ORDER :- This revision is directed against the order of the learned Civil Judge, Bara Banki, rejecting the report of the applicant, the Chief Commissioner of" Stamps, U.P. made in a declaratory suit. The Chief Inspector claimed that the plaint was taxable under S.7(iv-A), Court-fees Act and there was a deficiency of Rs.615/10/- in the court-fee stamp. The plaintiff who is the liquidator of the Bank of Upper India Ltd., prayed for the following reliefs in his suit :

(a) A declaration to the effect that a previous decision of the District Waqf Commissioner, Bara Banki, was ultra vires, erroneous and bad;

(b) A declaration that there is no such waqf as was found by the District Waqf Commissioner, Bara Banki, to have been constituted under the will of Chaudhri Sarafraz Ahmad.

(c) Award of costs of the suit, and

(d) Such further and other reliefs as the nature of the case may justify or demand.

2. From the allegations contained in the plaint it would appear that Chaudhri Sarfaraz Ahmad who was the taluqdar of Bhilwal, Khanpur and Sikandarpur taluqas within the meaning of the Oudh Estates Act (1 of 1869) executed a will on 3-5-1870, expressing a desire that a sum of Rs.2000/- per annum should be spent out of the income of the property bequeathed to Chaudhrain Bechunnissa on certain specified objects. It was said that after the death of Chaudhri Sarafraz Ahmad the will failed to take effect in view of the fact that it offended against the provisions of S.13 of the aforementioned Act, and that the Bank of Upper India, Ltd., became the owner of the properties covered by the will. On account of the claim made by Chaudhri Shnfiquzzaman Khan the present taluqdar of Bhilwal, to the effect that the sum of Rs.2000/- which under the will was to be given for certain specified objects constituted a waqf. A notice under S.4, Muslim Waqfs Act was issued to the plaintiff and the District Waqf Commissioner in spite of the liquidators objection came to the conclusion that the claim was correct and the Central Board thereupon issued a notification in the official gazette regarding the existence of the waqf so declared. The liquidator of the Bank of Upper India Ltd. maintained in the present case that this decision was wrong for various reasons. One of the points urged in this connection was that the existence of a waqf and the validity of the will being denied, the District Commissioner of Waqfs had no jurisdiction to decide the matter in controversy, the matter being within the exclusive jurisdiction of the Civil Courts.

3. The Chief Commissioner of Stamps was of the view that the suit was in effect for cancellation of the decision of the District Commissioner of Waqfs and for declaring void the will which according to him is an instrument securing property within the meaning of S.7(iv-A), Court-fees Act. Sub-section (iv-A) applies to suits for or involving cancellation of or adjudging void or voidable -

(a) a decree for money or other property having a market value, or

(b) an instrument securing money or other property having such value.

The applicant considered that the case fell under the second of the two categories mentioned above. In other words he maintained that the decision of the District Waqf. Commissioner as well as the will of Chaudhri Sarafraz Ahmad constituted an instrument securing money or securing property.

4. The learned Civil Judge repelled the contention of the Chief Inspector holding that inasmuch as the Commissioners decision only interpreted the will and did not by its own force create the alleged waqf, it could not be deemed to be an instrument securing either money or property. This part of the decision of the Court below is no longer disputed. So far as the prayer for a declaration that the will is void is concerned, the learned Civil Judge held that the will being merely a legal declaration of the testators intention with respect to his properties which he desired to be carried out after his death, it cannot be regarded as an instr

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