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A. Gopalakrishna Iyengar Vs. P. Sirrengammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1964)1MLJ278
AppellantA. Gopalakrishna Iyengar
RespondentP. Sirrengammal and anr.
Excerpt:
- .....to the present case as the document of partition is void and need not therefore be set aside as a void document is non est in law. but section 40 would apply to a case of cancellation of a document which ' purports or operates to create, declare, assign ' etc. it cannot be gainsaid that this document of partition purports to create certain rights. the question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of section 40. having read the provision of the act, i am unable to, say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision. the order of the court below is correct. this civil revision petition fails and is dismissed. no costs to the government pleader.
Judgment:
ORDER

G.R. Jagadisan, J.

1. The petitioner is the plaintiff in an unregistered plaint on the file of the Sub-Court, Tirunelveli. The suit was laid for recovery of possession of properties mentioned in Schedules I and II of the plaint and for accounting. It appears that the properties originally belonged to one Krishna Ayyangar. He had a son by name Anantakrishna Iyyangar who, however, predeceased his father. The first defendant in the suit is the widow of this Anantakrishna Ayyangar and the plaintiff' is their only son. It is alleged that there was a partition between the mother and the son in and by which the mother got a life estate in respect of the First Schedule properties. The Second Schedule house was purchased by the first defendant from and out of the income of the properties and the cash assets in her hands. On a check-slip placed before the Court below by the Court-fee Examiner, the learned Subordinate Judge took the view that the matter was governed by Section 40 of the Court-fees Act and called upon the petitioner to pay additional Court-fee in conformity with the said provision. Now, Section 40 is quite clear and it reads:

(i) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, moveable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be....

If the whole decree or other document is sought to be cancelled the amount or value of the property for which the decree was passed or other document was executed:

if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property. (2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed related only to' a particular item Of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of decree, whichever is less.* * * * * *

2. It is contended by Mr. Sitarama Ayyar, learned Counsel for the petitioner that Section 40 would be inapplicable to the present Case as the document of partition is void and need not therefore be set aside as a void document is non est in law. But Section 40 would apply to a case of cancellation of a document which ' purports or operates to create, declare, assign ' etc. It cannot be gainsaid that this document of partition purports to create certain rights. The question now is not whether it is void or voidable, but the question is, whether it would fall within the ambit of Section 40. Having read the provision of the Act, I am unable to, say that this document, whatever its real character may be, void or voidable, would not fall within the ambit of the said provision. The order of the Court below is correct. This Civil Revision Petition fails and is dismissed. No costs to the Government Pleader.


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