Held, Court fee payable.

This petition (C.R.P. No. 1762 of 1968) coming on for heaing before the Honourable Mr. Justice G. Ramanujam, on Wednesday 28th April, 1971 upon perusing the petition, the order of the lower Court, the material papers and upon hearing the arguments Mr. P. S. Ramachandran for G. S. Rajappa, Advocate, for Petitioner and of Mr. V. Janakiram, Advocate, for the first respondent, and second respondent not appearing in person or by Advocate, and having stood over for consideration till 30th April, 1971 the Court made the following order on 3rd April, 1971.

The only question that arises for consideration in this revision is as to Whether the petitioner-plaintiff who has prayed for cancellation of a deed of settlement executed by her on the ground of fraud, is liable to pay court-fee on the market value of the properties or on the value of the properties as given in the settlement deed.

I find there are two directly conflicting decisions on the point. One has been rendered by Kailasam, J., in Arunachalammal v. Sudalamuthu Pillai1wherein it has been held that the Court-fee payable for cancellation of a document under section 40 (1) of the Madras Court-fees and Suits Valuation Act, 1955 should be computed on the value for which the document was executed. The other has been rendered by Sadasivam, J., in Sengoda Nadar v. Doraiswami Goundar1, following the decision in Kutumba Sastri v. Sundaramma2, wherein it has been ruled that in a suit for cancellation of a sale deed executed by the plaintiff on the ground that the document has been secured while the executant was under the influence of liquor should be valued according, to the market value of the property on the date of the suit. In the latter case the decision of Kailasam, J.has been considered and it has been expressed therein that the Full Bench decision in Kutumba Sastri v. Sundaramma3, which dealt with a similar position under the earlier Act has not been properly understood or appreciated. In view of the above two conflicting views expressed, I consider that the matter may be properly considered by a Division Bench and an authoritative ruling given. I therefore direct the papers to be placed before my Lord the Chief Justice for orders. I also direct notice to the Government Pleader as the matter relates to Court-fee.

V . Syamalam, for C.S. Rajappa, M. A. Sathar Sayeed, P. Gururamachandran, for Petitioners.

V. Gajapathy, A. Ibrahim Khan, Manicka K. Ramalingam, for Respondents.

The Judgement of the Court was delivered by

Veeraswami, C.J.-This reference relates to court-fee and is made on the view that there is a conflict of decisions on the interpretation of section 40 (1) of the Madras Court-fees and Suits Valuation Act, 1955. In Arunachalammal v. Sudalamuthu Pillai4, Kailasam, J., held that Court-fee should be assessed on the value for which the document was executed and not on the market value. In Sengoda Nadar v. Doraiswami Goundar2, which was concerned with a suit for cancellation of a sale deed Sadasivam, J., considered that, in view of Kutumba Sastri v. Sundaramma1, a Full Bench decision, fee Was exigible on the market value of the property covered by the document sought to be set aside. The instant case is of a plaint seeking to set aside a final decree in a partition suit, in which the property forming the security of the mortgage in favour of the petitioner was not allotted to the mortgagor, but to another sharer. The petitioner is set ex parte at the final decree proceedings. On the view We are inclined to take as to the scope and effect of the plaint and the relief claimed therein, it may not be necessary to resolve the conflict between Arunachalammal v. Sudalamuthu, Pillai2, and Sengoda Nadar v. Doraiswami Goundar3. But, since arguments have been heard by us, it seems that the view, namely, that Court-fee should be paid on the market value of the subject-matter of the suit covered by a decree or document which prevailed in Kutumba Sastri v. Sundarammal1, is the correct