1. The question involved in this Writ Petition is whether the plaintiff has to pay court fee after determining the market value under Section 7(2) of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as 'the Court Fees Act') or whether the market value should be computed in accordance with sub-section (3A) of Section 7 of the Court Fees Act.

2. The petitioner filed O.S.No.95 of 2006 on the file of the Court of the Subordinate Judge, Kozhikode against the respondents for a decree “declaring that on the strength of documents 1655/1970, 2248/1970 and 892/1972 of Chevayur S.R.O., late Smt. Soudamini Amma had not acquired any right, title and possession over the plaint schedule property, transfers as per the aforesaid documents were only Benami transaction and to the effect that plaintiff is the actual absolute owner and is in lawful possession of the same”. There is also a prayer for permanent prohibitory injunction. The market value of the plaint schedule properties was estimated at Rs.2,10,000/- and for the purpose of court fee, one-half of the market value was assessed at Rs.1,05,000/-. The court fee for the prayer for declaration was shown as payable under Section 25(b) of the Court Fees Act. The total court fee payable was shown in the plaint as Rs.9,000/-. The jurisdictional value was shown as Rs.2,11,000/- for the reliefs of declaration and injunction.

3. Three items of immovable properties are scheduled to the plaint. Item No.1 is admittedly a “nilam” having an extent of 7¾ cents. Item No.2 is described as a portion of “Panoli Kizhakkuveedu Parabu”, having an extent of 54 cents. Item No.3 of the plaint schedule is also having the same description as shown in item No.2. The extent of item No.3 is 9.25 cents.

4. The plaintiff is the father of the defendants. According to the plaintiff, Soudamini Amma died on 13.6.1979, while, according to the second defendant, she died on 13.6.1980. The plaint schedule properties were purchased as per registered documents of the year 1970 and 1972. According to the plaintiff, he purchased the property with his funds in the name of his wife Soudamini Amma. The averments in the plaint would disclose that there is a residential house in the plaint schedule property and it was originally let out to one Basheer and thereafter, let out to different persons from time to time. It is not clear from the averments in the plaint or in the schedule to the plaint as to whether the house is situated in item No.2 or item No.3. What is the rent fetched for the house is also not stated.

5. In the written statement filed by the second defendant, she contended that the properties were acquired by Soudamini Amma with her own funds and the funds provided by her family members. The second defendant contended that the plaintiff was having illicit relationship with another woman and Soudamini Amma was illtreated by the plaintiff. The second defendant also expressed her suspicion in the written statement that Soudamini Amma was murdered. In paragraph 13 of the written statement, the second defendant averred as follows:

“The plaint schedule property is valuable and the same is situated in a very important locality. The plaintiff may be directed to pay court fee on the market value fixed by the District Collector.”

6. A rejoinder was filed by the plaintiff, in which, he stated that his daughter, the second defendant, was responsible for the suicide of Soudamini Amma. It is also stated that after the death of Soudamini Amma, the plaintiff was compelled to contract a second marriage.

7. The second defendant filed an application to decide the issue of court fee as a preliminary issue. Additional issue No.6 framed in the suit is whether the suit is properly valued for the purpose of court fee.

8. The court below tried additional issue No.6 and delivered a “Judgment” dated 16.10.2009 holding that the valuation made in the plaint for the purpose of court fee is not correct. The court