DESAI, C.J. : This is an appeal from the decision given by the District Judge, Lucknow on an issue in a suit for grant of letters of administration to the estate of one Ram Rakhan. Ram Rakhan died on 5-11-1955 at Lucknow leaving a daughter Smt. Rajeshwari appellant No. 1, three grandsons named Ramesh, Pramod Ravendra (sons of Rajeshwari) and Sheo Rani Devi widow of the predeceased brother Balak Ram, it is said that he and Balak Ram had executed a will on 12/15-5-1945 bequeathing the property left by the survivor of the two to Markardeshwar Mahadeo Trust, which had been created by them on 6-1-1942 in respect of some of their properties. On the death of Ram Rakhan the Trust made an application under Section 278 of the Indian Succession Act in the Court of the District Judge, Lucknow for the grant of letters of administration to the estate of the deceased. The property left by the deceased included money deposited by him in the Allahabad Bank on different occasions. The relations of the deceased mentioned above were made parties to the application. Out of them appellant No. 1 Rajeshwari filed an objection against the application denying the execution, the attestation and the validity of the will, alleging that if any will was executed, it was vitiated by undue influence practised upon the deceased and contending that on the true construction the alleged will was not a will disposing of the property of the deceased to the Trust and was in any case confined to the property existing on the date of the alleged execution and did not govern the property subsequently acquired by the deceased. The learned Judge framed right issues including :

"Issue 4. Whether the will is in respect of all the property left by the executants at their death or only the property possessed by them at the time of the execution of the will ?

Issue 5. Whether issue No. 4 can be raised in this Court ?"

He heard issue No. 5 as a preliminary issue and answered it in the negative, that is, against the objector. This appeal is directed against the finding.

2. Under Section 19-H of the Court-fees Act the District Judge gave notice of the application for letters of administration to the Collector. The Trust had valued the property at Rs. 1,00,000/- while the Collector valued it at Rs. 2,04,065/5/2 on which court-fee of Rs. 8,503/13/- was payable. The learned District Judge on 5-7-1938 passed an order that the Allahabad Bank should remit to him the amount of Rs. 8,503/13/- out of the money deposited by the deceased, it does not appear that the Collector called upon the Trust to amend the valuation to his satisfaction and on its failure to do so moved the learned District Judge to hold an enquiry in the true value of the property. What the learned. District Judge did was to pass an order on 5-7-1958 calling upon the Allahabad Bank to remit to him the sum of Rs. 8,503/13/- out of the money deposited by the deceased. That is the order from which F.A.F.O. No. 59 of 1958 has been filed. In compliance with the order the Bank remitted the sum of Rs. 8,503/13/- to the District Judge. On receipt of the money by the learned District Judge Rajeshwari contended that the Trust had not deposited the court-fee and was not entitled to the letters of administration, in F.A.F.O. No. 59 of 1958 this Court had passed an interim order staying the operation of the order directing the bank to remit the amount of Rs. 8,500/- and odd to the District Judge and laying down that the money should remain in deposit in the bank, on the basis of this stay order it was contended by Rajeshwari that nothing had been deposited for payment of the court-fee on the letters of administration. Actually the bank had remitted the money to the learned District Judge and the learned District Judge on 1-3-1960 rejected the objection of Rajeshwari and proceeded to hear arguments in the suit. F. A. F. O. No. 12 of 1960 is from the order.

3. Ultimately the learned District Judge on 23-5-1960 allowed the Trust's