LODHA, J.—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. Learned counsel for the petitioner has urged that the plaintiff-petitioner was not a party to the document, which he seeks to be declared void and, therefore, properly speaking it is not a suit for cancellation of the will but is one for pure and simple declaration. It is, therefore, urged by him that the suit is maintainable on a fixed court-fee of Rs. 25/- under sec. 24(e) of the Rajasthan Court Fees and Suits Valuation Act, 1961, and that sec. 38 has no application to the present case. There is no gainsaying the fact that if sec. 38 is applicable to the present suit, as held by the court below, the plaintiff would be undoubtedly liable to pay ad valorem court-fee on the value of the subject-matter of the suit.

4. In order to appreciate the contention raised on behalf of the parties it would be proper to reproduce here the relevant portion or sec. 38:—

"S. 38. Suit for cancellation of decrees etc.—

(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable pro-party, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be—

(a) if the whole decree or other document is sought to be cancelled the amount of the property for which the decree was passed or other document was executed; and

(b) If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property."

5. Now the question is whether the present suit is for cancellation of a document, as envisaged under sec. 38 of the Act. Learned counsel for the respondent has placed strong reliance on Hukam Singh vs. Musammat Gyan Devi(l), Charan Das vs. Jamna Devi(2), B

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