A.N.Varma - (1.) A difference of opinion between two learned judges in regard to the court fee payable on the plaint of the suit filed by the plaintiff appellant has led to this reference.
(2.) THE short question which falls for consideration is whether the court fees on the plaint in question is payable under clause 1 of Section 7 (iv-A) Court Fees Act as held by the" Honourable K. C. Agarwal ACJ (as he then was) or under clause 2 of that provision as held by the other learned judge, Brother S.N.Sahay. It is not necessary to set out the essential facts as the same have been noticed by the two learned judges in considerable detail. 1 shall, therefore, come straightaway to the provision, Section 7 (iv-A) of the Court Fees Act (as applicable in this State) which reads ; "For cancellation or adjudging void instruments and decree. In suits for or involving cancellation of or adjudging void other property having a market value, or an instrument securing money or other property having such value j (i) Where the plaintiff or his predecessor in title was a party to the" decree or the instrument, according to the value of the subject-matter, and (ii) Where he or his predecessor in title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be- if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of a decree or instrument is involved in the suit, the amount or value of the property to which such part relates." The instrument in question is a will dated 16-2-1981 alleged to have been executed by Late Shri Ram Agarwal in favour of defendants no. 1, 2, 3 and 4 while the relief claimed in the suit is one for declaration that the will is null and void. That being so, Section 7 (iv-A) is immediately attracted to the case. The only question is which one of the two clauses of that provision would apply- For resolving this question it will have to. be seen whether the plaintiffs or their predecessors were a party to the instrument- the will in this case, of the answer is in the affirmative, the case would be covered by clause (1) of Section 7 (iv-A). If, on the other hand, the answer is in the negative, clause (2) of the same provision would be attracted and the court fee payable would be one-fifth of the value of the subject matter. According to court below the case is covered by clause (I) and, therefore, the court fee shall have to be paid according to the value of the subject matter. Construing the plaint the learned ACJ ruled that Shree Ram Agarwal, who according to him was the predecessor in title of the plaintiffs, was a party to the instrument and, therefore, clause (1) and not clause (2) of Section 7 (iv-A) would be attracted.
(3.) BROTHER S. N. Sahay, on the other hand, interpreting the same plaint has come to the opposite conclusion He says the plaintiffs have not stated in the plaint that will was executed by their predecessor. The learned judge states that according to the plaint case the plaintiffs were not claiming their title through Shree Ram Agarwal, but independently of him-of the house property as members of Joint Hindu Family, and, in the partnership business, on the basis of the partnership agreement. Summing up the plaint case, the learned judge observed : "It will be seen that the suit which has been filed by the appellants is for adjudging void a will alleged to have been executed by Late Sri Ram Agarwal in respect of the house property and partnership business. It is, however, not alleged that the said will has been executed by the plaintiffs. The plaintiffs were not party to the said will. The appellant did not claim to derive title through La la Sri Ram Agarwal to the subject matter of the suit which are the house property and the partnership business. On the contrary, they claimed title to the said properties independently of Lala Sri Ram Agarwal, in one case regarding the bouse property as members of the Joint Hindu Family and in the other case, regarding partnership business, on the basis of partnership agreement. The appellants do not claim that the disputed will was executed by their prcdecessor in title nor can any such assertion be imputed to them. Even if it is regarded that Lala Sri Ram Agarwal was a party to the disputed will it cannot be said on the basis of the plaint allegations that he was a party to the will in his capacity as predecessor in-title of the appellants in relation to the properties in suit. Therefore, the provisions of Section 7 (iv-A) and clause (2) thereof and not clause (1), are attracted and as such court fee is payable according to one-fifth of the value of the subject matter." With respect, this is a correct construction of the plaint. I entirely agree that in the first place the plaintiffs are not claiming rights in the disputed property comprising a house and partnership business through Shree Ram Agarwal but are setting up a claim and title in repation to the properties in suit wholly independent of him. Secondly, according to the plaint case neither the plaintiffs nor Shree Ram Agarwal were party to the will. The plaint case is that the latter had not executed the will.;