ALAMELU ALIAS CHINNAKANNAMMAL AND ORS. Vs. MANICKKAMMAL

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed against the order of the learned District Munsif of Krishnagiri in O.S. No. 221 of 1974 dated 8th April, 1976. The plaintiff is the sister of the first defendant. The second defendant is the husband of the first defendant and the third defendant is the brother of the second defendant. The suit property belonged to the plaintiff and it was in the occupation of a nephew of her father -in -law. According to her, she could not recover possession inspite of her obtaining a decree. It was stated that the first defendant suggested to her to make appropriate provision in his favour in respect of the suit properties so that his sons would get possession of the properties at least after her lifetime. The plaintiff agreed to this arrangement and she claimed that she affixed her thumb impression on certain blank papers on the basis that the said blank papers would be used for writing a will in the manner contemplated by the parties. However, when the document came to be presented for registration in the Sub -Registrar's Office, she came to know that the first defendant had written a settlement instead of a will and therefore she refused to register the said document. The document was subsequently compulsorily registered and therefore she came forward with the present suit for declaration of her title and for permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit properties. Objection was taken to the Court -fee paid. The suit was valued at Rs. 1,300 and the Court -fee due thereon was accordingly paid. Objection was raised to the payment of Court -fee in the said manner on the ground that the' document itself would show that the market value of the property was Rs. 20,000 that the suit should have been valued at that figure and that the District Munsif's Court would have no jurisdiction to try the suit. Parties consented to the issues regarding Court -fee and maintainability of the suit, being tried as preliminary issues and the learned District Munsif held after hearing -the parties that since the plaintiff pleaded forgery of the document, it should be construed that she was not a party to the document and that she need not get it set aside. He therefore held that the Court -fee paid was proper and that he had jurisdiction to try the suit.

(2.) IT is against this judgment of the learned -District Munsif that the present revision petition had been filed. The learned Counsel for the defendants -petitioners submitted that this is a case which would come within the scope of Section 40 of Tamil Nadu Court -fees and Suits Valuation Act and that accordingly the Court -fee paid would not be proper. The learned Counsel for the respondent plaintiff submitted that this is a case where the document was a forged one and did not and could not pass any title to the properties and' that it need not be set aside. The contention urged was that Section 40 of the Court fees Act did not apply to the present case.

(3.) I had occasion to consider a similar question, though on somewhat different facts in Kuppurama Mudaliar v. State of Tamil Nadu by Collector of North Arcot C.R.P. No. 1060 of 1978 dated 25th August, 1978. In that case, the suit was as a sequel to sale by the Revenue authorities under the Revenue Recovery Act realisation of certain loans. The contention was that the sale was null and void. The plaintiff, therefore, paid Court -fee under Section 25 (d) of the Court -fees Act. The Court -fee examiner gave a check -slip pointing out that the proper provision under which the Court -fee should have been paid was Section 10 (1). The trial Court held that the plaintiff had to value the suit under Section 40 and seek also a prayer for cancellation of the revenue sale. My attention was then drawn to a few decisions, one of which was the one reported in M. Ct. Muthiah v. The Deputy. Controller of Estate Duty, Southern Zone, Madras : (1964) 1 MLJ 278, which was cited in the present case also. After considering this and other decisions, the view expressed by me was that if the relief could not be granted without the removal of the deed or decree to which the plaintiff was a party, then he must get the deed or decree set aside or declared void and that where the plaintiff was not a party to the document or decree it would not be possible for him to have it set aside in which case, he could ignore it. Causes where the illegal character of the transaction was writ large on it as for example a minor who had deliberately dealt with the property as if he was a major, were considered to stand on a different footing. However, in that particular case, without getting the revenue sale cancelled, the plaintiff -could not have established his title to the property and therefore it was held that the suit should have been valued in the manner contemplated by Section 40 of the Court -fees Act.