Case: J. Vasanthi  Vs. N. Ramani Kanthammal (D) Rep. By Lrs.

2. The facts in a nutshell are that the A Schedule property, as appended to the plaint, was purchased by the plaintiffs father, late Raja Chidambara Reddiyar from one Balasundara Iyyer on 12.08.1943 through document No. 412/1943 and also B schedule property was purchased by him from one Swaminatha Iyyer on 09.08.1943 through document No. 238/1943. After the purchase, he got the patta transferred in his name and paid the government taxes and enjoyed the properties. On 21.02.1948 through document No. 596/1948 plaintiffs father made a sale of the A and B Schedule properties along with some other properties in favour of Sellammal w/o Rangoon Krishnasamy Reddiyar. As averred in the plaint, the A and B schedule properties and other properties which were sold, were again purchased by the father of the plaintiff on 19.04.1948 through document No. 1469/1948 from Sellammal and, thereafter, changed the patta in his name bearing patta Nos. 621, 705, 2032 and 2133, and held the suit A and B Schedule properties during his life time. As pleaded, the plaintiffs father died on 07.10.1986 leaving behind the plaintiff and her sister Gowri as his legal heirs. The 1st defendant is the son of the plaintiff. The 2nd defendant is the husband of the 3rd defendant and the 4th defendant is their son. The 5th defendant is the father of 3rd and 6th defendants andw of the 2nd defendant. The suit was basically filed for seeking declaration that the sale deeds dated 30.08.1991, 23.03.1993, 04.01.1994, 10.06.2002 and 11.03.2004 as per document Nos. Document Nos.922/1991, Document No.330/1993, Document No.2395/1994, Document No.1239/2002 and Document No. 214/2004, respectively as null and void and for permanent injunction3. The further narration of the factual score is that as regards the A Schedule property, the plaintiff asked for a loan of Rs. 1 lakh from the 2nd defendant, Janakiraman, who in turn, suggested that an agreement for sale should be made in favour of his, the 6th defendant, Saravanaprabhu. The plaintiff agreed to make an agreement for sale as proposed by the 2nd defendant. As per the said agreement an amount of Rs. 50,000/was received by the plaintiff and her son, the 1st defendant and executed an agreement for sell4. It is claimed that at that time, the 2nd defendant obtained signatures in blank papers. Since the document was for security which was made in favour of the 6th defendant on the request of the 2nd defendant, no action was taken regarding document No. 805/91. It is further contended that the A and B Schedule properties were maintained by the plaintiff and her sister in the name of their father only. When the plaintiff was making arrangements for partition of the A and B Schedule properties on 10.03.2011, it came to their knowledge that the defendant Nos. 2 to 6 had created fabricated documents on the basis of the document No.805/91. It is urged in the plaint that the 2nd defendant was ar and taking advantage of his position the sale agreement made in favour of the 6th defendant, who is thew of the 2nd defendant, fabricated sale deeds were created by the defendant Nos. 2 to 6 as if the plaintiff had executed the sale deed in favour of the 6th defendant5. The defendants filed I.A. No.94 of 2014 in O.S. No.20 of 2014 praying for directing the plaintiff to pay the court fees under Section 40 of the Act failing which to reject the plaint since the plaint was highly undervalued. The said application for rejection of the plaint preferred under Order VII Rule 11 of the Code of Civil Procedure was dismissed by the Principal District Judge, Dindigul, as mentioned hereinbefore. The trial Judge, while dismissing the I.A., relied upon the decisions in G. Seethadevi v. R. Govindaraj & Ors. (2011) 6 MLJ 399  ), P. Thillai Selvan v. Shyna Paul & Anr. (2014) 7 MLJ 732  ), and Siddha Construction (P) Ltd. Rep. By its Power Agent, Anjay Sharma, No.32 Guruswamy Road, Chetpet, Chennai – 600031 v. M. Shanmugam & Ors. (5) CTC 255 : (2006) 4 MLJ 924  ). Be it clarified that the original plaintiff died during the pendency of the case, i.e., on 15.01.2015, and her legal heirs have been brought on record6. Being dissatisfied with the aforesaid order, the appellants preferred C.R.P. (MD) No. 847 of 2015 (PD). It was contended before the High Court that the learned trial Judge has completely erred by rejecting the prayer inasmuch as the plaintiff was seeking declaration for cancellation of the sale deeds and hence, she was liable to pay the court fee underSection 40 of the Act and not under Section 25 (d) of the said Act. It was also urged that the trial court has completely erred by placing reliance on Siddha Construction (supra). The said stand of the revisionists was resisted by the opposite parties contending, inter alia, that when a plea had been advanced that she had not executed any sale deed and the documents were fabricated, then the court fee is payable as per Section 25(d) and Section 40 of the Act is not attracted. That apart, it was also urged that the payment of the court fee is a mixed question of fact and law and, therefore, the plaint was not liable to be rejected by entertaining a petition as regards evaluation of the suit property. It is worthy to mention here that the issue of limitation was raised before the trial court which was not accepted as a ground for rejection of the plaint and the High Court concurred with the same. We do not intend to address the issue of limitation as that can be dealt with at the stage of trial of the suit7. The High Court, as the impugned judgment would show, referred to the averments in the plaint which were to the effect that the sale deeds were not executed by theirt and she had not received consideration and, therefore, the principle enunciated in G. Seethadevi (supra) is squarely applicable to them. The High Court further observed that on a perusal of the plaint, it is manifest that the plaintiff had denied execution of the sale deeds and in that context the court fee payable could be under Section 25(d) and not under Section 40 of the Act18. The High Court posed two questions, namely, (i) whether in the Suit filed for Declaration that the Sale Deeds are invalid, Court Fee paid under Section 25(d) of the Act is incorrect and (ii) whether the impugned order directing the Plaintiff to pay the Court Fee under Section 40 of the Act suffers from any infirmity warranting interference. Dealing with the factual matrix, the High Court observed:Thus, the Plaintiff himself is a party to the Sale Deed; when the Party himself seeks to get rid of the Sale Deeds in substance it amounts to Cancellation of Decree. The Plaintiff might seek to avoid the Sale Deeds if he is not a party to the Sale Deeds. But, since the Plaintiff himself is a party to the Sale Deeds before he is suing for any relief, the Plaintiff must first obtain the cancellation of the Sale Deeds. And again:

Reasoning: 11. The singular issue that gains significance in this case is that the original plaintiff was a party to the transaction. Section 40 of the Act, as we notice, provides that in a suit for cancellation of a document, the court fee has to be computed on the value of ther of the suit and such value shall be deemed to be the whole decree or other document which is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. It also spelt out that a part of the decree or other document is to be cancelled, such part of the amount or value of the property. On a careful scrutiny of the provision, it is limpid that it refers to the decree or other document and in that context, it uses the word value19. To appreciate the decision in P. Thillai Selvan (supra), we have carefully gone through the same and we find the High Court has referred to Order VII Rule 11 CPC, adverted to the issue of payment of court fee both as a question of fact and law and opined that the trial court has rightly rejected the petition. Thus, the said decision does not really deal with Section 40 of the Act24. The decisions in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law25. Another aspect needs to be noted. As we notice from the impugned judgment, the High Court has expressed the view that payment of the court fee is a mixed question of fact and law and that has to be decided on the basis of evidence26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738  ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited26. In this context, we have been commended to the decision in A. Nawab John and others v. V.N. Subramaniyam (2012) 7 SCC 738  ). On a careful perusal of the said decision, we find that the said authority nowhere addresses the issue that is involved in the case at hand. Proper valuation of the subject matter or under valuation is an aspect which can be contested by the defendant, but the said contest is limited27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable. We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick.