Hon’ble Anil Kumar Sharma, J.—Challenge in this appeal is to the order dated 21.5.2011 passed by Additional Civil Judge (S.D.), Court No. 2, Ghaziabad in O.S. No. 859 of 2006 whereby issue No. 8 regarding payment of Court-fee has been decided against the appellant and she has been directed to pay ad voleram Court-fee on relief-A at Rs. 40.0 lacs.

2. Facts germane to the appeal are that the plaintiff-appellant filed aforesaid suit for declaration that the will dated 16.7.2004 (the 2004-Will) is void, ineffective and had been executed without free will of Smt. Pushp Kirti Sharma and the plaintiff is entitled to get suit property according to will dated 17.1.1991 (the 1991-Will) and the declaration of the Court be intimated to Sub-Registrar, Ghaziabad. The plaintiff further sought relief of injunction restraining the defendant from interfering in plaintiff’s possession over house No. KK-160, Kavi Nagar, Ghaziabad and she be restrained from alienating the house on the basis of the 2004-Will. By way of amendment in the plaint, the plaintiffs further sought declaration to the effect that the 1991-Will executed by late Smt. Punay Kirti Sharma is valid and had been executed by her own free will. The plaintiff has paid Court-fee of Rs. 200/- on declaratory relief-A and Rs. 500/- on the relief-B of injunction. The defendant objected to the payment of Court-fee on the ground that the plaintiff is required to pay ad valorem Court-fee according to the market value of the house in suit as provided under Section 7(iv)(A) of Court Fees Act because she had not claimed simple declaratory relief with regard to the 2004-Will in favour of the defendant, but she has also prayed for consequential relief of injunction and further by way of amendment has sought for adjudging the 1991-Will is valid one.

3. We have heard the learned counsel for the parties at length and perused the record and well as the law cited at the Bar.

4. Before we proceed to discuss the arguments of parties’ counsel, it would be appropriate to quote the relief claimed by the plaintiff-appellant in the suit, which is as under:

21&¼v½ ;g fd U;k;ky; dh fMdzh ?kks"k.kkRed cgd oknh fo:) bdjkjh izfroknh bl vk’k; dh ikfjr dh tkos fd olh;r fnukad 16&7&2004 'kwU;] fu"izHkkoh] voS/k o fcuk LosPNk Lo0 Jhefr iq.; dhfrZ 'kekZ rgjhj o fu"ikfnr gqbZ gS vkSj mDr olh;r ls olh;r fnukad 17&1&91 ij dksbZ izHkko ugha gS vkSj olh;r fnukad 17&1&91 ds vuqlkj gh e`rd iq.; dhfrZ 'kekZ dh lEikfRr dks oknhx.k ikus ds vf/kdkjh gS rFkk olh;r fnukad 16&7&2004 dks 'kwU; o voS/k ?kksf"kr djus ds mijkUr nQ~Rj jftLVªh xkft;kckn dks Hkh lwfpr fd;k tkosA

¼c½ ;g fd gqDe bErukbZ fu"ks/kkKk fo:) izfroknh bl vk’k; dh ikfjr fd;k tkos fd izfroknh fookfnr Hkou ds-ds-&160] dfouxj] xkft;kckn dks oknh dh LosPNkuqlkj iz;ksx djus esa rFkk fookfnr Hkou dks 'kwU; o voS/k olh;r fnukad 16&7&2004 ds vk/kkj ij fdlh dks gLrkarfjr djus ls oafpr jgsA

21&¼d½ & ;g fd U;k;ky; dh fMdzh ?kks"k.kkRed cgd oknhx.k bl vk’k; dh ikfjr dh tkos dh Jhefr iq.;dhfrZ 'kekZ dh olh;r fnukad 17&1&91 oS/k olh;r gS tks muds }kjk viuh bPNk ls rgjhj o rdehy o jftLVªh dh gSA

5. The learned counsel for the plaintiff has argued that Section 2(h) of Indian Succession Act, 1925 defines ‘will’ as “declaration of the intention of testator with respect to his property which he desires to be carried into effect after his death.” Thus, a ‘will’ is the legal instrument that permits a person, the testator, to make decisions as to how his estate will be managed or distributed after his death. Learned counsel for the appellant has referred to Section 3 of Transfer of Property Act, where an ‘instrument’ has been defined as a “non-testamentary instrument”. He has tried to convince us that a will is not an instrument as contemplated under Section 7(iv-A) of the Court Fees Act and thus fixed Court fee would be paid according to the provisions of Schedule-II Article 17 (iii) of the Act and there is no deficiency in payment of Court-fee. Contra learned counsel for the r