ANIL KUMAR SHARMA,J. - (1.) CHALLENGE in this appeal is to the order dated 21.5.2011 passed by Addl. Civil Judge (S.D.), Court no. 2, Ghaziabad in O.S. no. 859 of 2006 whereby issue no. 8 regarding payment of court-fee has been decided against the appellant and she has been directed to pay ad voleram court- fee on relief-A at Rs. 40.0 lacs.
(2.) FACTS germane to the appeal are that the plaintiff-appellant filed aforesaid suit for declaration that the will dated 16.7.2004 (the 2004- Will) is void, ineffective and had been executed without free will of Smt. Pushp Kirti Sharma and the plaintiff is entitled to get suit property according to will dated 17.1.1991 (the 1991-Will) and the declaration of the Court be intimated to Sub-Registrar, Ghaziabad. The plaintiff further sought relief of injunction restraining the defendant from interfering in plaintiff's possession over house no. KK-160, Kavi Nagar, Ghaziabad and she be restrained from alienating the house on the basis of the 2004-Will. By way of amendment in the plaint, the plaintiffs further sought declaration to the effect that the 1991-Will executed by late Smt. Punay Kirti Sharma is valid and had been executed by her own free will. The plaintiff has paid court-fee of Rs. 200/- on declaratory relief-A and Rs. 500/- on the relief-B of injunction. The defendant objected to the payment of court-fee on the ground that the plaintiff is required to pay ad valorem court-fee according to the market value of the house in suit as provided under section 7(iv)(A) of Court Fees Act because she had not claimed simple declaratory relief with regard to the 2004-Will in favour of the defendant, but she has also prayed for consequential relief of injunction and further by way of amendment has sought for adjudging the 1991-Will is valid one. We have heard the learned counsel for the parties at length and perused the record and well as the law cited at the Bar. Before we proceed to discuss the arguments of parties' counsel, it would be appropriate to quote the relief claimed by the plaintiff- appellant in the suit, which is as under: ...[VERNACULAR TEXT OMMITED]... The learned counsel for the plaintiff has argued that Section 2(h) of Indian Succession Act, 1925 defines 'will' as "declaration of the intention of testator with respect to his property which he desires to be carried into effect after his death." Thus, a 'will' is the legal instrument that permits a person, the testator, to make decisions as to how his estate will be managed or distributed after his death. Learned counsel for the appellant has referred to Section 3 of Transfer of Property Act, where an 'instrument' has been defined as a "non-testamentary instrument". He has tried to convince us that a will is not an instrument as contemplated under section 7(iv-A) of the Court Fees Act and thus fixed court fee would be paid according to the provisions of Schedule- II Article 17 (iii) of the Act and there is no deficiency in payment of court-fee. Contra learned counsel for the respondent refuting the above argument has submitted that the 'will' is an instrument securing money or other property having such value, therefore, the plaintiff is required to pay ad valorem court fee on the reliefs claimed by her in the suit. In order to appreciate the rival contention of the parties, it is necessary to place the three provisions of the Court Fees Act, which are involved in the present case, namely. Section 7(iv-A), Article 17(iii) of Second Schedule of the Court Fees Act and Section 7(iv)(a) of the Court Fees Act, The said provisions are quoted hereunder; 7-(iv-A) - In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value: 1. 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 2. 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 the decree or instrument is involved in the suit, the amount or value of the property to which such part relates. 7-(iv)(a) - to obtain a declaratory decree or order, where consequential relief other than reliefs specified in Sub- section (iv-A) is prayed. Article-17 (iii) of Schedule II of the Court Fees Act. To obtain a declaratory decree where no consequential relief is prayed in any suit, not otherwise provided for by this Act; (a) When the value of the suit or appeal, for purposes of jurisdiction, does not exceed one thousand rupees; Thirty rupees (b) to (d)...................."
(3.) AS word 'instrument' has been used in Section 7 (iv-A) of the Court Fees Act, the learned counsel for the appellant has valiantly tried to emphasize that since 'instrument' is a non-testamentary instrument, so it would not cover the will, which is a testamentary instrument. He has further submitted that a 'will' does not secure any property and may not even specify any property and as such the market value thereof may not be ascertained and as such no court fee may be fixed on market value and it is only the fixed court fee for declaration which is liable to be paid and as such the order passed by the learned trial court is absolutely illegal and is liable to be set aside. In support of his argument the learned counsel has placed reliance on the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & others 2010(3) J.T. 472. For a moment the argument appeared to be attractive but it is fallacious. Word 'instrument' occurring in aforesaid section cannot be read in isolation. It has been so defined for the purposes of Transfer of Property Act. The proper term for our purpose would be 'an instrument securing money or other property having such value'. It is now not res integra that the payment of court fee is dependent entirely upon the averments made in the plaint and relief claimed therein. The averments made in the written statement are not required to be examined. In the present case, the plaintiffs have prayed for three reliefs, namely, that the 2004-Will is null and void, illegal and inoperative and it had no adverse effect on the 1991-Will; that the plaintiffs be declared that the 1991-Will has been executed by Smt. Punaya Kirti Sharma out of her own free will which has been validly registered and the defendant be restrained by means permanent injunction not to interfere in the use of suit house by the plaintiffs' according to their will. Lastly it has prayed that the defendant be restrained to alienate the suit property on the basis of null and void 2004-Will. It is the substance of the plaint allegations and not the form, which would be considered for deciding the controversy in this appeal. The plaintiffs have not only prayed for declaring the 2004-Will as null and void, but also seek declaration about the validity of the 1991-Will and consequent permanent injunction against the defendant. They further expect from the Court that the declaration under the decree be also intimated to the office of the Registrar, Ghaziabad.;