Earlier deed of partition being void cannot be considered.

The revision petitioner is the plaintiff in O.S.No.1 19 of 1995 on the file of the Sub Court, Tindivanam.

2. The averments in the plaint are briefly as follows. The first defendant is the father and defendants 2 and 3 are the brothers of the plaintiff. They constitute an undivided Hindu joint family, which owned the suit properties. Plaintiff and defendants are in joint possession and enjoyment of the same. The first defendant was acting as the manager of the joint family and managing the properties on behalf of his sons, he has been paying kist and in possession of the property for himself and on behalf of all the plaintiff and defendants 2 and 3. All of them are entitled to l/4th share in the suit properties. The plaintiff is a cardiac patient. He is both weak physically and mentally! He cannot attend to his normal life and was depending upon his father and brothers always. The defendants represented to the plaintiff that the creditors are pressing them for payment of the debts incurred for celebrating the marriages of the first defendant’s daughters Jayalakshmi and Kalyani and for that they had to execute a mortgage of the suit properties and obtained his signatures. Out of confidence, he had with the defendants, the plaintiff signed the documents without following it. Even thereafter, the plaintiff and defendants are living jointly as before. The defendants have cooked up and fabricated a partition deed with false and frivolous recitals in it and have in it, obtained the signature of the plaintiff under the guise of executing a mortgage deed. The plaintiff therefore ignores the same, the partition which has been fabricated is null and void since it has been obtained using undue influence and playing fraud and misrepresentation, is not binding on the plaintiff. The plaintiff has now filed the suit for partition and separate possession of his half share and for mesne profits.

3. The plaintiff has paid court-fee under Sec.37(2) of the Court-Fees Act, valuing the suit properties at Rs.37,625.

4. A check-slip has been issued to the plaintiff to the effect that the market value of the suit property is given as Rs. 1,50,500 and the plaintiff has to value the relief on this amount for cancellation of the earlier partition deed dated 12. 1987 as required under Sec.37(1) of the Court-Fees Act.

5. The plaintiff filed the objection to the check slip contending that the Court-fee paid under Sec.37(2) of the Court-Fees Act, is correct and the suit need not be valued under Sec.37(4) of the Court-Fees Act, since the documents obtained by the defendant is void under the principles non estem factum and it could not be set aside.

6. The learned Subordinate Judge held an enquiry and has passed the impugned order directing the plaintiff to pay the deficit Court-fee of Rs.1 1,288 under Sec.40 of the Court-Fees Act on or before 13. 1996.

7. Aggrieved over the same, the plaintiff has come forward with this revision.

8. The Check Slip issued by the Court-Fee Examiner is to the effect that the plaintiff has stated that he had signed the document without following it and that he did not have the power of discrimination as he was ailing and even thereafter he is living and enjoying the property along with the defendants as a whole. It is also stated that the plaintiff has accepted his signature in the partition deed and he being a party to the earlier partition deed, he cannot seek partition without cancelling the earlier partition deed and Court-fee for cancellation is therefore, payable under Sec.37(4) of the Court-Fees Act. From the Check Slip issued, it is evident that the Court ‘Fee Examiner has called upon the plaintiff to value the prayer for partition after cancelling the earlier partition deed in which the plaintiff had signed. The learned Sub Judge, Tindivanam in his order has referred to Sec.37(2) of the Court-Fees Act and has stated that he is of the considered view that the plaintiff cannot take shelter under Sec.37(2) of