ORDER :-

ISMAIL, J.

O. S. No. 51 of 1969 on the file of the court of the Subordinate Judge. Nagapattinam, was instituted for a declaration that the sale deed dated 20-11-1969 executed by one Subramania Pillai in favour of the first defendant and the sale deed dated 20-1-1962 executed by Subramania Pillai in favour of the fourth defendant represented by the third defendant, were not binding on the plaintiff and for recovery of the suit Items 1 to 13 from the 1st defendant and Item 14 from the fifth defendant and Items 15 to 19 from the second defendant. The plaint properties were valued by the plaintiff in the suit in the trial court on the market value as on the date of the plaint and not on the consideration mentioned in the sale deeds. It is against the decree passed in that suit, the second defendant in so far as Items 15 to 19 are concerned had purported to file an appeal on the file of this court. In this appeal, he sought to value the subject-matter of the appeal not on the basis of the market value of the items concerned, but on the basis of the consideration recited in the document cancelled by the trial court. The office pointed out that the appeal has to be valued on the basis of the market value of the items in question and not on the basis of the consideration recited in the document. The learned counsel for the proposed appellant relied on a decision of Maharajan, J., in Andalammal v. Kanniah, 1971-2 Mad LJ 205 : (AIR 1972 Mad 5) and contended that the appeal has to be valued only with reference to the consideration recited in the sale deed and not with reference to the market value of the property involved. Since there is a decision of Sadasivam, J., in Sengoda Nadar v. Doraiswami AIR 1971 Mad 380 holding that the subject-matter has to be valued with reference to the market value of the properties involved, the matter has been placed before the Court.

2. I may immediately point out one thing viz., there is the Full Bench decision of this court in Kutumba Sastri v. Balatripura Sundaramma 1939-1 Mad LJ 702 : (AIR 1939 Mad 462) (FB) dealing with the corresponding provision in the earlier Act. According to that decision, the appeal has to be valued with reference to the market value of the properties involved and not with reference to the consideration recited in the document. Sadasivam, J., in the judgement referred to above, has referred to and followed the Full Bench decision, while Maharajan, J., has not referred to the Full Bench lodgment at all. It is in view of this feature alone the matter has come before me. Before I deal with the Full Bench judgement and the statutory language on which that decision was rested I shall refer to a few observations of Maharajan, J. The learned Judge has stated that, "I think it fruitless to refer to the conflicting authorities cited at the Bar in support of either view; firstly because the ratio decidendi in each of the authorities cited must be confined to the facts of that particular case, and secondly because most of the authorities were concerned with interpreting the corresponding section in the earlier Act. which in certain respects was worded differently from Section 40 of the Madras Court-fee and Suits Valuation Act, 1955." After making the above observation the learned Judge extracted S.40 of the Madras Court-fees and Suits Valuation Act 1955 and on his interpretation of that section he held that the court-fee is payable only on the consideration recited in the document and not on the market value of the property involved I may draw attention to one or two features with reference to the observation of Maharajan, J., extracted above. One is, not one decision of the court has beer actually referred to by the learned Judge in his judgement, though the learned Judge stated that it was fruitless to refer to those authentic. Secondly, it is rather difficult to understand how a ratio deci

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