A plaintiff seeking cancellation of a compromise decree under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 must pay court fees for the cancellation before seeking other reliefs.

ORDER:- The plaintiff in O. S. 138 of 1972 on the file of the Court of the Subordinate Judge, Erode, who has been called upon to pay additional court-fee of Rs. 4499-50, has preferred this revision petition to canvass the propriety of the order.

2. With regard to the properties of one Rangaswami Naidu, there was a partition suit in O.S. 134 of 1969 to which the members of the family of Rangaswami Naidu were parties. Rangaswami Naidu had two sons of whom one Venkataswami Naidu was the second. In the partition suit, not only Venkataswami Naidu, but his son, the 9th defendant in present suit, were made parties. Ultimately, the suit was compromised on 9-7-1969 and a compromise decree was passed in the suit under the terms of which, the A schedule properties in the present suit were given to Venkataswami and his minor son, and in addition, the B Schedule property herein was given to the minor to be enjoyed by him absolutely. In the present suit, the plaintiff who is the widow of Rangaswami Naidu, claims that subsequent to the compromise decree she came to know through her son Venkataswami that he had already been married to one Janaki and as such Venkataswami's marriage with the tenth defendant Krishnaveni who is the mother of the minor ninth defendant was a void marriage. The further case of the plaintiff is that the compromise in the earlier suit proceeded on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and the ninth defendant an off-spring of lawful wedlock, and was therefore entitled to a share in the joint family properties which were sought to be partitioned in O.S. 134 of 1969. Venkataswami died subsequent to compromise decree and has left behind him his wife, Krishnaveni, the tenth defendant herein, whose valid marriage with Venkataswami is impugned, and a minar son and a daughter who are respectively the ninth and the eleventh defendants in the present suit. According to the plaintiff, the ninth and eleventh defendants are only the illegitimate children of Venkataswami and will, therefore, have no rights whatever in the A and B Schedule properties and are bound to redeliver those properties in their possession to the plaintiff and the other heirs of Rangaswami Naidu. The prayer in the suit is as follows-

"The plaintiff, therefore, prays that the court may be pleased to pass a decree- (a) declaring that the plaintiff is entitled to items 1 and 2 in the B schedule to the plaint and issuing a permanent injunction restraining defendants 9 to 11 from disturbing or interfering with he plaintiff's possession of the same or from collecting the rents for the said items; (b) directing that the A schedule properties be divided into 18 shares by metes and bounds and ordering delivery of 10 such shares to the plaintiffs; (c) directing items 3 to 6 in B schedule be divided into 9 shares and ordering delivery of one such share to the plaintiff; (d) Ordering defendants 9 to 11 to pay the costs of the suit; (e) granting the plaintiff such other and further reliefs as may be just and necessary?"

In accordance with her prayers in the suit, the plaintiff valued the relief of declaration of title and permanent injunction with reference to items 1 and 2 in the B schedule under Section 25 (b) of the Court Fees Act. As regards partition of one half of the A schedule properties and possession, she valued the relief under Section 37 (1) of the Court Fees Act and paid court-fee on half of the market value. Lastly, she valued her one-ninth share in the several items of suit properties under Section 37 (1) of the Court Fees Act and paid court-fee thereon.

3. The Court-fee Examiner issued a check slip raising an objection that, since the plaintiff herself was a party to the compromise decree in the earlier suit, she should get the decree cancelled under Section 40 of the Court Fees Act before further reliefs of declaration and partition in respect of the properties covered by that decree were sought for. He a