RAJNI SWAMI Vs. SHAKUNTALA SHARMA

JUDGEMENT

(1.) THIS appeal is arising out of order impugned passed by the addl. Civil Judge (Senior Division), Court no. 2, Meerut dated 9th February, 2009 directing the plaintiff-appellant to deposit ad valorem Court-fee in proceeding with the suit.

(2.) BEING aggrieved/dissatisfied with the order impugned, Mr. Mukhtar Alam, learned counsel appearing for the appellant contended before this Court that the suit is in the nature of declaration simpliciter, therefore, fixed Court-fee, as prescribed under article 17 (iii) of Schedule-II of the Court Fees act, 1970 will be applicable in this case. But the Court below, under the order impugned, wrongly and erroneously held that the plaintiff-appellant is required to be paid ad valorem fees.

(3.) ON one hand the nature of relief, as appears from the plaint, is that a Will executed by the testator in favour of the defendant-respondent is declared to be null and void on the other hand Sri Rahul mishra, learned counsel appearing for the defendant-respondents contended before this Court that the plaintiff-appellant is required an order which in effect wanted to get right over the property inherited by him on the basis of the Will and as such, the suit is not made for declaration simplicitor but coupled with the right, title or interest over and above such property, therefore, the court fees under Section 7 (IV-A) is required to be paid to obtain said order.