SHANTILAL AGARWAL Vs. RAMA BAI

JUDGEMENT

(1.) THIS revision application by the plaintiff raises a question of court-fee. The plaintiff Shantilal Agarwal filed a suit in the Court of Civil Judge, Dholpur for declaration that the will dated 5-7-63 registered on 4-9-63 executed by his father late Shri Shyamlal and his mother Smt. Champa Devi, defendant No. 1, was void and ineffective as against the plaintiff. Shyamlal had died before the institution of the suit, Smr. Champa)Devi was alive and was impleaded as defendant No. 1. The suit was filed on 3-7 67 and Smt. Champa Devi died some time in 1971. The validity of the will was challenged mainly on the grounds that the testator Shyamlal was not in a sound disposing mind at the time of executing the will, that the will had been got executed by undue influence, fraud and coercion, and that in any case Shyamlal had no right to dispose of the ancestral and joint family property by making a will in respect of it and thereby deprive the plaintiff of his legitimate share in it. The suit was resisted by the defendant and an objection was also taken that the court-fee paid was insufficient. Fixed court-fee of Rs. 25/- was filed with the plaint under sec. 24 of the Rajasthan Court Fees and Suits Valuation Act, 1961, read with Schedule II, Art. 17 (iii) of the Indian Court Fees Act. The defendant pleaded that the valuation of the subject matter involved in the will was Rs. 21,00,000/- and, therefore, ad valorem court-fee was payable on this amount. The learned Additional District Judge, Dholpur, by his order dated 31st October, 1972, held that the plaintiff was liable to pay ad valorem court fee on 5,25,000/- and granted time to the plaintiff to the make up the deficiency in court-fee by 25th November, 1972. The plaintiff applied for review of this order but was unsuccessful. The time for paying the deficit court-fee was however extended upto 19th January, 1973.

(2.) AGGRIEVED by the order dated 31st October, 1972 and the order dated 5th January, 1973, passed on review application, the plaintiff has filed this revision application. The revision application is within limitation from the date of the original order.

(3.) IN Kattiya Pillai vs. Ramaswamia Pillai (6) the plaintiff in his suit alleged that a will put forward by the defendant was a forgery and prayed in his plaint (1) that the will may be declared to be forgery; (2) that it may be cancelled; and (3) that the order of the Sub-Registrar registering the will may also be cancelled. It was held that in regard to court-fee payable, the provision applicable to the case is not sec. 7 (iv) A or sec. 7 (iv) (cj) but Sch. 2, 17-A (1), because the suit must be treated as one for declaration without consequential relief.