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Alamelu Alias Chinnakannammal and ors. Vs. Manickkammal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ8
AppellantAlamelu Alias Chinnakannammal and ors.
RespondentManickkammal
Cases ReferredDasari Nagabhushanam v. Kunameeni Venkatappayya
Excerpt:
- .....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 occpation 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.....
Judgment:
ORDER

V. Sethuraman, J.

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 occpation 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. Section 40 so far as it is material runs as follows:

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 immoveable 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.

The question that arises for consideration is whether this is a case where the suit is for cancellation of a document which purports or-operates to create any right or title in immovable property. A perusal of the pleadings would show that it is 'not a suit for setting aside the particular document under consideration. However, the learned Counsel for the petitioner submits that without getting rid of the document, the plaintiff would not be in a position to succeed and that therefore the suit should have been valued on the basis of Section 40 of the Tamil Nadu Court-fees and Suits Valuation Act.

4. 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)1MLJ278 , 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.

5. The learned Counsel for the respondent sought to distinguish this decision by contending that in the present case, the document itself could not have conveyed any title to the property, because, it was contended to be a forged one. In such a case, according to the learned Counsel, the decision in Dasari Nagabhushanam v. Kunameeni Venkatappayya : AIR1935Mad203 , would apply. In that case, the plaintiff alleged that a sale deed was forged by the defendant and in spite of his objection the Registrar directed its registration and he therefore prayed that the instrument may be declared to be a forgery and the costs incurred in the registration enquiry be refunded to him. The trial Court in that case took the view that the suit should have been valued in accordance with Section 7(iv-A) of the Court-fees Act then in force. Under that provision, in a suit for cancellation of a decree for money or other property the suit would have to be valued on the basis of the value of the property for which the document was executed. The teamed Judge held that in such a case the only relief, the plaintiff could ask for was for a declaration and the prayer for cancellation would be quite inappropriate. At page 96, it was stated as follows:

The question then really is, when a person alleges that a forged instrument has been brought into existence as if he were a party to it, does the law cast upon him a duty to have it cancelled or set aside by suit? There are two statutory provisions which show that a suit for declaration lies. (1) Section 39 of the Specific Relief Act, Illustration (b) to that section contains an express reference to forged instruments; and (2) Article 92 of the Limitation Act refers to Suits, 'to declare the forgery of an instrument issued or registered'. While the law thus entitled a person to sue to have the document adjudged a forgery, does it compel him or make it obligatory upon him to get it cancelled or set aside.

6. After referring to the authorities cited, the learned Judge came to the conclusion that the only relief that the plaintiff can ask for is that of declaration and that a prayer for cancellation would be quite inappropriate.

7. Having regard to the way in which the suit has come to be filed in the present case, it is clear that the plaintiff did not admit at any time that the document was executed by her or that she was a party to the document. Her case is that the document was a forged one. Forged documents would not confer title on any person and it would be unnecessary to get the document set aside in order to succeed in the prayer for declaration. The payment of Court-fee is to be adjudged on the plaint allegations. Whether the allegation of forgery is correct or not will have to be gone into in the suit. Nothing in this judgment will be taken as concluding that issue. In the circumstances of this case, I am satisfied that the suit was properly, valued and the civil revision petition is accordingly dismissed. No order as to costs.


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