PACHAYAMMAL Vs. DWARASWAMY PILLAI

JUDGEMENT

(1.) Whether market value of the property should be taken for calculating court fee when a suit is filed to set aside a gift deed is the question referred to the Division Bench by the learned Single Judge. Section 40 of the Kerala Court Fees and Suits Valuation Act (in short 'the Act') deals with valuation of suits in such cases. The court below in the impugned order, following earlier Division Bench decisions of this Court held that when a suit is filed to set aside a gift deed as one obtained by fraud and misappropriation, court fee is to be paid on the basis of the real market value on the date of filing of the suit as contemplated under Section 7(3A) of the Act. The above was challenged by the Writ Petitioners under Article 227 of the Constitution of India contending that in the earlier Division Bench decisions, Section 40 was not correctly interpreted. In Krishnan Damodaran v. Padmanabhan Parvathy 1972 KLT 774, Appikunju v. Meeran Pillai 1964 KLT 895, Vasudeva Rao v. Hari Menon 1981 KLT 763 and Jamy Kuriakose v. Jomon Kuriakose 2003 (1) KLT 411 this Court had held that, in a suit filed for setting aside a document, the court fee is to be paid on the market value of the property covered by the document on the date of filing of the suit. It was also argued that the provisions contained in Section 40 are self contained and the court cannot look into the provisions contained in Section 7 for computing the court fee payable under Section 40 of the Act. Learned Single Judge was of the opinion that the above point was not considered in the earlier decisions and observed as follows:

(2.) Before answering the question, we may quote the relevant sections. Section 40 reads as follows:

(3.) Here, the question is what is clearly stated in Section 40 as the criteria for valuation of suit filed for cancellation of a document. Section 40 of the Act mandates that if a suit is filed for cancelling a document which creates, assigns or extinguishes the right, title or interest in an immovable property, if the whole document is to be cancelled, the value of the property for which the document was executed and if plaint is only to cancel part of the document, such part of the value of property for which document was executed is the basis for suit valuation. Therefore, value depends on the value of property for which document was executed and sought to be cancelled and not the value mentioned in the document. Here, a gift deed is sought to be cancelled. Then on a plain meaning of Section 40, suit should be valued at the value of the property for which gift deed was executed and not the value of the document or value mentioned in the document. If a gift deed is executed out of love and affection, which is a valid consideration, suit valuation depends upon not on estimation of value of love and affection or null value, but, on the value of the property covered by the gift deed. Then the question is what is the value of property at the time of filing the suit. In legal terms value of property means market value of property and when valuation is considered with regard to suit valuation, it can only be market value of property at the time of filing the suit and nothing else. Section 7(1) clearly states that except otherwise provided, court fee payable under the Act depends on the market value determined on the date of presentation of plaint. No contrary indication is made in Section 40.