KRISHNAN DAMODARAN Vs. PADMANABHAN PARVATHY

JUDGEMENT

(1.) This civil revision petition is concerned with the interpretation of sub-s.(1) of S.40 of the Kerala Court Fees and Suits Valuation Act, 1959, Act 10 of 1960 (shortly called the Act).

(2.) The plaintiffs who are the petitioners before us sued to set aside a deed of cancellation executed by the defendant on 4-2-1970 revoking an earlier gift deed executed by her and for a declaration of the plaintiffs' title and possession over the suit property. The plaintiffs also prayed for the issue of a permanent injunction to restrain the defendant from entering into possession of the disputed item. The suit property consists of 12 cents of garden land with a building situated thereon. The document impugned valued the property at Rs. 100/- while in the plaint the value was determined at Rs. 200/- for the purpose of payment of court fee. The Court Fee Examiner raised the objection that separate court fee is payable on the B relief relating to the permanent injunction. The defendant in her turn raised the contention in her written statement that the market value of the suit property is not less than Rs. 4,000/- and that court fee has to be paid on that basis. An issue was raised regarding the proper court fee payable and it was heard preliminarily. The lower court ordered that for the B relief separate court fee is payable under S.27(c) of the Act and that for the main prayer court fee has to be paid on the market value of the property. Consequently it directed the plaintiffs to take out a commission to value the property at their cost within one month.

(3.) The finding of the lower court with regard to the payment of court fee on the B relief was not challenged before us. The only question that falls for decision is whether for the main relief proper court fee has been paid. It is common case that court fee is payable in accordance with the provisions contained in S.40(1) of the Act; and the contention of the petitioners is that in view of the wording of the relevant clause in S.40(1) the basis of valuation for the purpose of payment of court fee is the amount recited in the document sought to be cancelled and not the market value of the property as found by the court below. Sub-s.(1) of S.40 of the Act is in the following terms: