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:
21&¼v½ ;g fd U;k;ky; dh fMdzh ?kks"k.kkRed cgd oknh fo:) bdjkjh izfroknh bl vk'k; dh ikfjr dh tkos fd olh;r fnukad 16&7&2004 'kwU;] fu"izHkkoh] voS/k o fcuk LosPNk Lo0 Jhefr iq.; dhfrZ 'kekZ rgjhj o fu"ikfnr gqbZ gS vkSj mDr olh;r ls olh;r fnukad 17&1&91 ij dksbZ izHkko ugha gS vkSj olh;r fnukad 17&1&91 ds vuqlkj gh e`rd iq.; dhfrZ 'kekZ dh lEikfRr dks oknhx.k ikus ds vf/kdkjh gS rFkk olh;r fnukad 16&7&2004 dks 'kwU; o voS/k ?kksf"kr djus ds mijkUr nQ~Rj jftLVªh xkft;kckn dks Hkh lwfpr fd;k tkosA ¼c½ ;g fd gqDe bErukbZ fu"ks/kkKk fo:) izfroknh bl vk'k; dh ikfjr fd;k tkos fd izfroknh fookfnr Hkou ds-ds-&160] dfouxj] xkft;kckn dks oknh dh LosPNkuqlkj iz;ksx djus esa rFkk fookfnr Hkou dks 'kwU; o voS/k olh;r fnukad 16&7&2004 ds vk/kkj ij fdlh dks gLrkarfjr djus ls oafpr jgsA 21&¼d½ & ;g fd U;k;ky; dh fMdzh ?kks"k.kkRed cgd oknhx.k bl vk'k; dh ikfjr dh tkos dh Jhefr iq.;dhfrZ 'kekZ dh olh;r fnukad 17&1&91 oS/k olh;r gS tks muds }kjk viuh bPNk ls rgjhj o rdehy o jftLVªh dh gSA 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)...................."
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.
The case of Suhrid Singh @ Sardool Singh (supra) before the Apex Court pertained to declaration of the sale deeds to be void and not binding on the co-parcenary and for the consequential relief of joint possession and injunction. There was no prayer for cancellation of the sale deeds. Plaintiff in the suit was not the executant of the sale deeds, so it was held that the court-fee would be computable under 7 (iv)(c) of Court Fees Act. This case pertains to State of Punjab. In U.P. Several amendments have been made in Court Fees Act since 1938 and for the purpose of this case, Section 7 (iv-A) has been added in the statute, which relates to 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. No doubt the plaintiff in the case before the Apex Court had prayed for declaration of a will dated 14.7.1985 and its codicil dated 17.8.1988 as void and non-est 'qua the co-parcenary', but the limited question that was considered by the Hon'ble Court was as to what is the court-fee payable in regard to the prayer for a declaration that the sale deeds were void and not 'binding on the co-parcenary', as well as for the consequential relief of joint possession and injunction. The question whether the 'will' is an instrument which secures the property for beneficiary concerned, was not raised and considered. The Apex Court with regard to payment of court-fee on the relief for declaration that the sale-deeds were null and void, ruled that the court-fee was computable under section 7(iv)(c) read with section 7(v) of the Act. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof. In these circumstances on account of distinguished facts and points for consideration, the case of Surhid Singh (supra) does not help the appellant at all.
The consistent view of this Court has been that in a suit for a declaration that the Will was null and void or non-est, the Will, being an instrument for securing money and other property having a market value, the court fee payable is under Section 7(iv-A) of the Act and not under Article 17 (iii). These observations have been made by a division bench of this Court in the case of Kailash Chand Vs. Vth A.C. Judge, Meerut and others 1999 All LJ 940. In the case of Udai Pratap Gir and another Vs. Shanti Devi and others AIR 1956 All 492 another division bench has held that a will is an instrument securing property within the meaning of Court Fees Act. These observations were approved by Full Bench of this Court in the case of Smt. Bibbi and another Vs. Shugan Chand and others AIR 1968 Allahabad 216. Reference may also be made to yet other recent division bench decisions of this Court. In the case of Shyamal Kumar Ghosh and others Malay Ghosh and others AIR 2009 All 165 and Smt. Rajni Swami Vs. Smt. Shakuntla Sharma 2009 (6) ADJ 63 (DB), wherein on similar set of facts the plaintiffs were directed to pay ad valorem court fees within a period of one month failing which Section 6-A(2) of Court Fees Act will be squarely applicable in the case of the plaintiffs. In the instant suit also the plaintiffs sought relief of declaration to declare the 2004-Will as void document and further declaration to the effect that 1991-Will was validly executed by Smt. Punaya Kirti Sharma out of her own free will and relief of permanent injunction was also sought by the plaintiffs. In this way the plaintiffs not only want declaration of their right, title or interest in the house but they have sought declaration to dis entitle the defendant to have fruits of the 2004-Will in her favour. In this connection observations of this Court in para-14 of the report of Smt. Ranjni Swami (supra) are noteworthy, which are as under:
"14. .......There is a big gap between the declaration simplicitor and relief in the garb of declaration. If a person makes a prayer to declare right, title or interest of a property in his favour then it can be construed as declaration simplicitor but when a plaintiff seeks any declaration to dis entitle others right into a property, such type of circumvent prayer cannot be treated to be declaration simplicitor. In other words, he is not asking any relief for himself but want to prevent his opponent from enjoying fruit of the property. Therefore such type of relief is virtually in the nature of injunction at first with the nomenclature of 'declaration'. Therefore, it is required for the Court to go into the real nature of dispute arising out of the plaint to ascertain the cause and incidental cause which helps it. A will is execution of document of a testator to give his property to a person of his choice. Such will, will be enforceable only after the death of the testator. In some of the States of India, grant of probate by the appropriate Court of law on the will is compulsory and some of the State is optional. In the State of U.P., to obtain probate on the will is optional, therefore, as soon as the testator dies and will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such will. If such person seeks a probate before the Court by filing it, no question of ad valorem court-fee will be applicable but it will be paid as soon as Court will grant such probate in his favour. In the present case, the defendant/respondent never approached to the Court to obtain a probate but enjoying the property as successor under a will. Now if such will is declared by the Court as null and void, right of the person in the property or properties under the will, will be extinguished. Therefore, the principle of securing property under the will, will be attracted. Therefore, under, no stretch of imagination we can hold and say that the suit can be entertained on the basis of the fixed Court-fees."
Now as regards the argument of learned counsel for the appellant with regard to applicability of Article 17 (iii) Court Fees Act is concerned, it would be useful to quote para-10 of the report of Kailash Chand's case (supra), which is reproduced as under:
10. On a bare perusal of Article 17 (iii), it would appear that this Article shall be applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. The question is whether in case where a decree declaring the will as null and void is sought, there is any provision under the Court Fees Act to cover the question of payment of Court Fees on the relief of such declaration. In case the answer to the question is that there is no other provision under the Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will on the question of payment of court fees, then Article 17 (iii) of Schedule II of the Court Fees Act shall be applicable and if such relief is covered by any other provisions of the Court Fees Act, then provisions of Article 17 (iii) of Schedule II will not be applicable. Careful reading of Section 7 (IVA) makes it abundantly clear that it also covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The question, therefore, is whether a will would be treated as an instrument securing money or other property having such value. This question specifically arose before the Full Bench of this Court in the case of Smt. Bishnu Shri v. Smt. Suraj Mukhi and others AIR 1966 All 563 (supra). The Majority view of the Court after considering the provisions of Indian Succession Act and the Court Fees Act was that the word 'instrument' in Section 7 (iv-A) includes formal or legal documents in writing. It is sufficiently broad to include wills also. In para 7 the Court held that :
"The question is whether a will can be regarded as a legal document which makes any property secure or safe. Section 2(h) of the Indian Succession Act define a will as a "legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. It is well known that during the life-time of the executant, the will Is ambulatory. It could be revoked by him at his will. Accordingly a will does not secure any property during the lifetime of the executant. Section 7 (iv-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an Instrument secures money or property having money value within the meaning of Section 7 (iv-A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this section with Section 39 of the Specific Relief Act. If this is so. we think, then there is little doubt that on the date of the institution of the suit in this case the will did secure property."
'The Court further held that :
"the word "securing" is the present participle from of verb "to secure". It has got various meanings (Words and Phrases) (Permanent Edition), Vol. 38 page 45-8) "Secures" as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the vendee secures the payment of purchase money, means not a payment in money but the giving by the vendees of something by means whereof payment at some future time can be procured or compelled (Ibid), Webster defines "secures" to mean "to make certain" "to put beyond hazard". To secure" is to make safe, to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage ; it also means to get safely in possession, to obtain to acquire certainly, as to secure an inheritance or a price [Ibid 459)."
In the instant case both the wills mentioned by the plaintiffs (one in their favour and the other for the defendant) in the plaint were allegedly executed by Smt. Punaya Kirti Sharma, who has died on 11.12.2004. After the death of parties' mother Smt. Punaya Kirti Sharma the will executed by her becomes operative, therefore, in view of the above legal position, the will is an instrument securing property having money value, so court fee would be payable according to S. 7 (iv-A) and not under Article 17(iii) of the Court Fees Act.
As a result of the foregoing discussion, we find that there is no force in the arguments advanced on behalf of the appellant. The learned trial Court has not committed any factual or legal error in the impugned order. The appeal has no merits and is accordingly dismissed. Consequently, the appellant is directed to deposit the ad valorem court-fee, as directed by the learned trial Court within a period of one month from today, failing which the consequences of Section 6-A(2) of Court Fees Act would follow. No order as to costs.
Order Date :- 27.8.2012 Imroz