Judgment:
Govardhan, J.
1. The revision petitioner is the plaintiff in O.S. No. 119 of 1995 on the file of the Sub Court, Tindivanam.
2. The averments in the plaint are briefly as follows: The first defendant is the father and defendants 2 and 3 are the brothers of the plaintiff. They constitute an undivided Hindu joint family, which owned the suit properties. Plaintiff and defendants are in joint possession and enjoyment of the same. The first defendant was acting as the manager of the joint family and managing the properties or behalf of his sons, he has been paying kist and in possession of the property for himself and on behalf of all the plaintiff and defendants 2 and 3. All of them are entitled to 1/4th share in the suit properties. The plaintiff is a cardiac patient. He is both weak physically and mentally! He cannot attend to his normal life and was depending upon his father and brothers always. The defendants represented to the plaintiff that the creditors are pressing them for payment of the debts incurred for celebrating the marriages of the first defendant's daughters Jayalakshmi and Kalyani and for that they had to execute a mortgage of the suit properties and obtained his signatures. Out of confidence, he had with the defendants, the plaintiff signed the documents without following it. Even thereafter, the plaintiff and defendants are living jointly as before. The defendants have cooked up and fabricated a partition deed with false and frivolous recitals in it and have in it, obtained the signature of the plaintiff under the guise of executing a mortgage deed. The plaintiff therefore ignores the same, the partition which has been fabricated is null and void since it has been obtained using undue influence and playing fraud and misrepresentation, is not binding on the plaintiff. The plaintiff has now filed the suit for partition and separate possession of his half share and for mesne profits.
3. The plaintiff has paid court-fee under Section 37(2) of the Court-Fees Act, valuing the suit properties at Rs. 37,625.
4. A check-slip has been issued to the plaintiff to the effect that the market value of the suit property is given as Rs. 1,50,500 and the plaintiff has to value the relief on this amount for cancellation of the earlier partition deed dated 17.2.1987 as required under Section 37(1) of the Court-Fees Act.
5. The plaintiff filed the objection to the check slip contending that the Court-fee paid under Section 37(2) of the Court-Fees Act, is correct and the suit need not be valued under Section 37(4) of the Court-Fees Act, since the documents obtained by the defendant is void under the principles non estem factum and it could not be set aside.
6. The learned Subordinate Judge held an enquiry and has passed the impugned order directing the plaintiff to pay the deficit Court-fee of Rs. 11,288 under Section 40 of the Court-Fees Act on or before 18.3.1996.
7. Aggrieved over the same, the plaintiff has come forward with this revison.
8. The Check Slip issued by the Court-Fee Examiner is to the effect that the plaintiff has stated that he had signed the document without following it and that he did not have the power of discrimination as he was ailing and even thereafter he is living and enjoying the property along with the defendants as a whole. It is also stated that the plaintiff has accepted his signature in the partition deed and he being a party to the earlier partition deed, he cannot seek partition without cancelling the earlier partition deed and Court-fee for cancellation is therefore, payable under Section 37(4) of the Court-Fees Act. From the Check Slip issued, it is evident that the Court-Fee Examiner has called upon the plaintiff to value the prayer for partition after cancelling the earlier partition deed in which the plaintiff had signed. The learned Sub Judge, Tindivanam in his order has referred to Section 37(2) of the Court-Fees Act and has stated that he is of the considered view that the plaintiff cannot take shelter under Section 37(2) of the Court-Fees Act, the plaintiff was asked to pay the Court-fee under Section 37(1) of the Court-Fees Act since the earlier partition between the parties is a registered partition deed dated 17.5.1987 and the plaintiff has alleged that since it has been obtained by the defendants by using fraud, undue influence and misrepresentation is void and not voidable. The suit has teen valued under Section 37(2) of the Court-fees Act. As per the Check Slip issued, the suit should have been valued under Section 37(4) of the Act since the plaintiff seeks cancellation of the partition deed which is of the nature specified under Section 40 of the Court-Fees Act.
9. The learned Counsel appearing for the revision petitioner would argue that a deed of partition cannot be considered as a document which purports or operate to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest in money, movable or immovable property, and Section 40 of the Court-Fees Act is applicable only in suits for cancellation of document which purports or operates to create or extinguish a right in an immovable property and while computing the Courts-Fee payable, the plaint allegations alone have to be taken into consideration and the court cannot compel the plaintiff to pray for a relief which he has not chosen to pray in the plaint and therefore, the Check Slip issued is not proper and the order of the Sub Judge is also not tenable one.
10. It is to be noted that the court-fee, if it seriously restricts the rights of a person to seek his remedies in the course of justice, it should be strictly construed because access to justice is the basis of the legal system. Therefore, we have to see whether the partition deed can be construed as a document creating an interest in the suit properties or extinguishing the right of the plaintiff in it. In this connection I wish to recollect a decision reported in Neelavathi v. Natarajan (1980) 1 S.C.J. 539 wherein the Supreme Court has held that Court-fee to be consideration on the basis of allegation in plaint and that it is settled law that the Court-fee must be considered in the light of the allegations of the plaint and its decision cannot be influenced either by the plea in the written statement or by the final decision of the suit on merits. When we consider the material allegations in the plaint they would show that the plaintiff has specifically stated that on account of his health condition and ailing, without any power of discrimination, he had simply signed the document in which his signature was sought for by the defendants without knowing it to be a partition deed and it was a fraud played upon him and undue influence examined upon him and therefore, it is a void document. The plaint allegations have been referred in the Check Slip also and yet the Court-fee Examiner has directed the plaintiff to value the relief for cancellation of the earlier partition deed dated 17.2.1987 without considering whether the partition deed can be considered as a document referred to in Section 40 of the Court-Fees act. As per the decision reported in Periaswami v. Tint. Chellammal : (1980)1MLJ46 what the Section 40 of the Act contemplates is a document which purports or operates to create, declare, limit or extinguish whether in praesenti or in future any right or interest in money, movable or immovable property, and that a partition deed entered into between members of a joint family does not create or assign a right in properties for the first time among the sharers, nor does it limit or extinguish their right over all items of properties dealt with in the partition. It has been further held in the above decision that a partition deed operates as a re-adjustment of the rights between the sharers in the properties jointly owned by all of them till the time of partition and therefore, it is doubtful if a partition deed can be construed as a document of the nature envisaged under Section 40 of the Court-Fees and Suits Valuation Act. The above decision would show that the partition deed dated 17.2.1987 cannot be considered as a document of the nature envisaged in Section 40 of the Tamil Nadu Court-Fees and Suits Valuation Act. As per Section 37(4) under which the Court-Fee Examiner has directed the plaintiff to pay the Court-Fee, the Court-Fee has to be paid under Section 37(1) only if there is a prayer for the relief of cancellation of the document. The plaintiff has not asked for cancellation of the document. He has simply alleged in the plaint that he is in possession of the property in question along with the defendants and has prayed for partition. The relief which the court-fee examiner wants the plaintiff to ask is a relief which is not asked for by the plaintiff. Therefore, it cannot be imported as to charge court-fee thereon. When the plaintiff is examined and construed to see if it carries by necessary implications a prayer for cancellation of the document, the reply is only in the negative. The prayer in the suit is for partition on the ground that the plaintiff even though is a signatory to the partition deed is still in joint possession of the property along with the defendants and his signature has been obtained in the document exercising undue influence, fraud etc. If the plaintiff is able to prove these allegations that he was ill and did not have the power of discrimination and his signature has been fraudulently obtained by the defendants exercising undue influence, the plaintiff will be entitled to partition on account of the allegations in the plaintiff that he still continues to be in possession of the property along with the defendants. If he fails to prove the allegations in the plaint and if it is established that the plaintiff is a signatory to the partition deed dated 17.2.1987 the suit will have to be dismissed, in which case there is no necessity for the plaintiff seeking an order cancelling the partition deed. It is not as if without a relief for cancellation of the partition deed, the plaintiff cannot succeed in getting a decree for partition if he is able to prove his allegations in the plaint that he had no power of discrimination and his signature has been obtained fraudulently by the defendants, in exercising undue influence. In other words, as to the allegations in the plaint, the partition deed does not affect in any manner, since he continues to be in possession. Therefore, the plaintiff cannot be compelled to ask for the relief which he has not chosen to ask in the plaint. It is only if he seeks a relief of cancellation of the partition deed Section 37(4) comes into operation. When all these aspects are considered and Court-fee payable is to be decided which restricts, the rights of the plaintiff to seek the remedy asked for by him in the plaint, I am of the opinion that the benefit must got to him since the plaintiff has alleged that he being in possession of the property along with the defendants and he having signed the partition deed without any intention to execute it along with others, the lesser Court-fee paid by him is proper. In that view, I am of the opinion that the C.R.P. has to be allowed. The trial court is directed to permit the plaintiff to proceed with the trial of the suit on the Court-fee paid on the plaint.
11. In the result, C.R.P. is allowed setting aside the order passed by the learned Sub Judge directing the plaintiff to pay the Court-fee under Section 40 of the Tamil Nadu Court-Fees and Suits Valuation Act.