K. B. Asthana, J. - (1.) SMT . Gindori Bibi filed a Suit No. 44 of 1951 before the District Judge of Mathura against the Trea surer of Charitable Endowments for U. P. and others for a declaration that the plain tiff being the legal heiress of the property left by her husband Sri Beniram Kapoor and the same not being subject to any legal trust for charitable purposes, decree be pass ed divesting the Treasurer of Charitable En dowments of U. P. and the defendants Nos. 2 to 7 of the property given in Sche dule A of the plaint and from management and administration of the same. A decree for rendition of accounts was also claimed. In the plaint it was averred that the death of Sri Beniram Kapoor occurred on 15-9-1943 at Mathura and the plaintiff as his widow and legal heiress suc ceeded to the property left by him and obtained possession of the same. Then a reference was made to a Will hav ing been executed by Sri Beniram Kapoor on 27-3-1934 entrusting the management of his estate to the Collector of Mathura and for payment of cash to his daughter and maintenance to the plaintiff.
(2.) IT was averred that the Will was not validly executed and any trust created there in was illegal and invalid. The relief for declaration was valued at Rs. 70, 000.00 but a Court-fee of Rs. 18/12.00 was paid. The re lief for accounting was- valued at Rs. 200.00and Court-fee of Rs. 19/6.00 was paid. The Inspector of Stamps reported that in his opinion ad valorem Court-fee was payable under Section 7 (iv-A) of the Court-fees Act. The learned Civil Judge, trying the suit held that proper Court-fee was paid and rejected the report. The Chief Inspector of Stamps then came up to the High Court in revision under Sec. 6-B of the Court-fees Act, but the revision was dismissed as the plaint had been amended in the court below. Thereafter the suit proceeded and was dis missed. Smt. Gindori Bibi being unsuccess ful filed a first appeal in the High Court on a Court-fee of Rs. 222.50. The Stamp Reporter of the High Court made a report on 1-7-1966 pointing out a deficiency of Rs. 15, 315.00. The learned Counsel for the plaintiff appellant objected and his objection was considered by the Taxing Officer, who by his order dated 11-8- 1970 rejected the ob jection and upheld the report of the Stamp Reporter. It appears that the relief claimed in the memorandum of appeal was then al lowed to be amended. A fresh report was made by the Stamp Reporter to the effect that besides the decla ratory Court-fee of Rs. 200.00 under Arti cle 17 (iii) of Schedule II of the Court-fees Act the plaintiff-appellant was further liable to pay ad valorem Court-fee of Rs. 7, 7351-under Section 7 (iv-A) on the market value of the property in suit as the relief claimed invoked the cancellation and adjudging void of a will. A deficiency of Rs. 7, 735 was reported. Against the report the learned counsel for the appellant filed an objection claiming that the memorandum of appeal was sufficiently stamped. The Taxing Officer heard the learned counsel for the appellant and by his order dated 13-8-1970 rejected the objection and called upon the plaintiff-appellant to make good the deficiency of Rs. 7, 735.00 in the Court-fee on the memo randum of appeal. On 26-8-1970 the learn ed counsel for the appellant fil ed an application before the taxing Officer praying that the Taxing Officer be pleased to refer the case for final decision to the Chief Justice or any Hon'ble Judge to be appointed by the Chief Justice under Section 5 of the Court- fees Act. The Taxing Officer on the same date passed the following order:- "The Taxing Officer has already given his decision and no question of any reference of the matter to the Court by Taxing Officer arises. The counsel presenting this applica tion insists that it must be accepted by the Taxing Officer. Hence the application is taken from and the above order passed. It is again made clear that the Taxing Officer has no reason to make any reference to the Court as prayed. The application is, there fore, filed."
(3.) SMT . Gindori Bibi then filed a petition under Articles 226 and 227 of the Constitution of India for the quashing of orders passed by the Stamp Reporter and the Taxing Officer in respect of the Court-fee payable on the memorandum of first appeal filed in the High Court by her. A memo randum was also sought for directing the Taxing Officer to refer the question of defi ciency in Court-fee to the Court under Sec tion 5 of the Court-fees Act. [Prs. 1-5];