P.K Jain, J.:— Short question involved in this appeal under Section 5-A of the Court Fees Act, 1870 as amended by J.P Act. No. XIX of 1938 whether under the facts of the present case the Court fee is payable by the plaintiff under Section 7(IV-A) or under Article 17(iii) of Schedule II of the Court Fees Act.
2. For determination of the controversy in hand the facts in short are that plaintiff-appellant filed suit No. 680 of 1996 against the respondents alleging that Sri Musuddi Lal the common ancestor of the plaintiff and defendants created Hindu undivided family during his life time and was Karta of the said family. The suit property belonged to the Hindu Undivided family. The said Musuddi Lal was never exclusive owner of the said property. He died of cancer on 14-12-1988 Defendant No. 2 sent a notice dated 14-5-1996 to the sons of the plaintiff alleging execution of will date 11-8-1988 by the said Musaddi Lal and defendant No. 2 under the said will claimed to be the owner and landlord of shop No. 431 Karai Ganj, Rajban Bazar, Meerut Cantt. By the said suit the plaintiff challenged the will as being forged and fabricated and also on the ground that the property being H.U.F property and Sri Musaddi Lal being only Karta of the family had no right to execute the will in respect of the said property. The main prayer made by the plaintiff was for declaring the will null and void by a decree of declaration. The plaintiff-appellant valued the suit at Rs. 10 lacs and paid Court fee Rs. 200/- (payable under Article 17(iii) of Schedule-II of the Court Fees Act).
3. The defendants challenged the valuation of the suit and further disputed the sufficiency of the Court fee. Their claim was that Court fee payable was on the valuation of the property involved in view of the provisions contained under Section 7(iv-A) of the Court Fees Act as amended by U.P Act No. XIX of 1938.
4. On the aforesaid pleadings the trial Court framed issue No. 1 to the following effect:—
5. Whether the suit is undervalued and the Court fee paid is insufficient?
6. After hearing parties counsel at length and considering the law cited before the trial Court it held that the suit is not under-valued but the Court Fee paid was insufficient as the trial Court was of the view that the Court fee was payable under Section 7(iv-A) of the Court Fees Act as amended by U.P Act No. XIX of 1938.
7. We have heard Sri Anurag Khanna, learned counsel for the appellant at length and Sri Kri shna Pratap learned counsel for the respondents and with the consent of the parties the appeal is being, finally disposed of at the admission stage itself.
8. Shri Khanna has vehemently argued that the appellant was in possession of the suit property and he simply challenged the validity of the will executed by the said Musaddi Lal on grounds that he had no right to execute the will and that it was forged and fabricated and no other relief except declaration of the will as null and void was needed. It is further submitted that the question of payment of Court fee has to be decided on the plaint allegations and the relief claimed by the plaintiff-appellant and not on the basis of the pleas taken by the defendants in their written statements. In support of his submission Sri Khanna has placed reliance on Mula v. Godhu, (1969) 2 SCC 653 : AIR 1971 SC 89 and Smt. Shefali Roy v. Hero Jaswant Dass, 1992 All WC 1000 : (AIR 1992 All 254) (a Division Bench judgment of this Court). Learned counsel for the respondents has strenuously contended that on the facts of the present case provisions of Section 7(iv-A) of the Court Fees Act as amended by U.P Act No. XIX of 1938 are attracted and since the will in question amounts to an instrument securing property having money value and plaintiff's Predecessor-in-title was party to the instrument the Court fee payable shall be according to the market value of the subject matter of the suit. Learned counsel for the respondent has placed reliance upon full Bench decisions of this Court reported in, AIR 1958 All 256, Smt. Bibbi v. Shugan Chand and in, AIR 1966 All 563 Smt. Bisnhu Shri v. Fakir Chand, 1986 All LJ 85 (a single Judge decision of this Court.
9. There could be no dispute that for the purposes of determination of the Court fee payable by the plaintiff what is relevant is the plaint which includes averment made in the plaint and the relief sought and not what is stated in the written statement. We may refer to the decisions of the Hon'ble Supreme Court reported in, (1980) 2 SCC 247 : AIR 1980 SC 691 Neelavathi v. Godhu Natrajan and (1994) 4 SCC 349 Ram Narain Prasad v. Atul Chander Mitra. In both these cases it was held that the question of Court fees must be considered in the light of allegations made in the plaint and its decision cannot be influenced by the pleas taken by the defendants in their written statements or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as whole.
10. Before we deal with the controversy in hand it would be necessary to reproduce Section 7(iv-A) of the Court Fees Act (as applicable to the State of U.P) as also Article 17(iii) of Schedule-II of the Court Fees Act:—
“(iv-A). For cancellation of adjudging void instruments and decree-in suits 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 or 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 in property in respect of which the decree was passed or the instrument executed, and
If only a part of the decree of instrument is involved in the suit, the amount or value of the property to which such part relates. Explanation - The value of the property for the purposes of this sub-section, shall be the market value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B) as the case may be.”
Article 17(iii) of Schedule-II of the Court Fees Act.
“17. Plaint or memorandum of appeal in each of the following suits;
(i) ---------------------------
(ii) ---------------------------
(iii) 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) -------------”
11. 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(iv-A) 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. Bishun Shri v. Smt. Suraj Mukhi (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 lifetime 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 (para 6):—
“the word “securing” is the present participle from 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).”
12. The view taken with regard to the meaning of the expression ‘securing’ occurring in Section 7(iv-A) of the Court Fees Act was approved by the subsequent Full Bench decision in Smt. Bibbi v. Shugan Chand (AIR 1968 All 216) (Supra) although, AIR 1966 All 563 was not specifically referred. The Court after considering a number of decisions of this Court held in para 9 as follows (at P. 219 of AIR):
“it appears to be clear that the expression securing in Section 7(iv-A) of the Court Fees Act connotes making safe or certain. Surely, the expression must have the same connotation in relation to all the things spoken of in the section and if it is the above connotation that has to be ascribed it in relation to ‘money’ it must bear a similar connotation in relation also to ‘other property having such value.’ Further, the words other property having such value obviously cover immovable property as well ------- The only sense in which an instrument may be regarded as securing immovable property is that it makes the title thereto or its possession and enjoyment safe or certain.---------. A sale deed ‘assures’ in the most effective manner the divesting of the title of the transferor in a property and the vesting of that title in the transferee and where the sale of a property can take place only by means of a deed it is the sale-deed alone that ‘assures’ the extinction of the transferor's interest and the acquisition of that interest by the transferee. In my opinion, therefore, a sale-deed is an instrument securing property within the meaning of Section 7(iv-A) of the Court Fees Act.”
13. The decision in, AIR 1968 All 216 Full Bench was followed in the subsequent single Judge's decision in, Bina Rani v. Fakir Chand's case (1986 All LJW 86) (Supra). That was a suit in which declaration was sought by the plaintiff that the plaintiff was owner of the suit land alleged to have been bequeathed to her by a will, a subsequent will was averred to have been executed in favour of the defendant and no specific relief was claimed in the plaint in respect of that subsequent will and there was only an averment that in face of will alleged to have been executed in her favour the subsequent will was void. The Court held that a declaration as to the validity of that subsequent will or cancellation thereof on ground that it was void had to be regarded as implicit for the relief for declaration claimed because the relief claimed was for declaration of title and unless the subsequent will was declared as null void the suit of the plaintiff for declaration should not be decreed. The Court held that the will was an instrument which secures the property for beneficiary concerned.
14. There is no dispute that Musaddi Lal testator of the will had already died at the time of the institution of the suit. Therefore, in view of the decision in, Smt. Bishun Shri's case (AIR 1966 All 563) (FB) (Supra) the will would be a document securing property having money value. Things would have been different in case the suit was filed during the life time of the testator of the will and the will had not come in effect. In that eventuality the will could not have been treated to be a document securing property having money value as the testator had a right to cancel the will by executing another will or by transferring property involved in the will to some other person or by specifically revoking the will.
15. Learned counsel for the appellant has, however, vehemently argued that after the Full Bench decision reported in, AIR 1966 All 563 as well as AIR 1968 All 216 (Supra) the Hon'ble Supreme Court had occasion to decide the question if in a suit for mere declaration whether Section 7(iv-A) is applied or not. It is submitted that in case of State of U.P v. Ram Krishan Burman, (1970) 1 SCC 80 : AIR 1971 SC 87 the Hon'ble Supreme Court ruled that a suit for a mere declaration that the plaintiff is a owner of certain properties does not fall under Section 7(iv-A) of the Court Fees Act (applicable to the State of U.P) That was a case in which the plaintiff instituted a suit for declaration that he was owner in possession of the estate left by one Dhan Devi. The suit was decreed ex parte. The defendant Ram Krishan Burman filed suit No. 14 of 1956 in the Court of Civil Judge, Jaunpur against Sri Radhey Lal (plaintiff in the earlier suit) claiming that he was appointed heir of Smt. Dhan devi of the properties described in the lists B, J & D in the plaint. It was further stated that dispute concerning inheritance to the estate left by Smt. Dhan Devi was settled between him and Radhey Lal and that Radhey Lal admitted his title to the properties in Lists B, J & D and it was agreed that in the properties in Lists A, B, J & D Radhey Lal had 11/16th share and that he had 5/16th share, that a memorandum was drawn up in that behalf, and that Radhey Lal represented to him that a compromise decree will be obtained in that suit, but thereafter taking advantage of his ignorance Radhey Lal obtained a decree ex parte. The substantive reliefs claimed by the plaintiff is as follows:—
(a) that a declaratory decree in favour of the plaintiff and against the defendants declaring the plaintiff as the owner of the properties in Lists A, B, J & D be passed;
(b) in case in the opinion of the Court prayer (a) cannot be granted then, alternatively, declaraing the plaintiff as the owner of properties in B, J & D being the stridhana of Rani Dhan Dei Kaur be issued, decree in suit No. 4 of 1950 has no adverse effect on the rights of the plaintiff.”
16. The suit was valued at approximately Rs. 6 lacs but on the footing that the plaintiff had claimed a mere declaration Court fee under Schedule-II clause 17(iii) of the Court Fees Act was paid. The Inspector of Stamps reported to the Civil Judge that the case fell within Section 7(iv-A) as incorporated by the U.P State Legislature and the Court fee was chargeable according to the Value of the subject-matter of the suit and the plaintiff was liable to Court fee accordingly.
17. When the matter came up before Hon'ble Supreme Court there was no dispute that the relief as claimed by the plaintiff involved declaration adjudging void the decree in suit No. 4 of 1950 in which by an ex parte decree Radhey Lal was declared to be owner in possession of the estate of Smt. Dhan Devi. It was argued in appeal on behalf of the State of U.P that the reliefs claimed fell within Section 7(iv-A) of the Court Fees Act since the expression. “decrees for money or other property” does not mean a decree awarding money or other property, but a decree concerning or relating to money or other property. It was also argued that where the Court declares the plaintiff's title or other property simpliciter, the decree is one for money or for other property. This contention on behalf of the State of U.P was repelled by the Hon'ble Supreme Court and it was held that ((1970) 1 SCC 80 : AIR 1971 SC 87 at P. 89):—
“a decree for declaration of title to money or other property is not a decree for money or other property. In our judgment the expression “decree for money or other property” means only a decree for recovery of money or other property. It does not include a decree concerning title to money or other property. ------- But a decree in invitum is not an instrument securing money or other property; such a decree is a record of the formal adjudication of the Court relating to a right claimed by a party to a suit. It does not by its own force, secure money or property.
18. Thus on facts the decision of the Hon'ble Supreme Court in State of U.P v. Ram Krishan Burman ((1970) 1 SCC 80 : AIR 1971 SC 87) does not apply to the present case. That was a case in which the Court has held that a decree declaring the title to the money or other property is simply a record of formal adjudication relating to a right claimed by the parties to the suit and does not amount to an instrument securing money or other property having market value and it was on such finding that the Supreme Court held that Section 7(iv-A) of the Court Fees Act (as applicable to the State of U.P) was not attracted and the Court fee payable was under Schedule-II Article 17(iii).
19. Learned counsel for the appellant has also relied upon the Division Bench decision of this Court in Smt. Shefali Roy (AIR 1992 All 254) (supra). That was a case in which plaintiff-appellant brought an action for declaration that the sale-deed executed by defendant-respondent No. 1 in favour of other respondents are not binding on her on the ground that she was owner of the plot in suit and that when she wanted to dispose of her aforesaid agricultural holdings she came to know of the forgery practised upon her by respondent No. 1 who executed a registered sale-deed in favour of respondent No. 3 without any consent of the plaintiff-appellant for a meagre amount of Rs. Two lacs whereas the property valued at Rs. 12 lacs. She also averred that she has not executed any power of attorney in favour of respondent No. 1 During hearing of the appeal the respondent raised a new ground that proper Court fee i.e 1/5th of the value of the subject-matter had not been paid by the plaintiff in accordance with the amended provisions of Section 7(iv-A) (U.P Amendment) of the Court Fees Act. While considering the above plea of the respondent the Division Bench had an occasion to incorporate expression securing occurring in Section 7(iv-A) of the Court Fees Act (U.P Amendment). It was held that this word “securing” is not only related to the money part of the decree but other property as well as used in this provision and therefore, word “securing” relates to recovery or possession of the other property, otherwise putting this word” securing in this provision becomes meaningless. The Court appears to have expressed the view that the word “securing” in the expression other documents securing money or other property having value” means recovery or possession of other property. The Court has referred to the decision of State of U.P v. Ram Krishan Burman, (1970) 1 SCC 80 : AIR 1971 SC 87 and has observed that a suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a declaration that the alleged sale deed be declared null and void does not fall within the ambit of Section 7(iv-A) (State of U.P Amendment). With great respect we are not in agreement with the view expressed by the Division Bench in Smt. Shefali Roy's case (AIR 1992 All 254). So far as the State of U.P v. Ram Krishan Burman's case ((1970) 1 SCC 80 : AIR 1971 SC 87) was concerned we have already pointed out above that in the said case the plaintiff had sought a decree for declaration which also involved a decree of declaration that the decree in earlier suit No. 4 of 1950 was null and void and not binding upon the plaintiff. No declaration of a document as void was involved since the Hon'ble Supreme Court has held that a decree declaring a right is not an instrument securing money or other property having market value. It was no where held that if the relief sought by the plaintiff involved a declaration of an instrument (sale deed or other document creating title) as void or viodable then also Section 7(iv-A) (U.P Amendment) shall not be applicable. A document or an instrument which creates title is certainly a document securing property having money value, a suit involving cancellation or adjudication as void or voidable of such a document it certainly covered by Section 7(iv-A) (U.P Amendment) of the Court Fees Act. This was the consistent view taken by this Court in Full Bench decision in Smt. Bibbi v. Shugan Chand (AIR 1968 All 216) (supra) and Smt. Bishnu Shri v. Smt. Suraj Mukhi (AIR 1966 All 563) (Supra) which are binding upon this Court.
20. We have already held above that so long as the will has not become operative on account of death of the testator the will is not a document or an instrument securing property having money value but once the testator died and a suit is filed after the death of the testator that will become an instrument securing the property having money value. As in the instant case, admittedly the suit has been filed long after the death of the testator the will has become operative and therefore, the will is an instrument or document securing property having money value. Since Section 7(iv-A) (U.P Amendment) specifically provides for payment of Court fee in case where the suit is for or involving cancellation or adjudging void or voidable an instrument securing property having money value, Article 17(iii) of Schedule-II of the Court Fees Act shall not be applicable. In our view, therefore, there is no error in the order passed by the trial Court.
21. Consequently the appeal fails and is hereby dismissed. We, however, make no order as to costs.
22. Appeal dismissed.
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