When party to document is challenging the same, suit property ought to have been valued at the market rate on the date of plaint.

As against the dismissal of the Interlocutory Application praying to decide the court fee issue as the first and primary issue by framing necessary additional issue in that regard, the first defendant has filed the present revision.

2. According to the revision petitioner/defendant, the suit document has been valued by the plaintiff at Rs.1,00,500/= and a court fee of Rs.7538.50 has been paid. But, as to the actual market value of the property, the court has failed to frame necessary additional issue. Hence the I.A., for framing necessary issue and to decide the same as the first issue.

3. The respondent/plaintiff contested the said I.A., contending that believing the defendants who are none other than his son and daughter he has signed in the settlement deed, but later he found that the settlement has been prepared with a mala fide intention and hence the suit has been filed for declaring that the settlement deed is null and void. The suit property has been correctly valued at Rs.1,00,500/= and necessary court fee has been paid. The suit is at the stage of trial and the I.A., is only filed to protract the early disposal of the suit.

4. The learned trial Judge after considering the pleadings and submissions made by the learned counsel, dismissed the Interlocutory Application. Hence this revision by the first defendant.

5. The learned counsel appearing for the revision petitioner contended that though necessary pleading has been raised as to the improper valuation of the suit property in the written statement by the defendant, yet the trial court has not framed an issue in that regard and even the I.A., filed by the defendant has been dismissed on a misconception of law. According to the learned counsel for the revision petitioner, as per the Section 40 of Court Fees Act, the suit property ought to have been valued on the market value and not on the value set forth in the document.

6. In 1973 (2) MLJ 331 (Kuppammal and others Vs. Natarajan and others) a Division Bench of this Court held that in a suit to set aside the final decree in a partition suit, the court fee should be paid on the basis of the market value.

7. In 1973 (2) MLJ 334 (Rajam Ammal Vs. Swaminathan and others) M.M.Ismail,J., as he then was, held that in a suit for declaration of certain sale deeds as not binding and for recovery of possession of items involved, the valuation of the subject matter and payment of court fee is on the basis of the market value as on the date of plaint and not the consideration received in the document.

8. In 1987 (1) MLJ 88 (Kappurama Mudaliar Vs. The Govt., of T.N.,rep. By the District Collector, Vellore District) this Court again held that in a suit for declaration that the revenue sale held by revenue authorities was null and void, where consequential relief of possession also prayed for, the valuation of the property is to be under Section 40(1) i.e., on the market value of the property.

9. In 2005 (3) MLJ 289 (Chellakannu Vs. Kolanji) also, this court held that wherein the suit has been filed for declaration that the sale deeds are not binding on the plaintiff, prayed for permanent injunction, the plaintiff himself being a party to the sale deeds, he must first obtain the cancellation of the sale deeds, whether cancellation is sought for or not the suit is for cancellation, the plaintiff cannot seek any further relief without setting aside the sale deeds, the court fees must be paid under Section 40 of the Suits and Valuation Act.

10. In the present case, the plaintiff himself being a party to the alleged forged Ex.P.1 document, filed the suit for declaration to declare that the suit document is null and void. Therefore, when the party to the document is challenging the document and attacks the settlement deed as having been obtained from him by playing a fraud and misrepresentation, the plaintiff should have valued the suit property on the market value on the date of the plaint and not as set forth by h