SUDHA SHARMA Vs. SHASHI BALA SHARMA

JUDGEMENT

(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.

(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'.