The market value of the property, not the value shown in the document, should be considered for court fee purposes under S.40 of Kerala Act 10 of 1960.

1. No error of jurisdiction. It seems to me clear that the proper way of reading the first of the following two clauses of sub-section (1) of S.40 of Kerala Act 10 of 1960: "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", is:

" If the whole decree or other document is sought to be cancelled, the amount for which the decree was passed or other document was executed, or the value of the property for which the decree was passed or other document was executed."

When the decree or other document is for property as distinguished from money it is the value (which in the absence of any indication to the contrary can mean only market value) of the property that counts, not the value as shown in the decree or other document. The second clause makes this clear it is impossible to misread this clause as the petitioner would have me misread the first clause and say that the value referred to is not the actual value of the property but the value shown in the document. Likewise, sub-section (2) of the section. The petitioner plaintiff who by these two suits seeks to set aside certain releases executed by herself of her rights in certain joint family properties must therefore pay court fee on the market value of the properties for which the deeds were executed, in other words, on the market value of her share of the properties. The court below was right in holding so, and, since it was apparent that the valuation given in the plaint was wrong, in issuing a commission for determining the value of the properties. It being for the plaintiff to satisfy the court on the question of the proper court fee to be paid, the commission is for the plaintiff's benefit whether she wants a commission or not (the consequence of non satisfaction being a rejection of the plaint), and the plaintiff was rightly asked to deposit the commissioner's fee.

2. It is pointed out that the court has directed the commissioner to inspect all the properties, and it is said that this involves unnecessary labour and expenses since the bulk (if not the whole) of the properties is in the hands of tenants, and it should be possible to value the landlord's interest, a share in which is the property concerned in the suits, from the rents payable under the several leases. The lower court will consider this aspect of the matter and issue revised instructions to the commissioner if necessary.

3. Subject to the above observation, I dismiss these petitions.

Dismissed.