K. Veeraswami, C.J.
1. This reference relates to court-fee and made on the view that there is conflict of decision on the interpretation of Section 40(1) of the Madras Court-Fees and Suits Valuation Act. 1955. In Arunachalathammal v. Sudalaimuthu Pillai (1970) 83 MLW 789, 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. Doraisami Gounder : AIR1971Mad380 which was concerned with a suit for cancellation of a sale deed. Sadasivam J. considered that in view of Kutumba Sastri v. Sundarammal, ILR (1939) Mad 764 AIR 1939 Mad 462, 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 plant seeking to set aside a final decree in a partition suit, in which the property forming the security of the mortgage in favor 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 Arunachalathammal v. Sudalaimuthu Pillai, (1970) 83 MLW 789 and Sengoda Nadar v. Doraisami Gounder : AIR1971Mad380 . 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 ILR (1939) Mad 764 AIR 1939 Mad 462, is the correct one. The language of Section 7(iv-A) of the earlier Court-Fees Act is in pari materia with that in Section 40(1) of the 1955 Act. The first part of the sub-section presents no difficulty, because it speaks of the value of the subject-matter of the suit which clearly means the market value. But the sub-section proceeds to say that the value of the subject-matter of the suit should be deemed to be so and so. If what is sought to be cancelled is the whole of the decree or document, the basis for assessment of court-fee is the amount or value of the property for which the decree was passed or such document was executed. But if a part of the decree or the document is sought to be cancelled, court-fee is to be paid on such part of the amount or value of the property. The language so employed is intended to meet different situations where decree and document of diverse character may be involved. Where the decree is a money decree or a charge decree which is sought to be set aside, it presents no difficulty. Where the decree is property, equally it is easy, because in such cases the amount for which the decree is passed is the basis for assessment of court-fee. But in the case of a document when the sub-section speaks of value of the property for which the document was executed, prima facie it would appear that the basis for assessment of court-fee is the amount that has been mentioned in the document. But on a closer scrutiny of the entire section its intention is quite clear, especially in the light of the language 'if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property'. It will be illogical to hold that if a part of the document is asked to be set aside, the market value should be the basis. But, if the whole of the document is to be set aside, it is the amount which is mentioned in the document is the value. The crux of the mater lies really in the first part of the sub-section, namely the value of the subject-matter of the suit being the basis for assessing the court-fee. The deeming contemplated by it is not to convert the value into something different from the market value. The words 'for which the decree was passed or other document was executed' will have to be understood only in the sense of the value of the subject-matter being the basis for assessment of court-fee, which is the market value. That apparently was the view of Venkatasubba Rao, J. in Balireddi v. Abdul Satar, ILR 59 Mad 240 = AIR 1935 Mad 863, which was accepted as the correct view by the Full Bench in ILR (1939) Mad 764 AIR 1939 Mad 462.
2. In the instant case, however, it seems to us that the subject-matter is neither the property for which the mortgage was executed nor the mortgage itself. The petitioner, as a mortgagee, is not asking for the property. Nor does it relate to the mortgage. His grievance appears to be against the allotment of the property mortgaged to him to a person other than the mortgagor. That being the limited relief that the petitioner is interested in the suit, the subject-matter, namely, his grievance against the particular allotment, is not capable of market value. It follows that court-fee is not payable under Section 40(1). The provision that will be applicable is Section 50. The court-fee paid by the petitioners in C. R. Ps. 1762 of 1968 and 1615 of 1969 appears to be correct. The petitioner in C. R. P. 2019 of 1971 will have two months' time to pay the deficit court-fee. There will be an order accordingly. No costs in any of the petitions.
3. Ordered accordingly.