A will is an instrument securing property having money value and that Section 7 (IV-A) of the Court Fees Act (as applicable to the State of U. P.) was attracted.

( 1 ) 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. 00 (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:-Whether the suit is undervalued and the Court fee paid is insufficient?

( 5 ) 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.

( 6 ) WE have heard Sri Anurag Khanna, learned counsel for the appellant at length and Sri Krishna 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.

( 7 ) 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, 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 plaintiffs 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 up