M.R. Hariharan Nair, J.

Alleging that the sale deed in respect of the plaint A schedule property and two hypothecation deeds in respect of plaint B schedule property executed by the plaintiff were the result of fraud, O.S.1683/97 was filed before the II Additional Munsiff's Court, Thirvananthapuram by the present revision petitioner. The decree sought the following declaration.

"To pass a decree declaring that the sale deed No. 135/97, with respect to plaint A schedule and hypothecation deeds Nos.196/97 and 197/97 with respect to plaint B schedule of the Thirvananthapuram Sub Registrar's Office are void documents vitiated by fraud and misrepresentation and further that those documents are neither binding on the plaint A and B schedules nor the plaintiff in any manner and to pass a decree of consequential prohibitory injunction restraining the defendants from forcibly dispossessing her from the plaint A schedule and the building thereon otherwise than by due process of law".

2. The defendants, who entered appearance, contended that the court fee paid was insufficient and that actually setting aside of the two documents is required for which court fee is payable under S.40 of the Court Fees Act and not under S.25(b). The question was considered as a preliminary point and as per the impugned order, the trial court accepted the defendants' contention and directed the plaintiff to pay court fee under S.40(1) of the Kerala Court Fees and Suits Valuation Act.

3. On the day the suit was taken up for payment of Court fee as above, the plaintiff submitted before the trial court that the order directing payment of court fees was under challenge before this Court. However, the plaintiff was found absent on a later day and no stay order, in fact, reached the trial court. In the circumstances, the trial court passed an order on 2.11.1998 rejecting the plaint. It is this order that is the subject matter of C.R.P. No. 2588/98.

4. During hearing today, the learned counsel for the petitioner placed reliance on the decision in Kumaran v. Chandran (1985 KLT SN 43 -Case No. 69) in support of the contention that in a suit for declaration that a document is null and void, the plaintiff need pay court fee only under S.25(b). According to the learned counsel for the respondents, the said decision has no application to the facts of this case. A perusal of the aforesaid decision shows that the plaintiff had contended in that suit that the document executed by one Achuthan (3rd party) was not genuine and void. The court found that if the averments contained in the plaint that the purported execution of the document was false; that the documents are not true and genuine and that Achuthan the purported executant was never a party to the documents are proved, there will be no document in the eye of law and that in that perspective a suit for declaration that the document is void was maintainable in which case the court fee payable was only under S.25(b) and not under S.40 of the Act. The position here is different in so far as the disputed documents, admittedly stand in the name of the plaintiff and the signatures therein are admitted.

5. Karuna Kuries & Finance v. Kunju Vareed & Ors. (1998 (2) KLJ 748) relied on by the petitioner was a case where the suit was filed seeking relief of declaration that a document was invalid and for cancellation of two documents. The suit was under S.53 of the Transfer of Property Act. Along with an application for amendment of the plaint to change the prayer from setting aside the two fraudulent documents as one to declare that the documents are fraudulent and created with intent to defeat and delay creditors, the petitioners also sought change of the valuation as one under S.25(d)(ii) of the Kerala Court Fees And Suits Valuation Act. The Court found that if the prayer actually amounts to setting aside the document, then the court fee will have to be paid under S.40 of the Act and that, that section would come into pla