determination if necessary, with liberty to the plaintiff to suitably amend the prayer portion of the plaint.

( 2 ) IN making the order for remand, the 3d. appellate Judge has practically decided the issue although he has also said that any observations made by him would not fetter the discretion of the trial Judge in coming to his own conclusions. He felt inclined to hold that the suit as framed should have been valued according to Section 7 (iv) (c) of the Court-fees Act but instead of saying so in so many words he left the question open for consideration by the trial Court to enable the plaintiff to amenl the plaint, if need be, so that the suit may not fail for want of a proper relief claimed therein.

( 3 ) BEING aggrieved the plaintiff has moved this revisional application. The application has been heard on notice to defendants 3, 4 and 5 and on contest by them.

( 4 ) IN order to appreciate the point involved it is necessary at this stage to state the case of the plaintiff petitioner in regard to the impugned document dated the 29th July, 1955 in some details. Though the suit is basically for partition of several items of properties, the plaintiff has a positive case with regard to the document which relates to Kha schedule. Her case as made in the plaint is that she became a widow at a very young age, that she is an illiterate pardanashin village woman, that on her husband's death, her husband's elder brother Bhuban Chandra Rakshit pretending to be her well-wisher began to look after her properties, that she reposed great confidence in him and loved the contesting defendants 3/4 who are her nephews, as her own children, that they represented that they found it inconvenient to look after the properties of the plaintiff unless she executed a power-of-attorney in their favour to which the plaintiff agreed in good faith, that on such representation that a power of attorney was being executed they obtained a document from her without letting her know nor explaining to her the contents and nature of the document that subsequently in May 1967, the plaintiff came to know that the document taken from her was in reality a sale deed and not a power-of-attorney as was represented to her. It is then said that the defendants dbtained the document by practising fraud and by exercising undue in-fluence and coercion on her and without payment of any consideration whatsoever. On such allegation the plaintiff asked for partition of her share founded on her original title upon a declaration that the document is void, inoperative and not binding upon her.

( 5 ) THE suit was valued for purposes of jurisdiction at Rs. 8000/- but a fixed Court-fee of Rs. 15 for partition and Rs. 20/- for the declaration, was paid. The Ld. trial Court found the Court-fee paid to be sufficient. The Ld. appellate Judge appears to have tak