Koshy, J.

Whether market value of the property should be taken for calculating court fee when a suit is filed to set aside a gift deed is the question referred to the Division Bench by the learned Single Judge. Section 40 of the Kerala Court Fees and Suits Valuation Act (in short ‘the Act’) deals with valuation of suits in such cases. The court below in the impugned order, following earlier Division Bench decisions of this court held that when a suit is filed to set aside a gift deed as one obtained by fraud and misappropriation, court fee is to be paid on the basis of the real market value on the date of filing of the suit as contemplated under Section 7(3A) of the Act. The above was challenged by the writ petitioners under Article 227 of the Constitution of India contending that in the earlier Division Bench decisions, Section 40 was not correctly interpreted. In Krishnan Damodaran v. Padmanabhan Parvathy (1972 KLT 774), Appikunju v. Meeran Pillai (1964 KLT 895), Vasudeva Rao v. Hari Menon (1981 KLT 763) and Jamy Kuriakose v. Jomon Kuriakose (2003 (1) KLT 411) this court had held that, in a suit filed for setting aside a document, the court fee is to be paid on the market value of the property covered by the document on the date of filing of the suit. It was also argued that the provisions contained in Section 40 are self contained and the court cannot look into the provisions contained in Section 7 for computing the court fee payable under Section 40 of the Act. Learned Single Judge was of the opinion that the above point was not considered in the earlier decisions and observed as follows:

“In view of the wordings in Section 40 of the Act, whether in a suit for setting aside a document, the plaintiff can be compelled to value the suit as provided under Section 7(3A) of the Court Fees Act is a matter to be considered by a large Bench.”

2. Before answering the question, we may quote the relevant sections. Section 40 reads as follows:

“Suits for cancellation of decree, etc.-

(1) In a suit for cancellation of 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, movable 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 passed 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.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item or property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.

Explanation: A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.

Section 7 of the Court Fees and Suits Valuation Act reads as follows:

“Determination of market value.- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.

(2) xxx xxx xxx

(3) xxx xxx xxx

(3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch at the time of the institution of the Suit and where the plaintiff estimates such market value it shall not be less than the minimum value of such land fixed by the District Collector under Section 28A of the Kerala Stamp Act, 1959.”

(4) xxx xxx xxx.”

Section 7 of the Act though deals with determination of market value, it starts with a saving clause. A re