Valuation of property to be made u/s 40(1).

Singaravelu, J.

1. The plaintiff in the suit is the revision petitioner herein. The /plaintiff filed the suit against the State of Tamil Nadu and two others for a declaration that the revenue sale held by the Revenue Authorities on 9.10.1973 is null and void. The plaintiff valued the suit for the purpose of court-fee and jurisdiction under Section 25(d) of the Court-Fees Act. A check-slip was issued by the Court-fee Examiner pointing out that the suit should be valued and court-fee paid under Section 40(1) of the Court-Fees Act on the market value of the property. There was an enquiry and the trial Court found that the suit should be valued under Section 40(1) of the Court-Fees Act. A revision was preferred against that order and the same was dismissed. Later, the trial Court held that in this suit, the plaintiff should value the subject-matter at its market value. The Plaintif is aggrieved by this order and has come on revision,

2. I have heard Learned Counsel on both sides and perused the papers. The short point that arises for decision is whether under Section 40(1) of the Tamil Nadu Court-Fees and Suits Valuation Act, the court-fee is payable on the market value or on the value of the property for which the document in question was executed.

3. It is common ground that the revenue sale was for a sum of Rs. 6,000. The trial Court directed the plaintiff to pay court-fee at the market value of Rs. 50,000. Section 40(1) of the Court-Fees Act recites that in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create any right, title or interest, fee shall be computed on the value of the subject-matter of the suit and such value shall be deemed to be the amount or the value of the property for which the document was executed.

4. Learned Counsel for the petitioner cited a decision reported in Andalam mal v. B. Kanniaht wherein the learned Judge has held that Sec40(1) of the Court-Fees Act refers to "the amount or value of the property, for which the document was executed." It is then observed that the basis for the purpose of valuation shall be the amount or value mentioned in the document sought to be cancelled and that there is no warrant for ignoring the plain language of the section and holding that the value shall be the market value of the property.

5. As against this, Learned Counsel for the respondents cited the following decisions In their favour. The first case cited is reported in Krishna Nair v. Rugmoni Ammal (1976) 1 M.L.J. 9 : A.I.R. 1976 Mad. 208 : 89 L.W. 370. There was a distinguishing feature in this case - 'to use the words of the learned Judge - viz. the plaintiffs therein were not the same parties who participated in the earlier proceedings. Therefore, relying on this distinguishing feature, the learned Judge came to the conclusion that the property should be valued under Section 40(1) of the Court-Fees Act and not under Section 25(b) of the Act. The facts of the case on hand do not apply to the facts of the present case.

6. The next case cited is reported in T.S. Rajam Ammal v. V.N. Swaminathan. That was a case, where the plaintifs suit for a declaration that the sale deed in question was not binding on the plaintiff and for recovery of the suit properties. The plaint properties were -valued by the plaintiff in that suit on the market value as on the date of the plaint and not on the consideration mentioned in the sale deeds. The defendants preferred* an appeal and sought to value the subject matter of the suit not on the basis of the market value but on the basis of the consideration recited in the document cancelled by the trial Court. In that context, Ismail, J. (as he then was) held that the appeal has to be preferred on the market value of the items as on the date of the plaint. All the previous cases on the subject including the Full Bench decision reported in Kutumba Sastri v. Balatripura Sundaramma (1939) 1 M.L.J. 702 :