Decided on August 01,1955



Agarwala, J. - (1.) This is an appeal by the plaintiff under Section 6-A, Court-fees Act against an order holding that the Court-fee paid on the plaint was insufficient on the ground that the relief claimed involves cancellation or adjudging void of a Will. The facts of the case are as follows:
(2.) The plaintiff claimed that his father carried on a certain business and owned certain property; that he held a decree for Rs. 22,800/-against Rani Jai Raj Kunwar; that on 17-3-1941, Chiranji Lal executed a Will in respect of his property bequeathing Rs. 7000/- out of the decretal amount to the plaintiff and half share of a certain house described in the plaint to the plaintiff and defendants 3 and 4; that Chiranji Lal wanted to give his business to the . plaintiff and defendant 4; that on account of the trickery of defendant 1 no mention was made of this intended gift in the Will; that thereafter, when Chiranji Lal came to know that the gift in respect of the business assets had been omitted in the Will, he made an oral Will on or about the 23rd or 24th of March, 1941, to effectuate his intention; that in this way the plaintiff became the owner upon the death of Chiranji Lal of an amount of Rs. 7000/- out of the decretal amount and of half of the share in the business and of one sixth share in the house, that Chiranji Lal died on 29-12-1944, and the oral Will aforesaid was his last Will and Testament; that defendant 1 denies the plaintiff's right and puts forward another Will dated 26-12-1944 as the last Will of Chiranji Lal; that on that date he was not in his proper senses and was not in a fit position to execute a Will as he was incapable of understanding matters or to execute a Will intelligently; that the Will aforesaid dated 26-12-1944 is merely a forged paper and is not genuine and that the cause of action arose in the case when the defendant denied the plaintiff's right.
(3.) On these allegations the plaintiff framed his reliefs as follows: A declaration may be made to the effect that the plaintiff is the owner of a sum of Rs. 7000/-out of the bonds which have been detailed at the bottom of the plaint and that he is owner of the business to the extent of one half and of the house to the extent of one sixth.;

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