ORDER
Ranganadham Chetty, J.
1. A question of court-fee is raised by the petitioner who is the plaintiff in this suit.
2. The suit was filed for cancellation of a deed of exchange dated 11-11-1953 executed by 'the plaintiff and the defendant and for recovery of possession of the A schedule property which is in the hands of the defendant. He is prepared to surrender possession of the B schedule property which he had taken under the aforesaid exchange.
3. The deed of exchange mentions on its face the value as Rs. 20,000/-. Obviously what is meant is that the value of each of the two schedules is Rs. 20,000/-. That is conceded by the plaintiff. The suit is pending. At one stage, a commissioner was appointed for valuation of the two schedules and he has reported that the value of the A schedule property which is sought to be recovered from the defendant is Rs. 59,160/- while the B schedule now in the hands of the plaintiff, has been assigned a value of Rs. 32,180/-.
The plaintiff has offered to pay a court-fee ad valorem on the difference in value between the two properties, because he is prepared to surrender the B schedule which is now in his hands and to take the A schedule. But the court declined to accept the difference in value as the criterion and has insisted on the full court-fee being paid on the value of the A schedule property which is claimed from the possession of the defendant. Hence this revision by the plaintiff.
4. The learned advocate for the petitioner (plaintiff) argues with a degree of plausibility, that the relief which he wants in effect is the difference in value between the two sets of property, that he is not asking for the A schedule property unconditionally and that the ultimate benefit which would enure to him if his claim is decreed in the suit is only measurable by the difference in the values of the two schedules.
5. There are two reliefs set forth in the plaint (1) for cancellation of a document to which the plaintiff is a party, and (2) for possession.
6. In a case of this kind, it is not Section 7(v) of he Court-fees Act but only Section 7 (iv-A) that is applicable. That has been laid down in Balireddi v. hatipulal Sab, 69 Mad LJ 458 : (AIR 1935 Mad 863). That view was affirmed by the Full Bench in Kutumba Sastri v. Sundaramma, ILR (1939) Mad 764 : (AIR 1939 Mad 462).
7. There can be no doubt about the application of Section 7 (iv-A) of the Court-fees Act which corresponds to Section 37(1) of the Andhra Court-fees and Suits Valuation Act 1956 which runs thus :--
'37(1). 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 ..... any right title or interest in money ..... fee shall be computed on the value, of the subject-matter of the suit.'
The learned advocate for the petitioner while conceding that Section 37(1) of the Andhra Court-fees and Suits Valuation Act has application to this case would interpret the subject-matter of the suit to be merely the difference in the valuation. He relies on Sundara Ganapathi v. Daivasikamani, AIR 1931 Madras 94. Ramesam, J., in the aforesaid decision, was dealing with a suit wherein the plaintiff sought to set aside a partition effected by him with his father and the step-brother.
He charged that he was forced to sign this document under certain vitiating circumstances and expressed the grievance that the properties allotted to him were over-valued while those which were taken by the father and the step-mother had been disproportionately undervalued. The court countenanced the contention that it is the difference in value between the properties actually allotted to the plaintiff and what he claimed that should form the criterion for valuation. It was observed that:--
'In the present case the plaintiff has got some immovable properties allotted to him but he complains that this is an unfair allotment. And he apparently thinks that he is entitled to some more properties. I think an opportunity ought to be given to him so that he may state the valuation of his share of the immovable properties in the manner stated by the proviso, that is, according to para 5, Section 7 and the valuation of the properties allotted to him and half the difference between the two would be the minimum value on which he is to pay the court-fees.'
We are not now concerned with the correctness of the application of Section 7(v) to the case. What is stressed is the adoption of the criterion of the difference in the value.
8. But, there is nothing to show in that case that that plaintiff was prepared to surrender the properties which had already been allotted to him and was covering other properties instead. The reference to the plaintiff apparently thinking 'that he is entitled to some more properties' would render probable the intention of the plaintiff to retain what had been allotted to him and to ask for some further items to make up the deficiency. Naturally, the excess alone had to form the criterion for valuation.
In this case, it is not as if a few additional items are sought to be recovered from the defendant's hands retaining the B schedule property by the plaintiff. It is the entire A schedule which had passed to the defendant under the terms of the exchange deed that is sought to be recovered.
9. Again, a decision of a Division Bench in Sital Prasad v. Ramdas Sah, AIR 1939 Pat 274, expressed the view similar to what Ramesam J., in AIR 1931 Mad 94 had taken. In that case, too, the facts do not make out that the plaintiff was prepared to surrender the properties in his possession.
10. While the proposition now urged by the petitioner is not covered by any direct authority it is clear that there is no substance in the contention advanced. The mere, fact that the plaintiff is prepared to surrender the properties in his favour cannot affect the question of the liability for court-fee reckoned on the full value of the properties which he seeks to recover from the hands of the defendant. Such a difference can hardly be the criterion. To what absurd results the principle can be carried will be manifest if we take the case of the two sets of properties being of equal value.
In fact, the exchange deed mentions that A and B schedules are of Rs. 20,000/- value each and in that case the difference would be nil and the plaintiff must be able to present a plaint without a court-fee and prosecute his action too without a court-fee because the difference is nil; or take a case where under an exchange or a sale deed certain valuable properties or a heavy sum of cash is paid for an heir-loom or an article of sentimental value whose market value would be trivial. The difference would be in favour of the plaintiff himself. Even then no court-fee would be payable.
11. Apart from it, taking up an analogous case of a suit for specific performance of an exchange, we find it provided in Section 39 of the Andhra Court-fees and Suits Valuation Act 1956 thus :--
'39. In a suit for specific performance, with or without possession, fee shall be payable--
(a) xx xx (b) xx xx (c) xx xx(d) in the case of a contract of exchange, computed on the amount of the consideration, or as the case may be, on the market value of the movable property or threefourths of the market value of the immovable property sought to be taken in exchange.'
12. It is not the difference that was adopted as the guiding factor. The concession of a fourth of the market value is not available in other cases dealing with exchanges and the full value has to be paid under Section 7 (iv-A) of the Court-fees Act. The lower court was right in demanding the court-fee on the full value of the A schedule as determined by the Commissioner.
13. The civil revision petition fails and is dismissed. The plaintiff, however, will have time till the end of February, 1959 to pay the court-fee.