JUDGMENT 1. This is a plaintiffs appeal under S. 6A of the Court-fees Act. The only question to be determined in this appeal is whether the court below was correct in requiring the plaintiff-appellant to pay the court-fee under Cl. (1) of S. 7 (iv-A) of the Court-fees Act or it should be charged under S. 7 (iv-A) (2). 2. The plaintiffs case, as set out in the plaint, briefly was that one Rameshwar Dayal Shukla out of love and affection which he had for the plaintiff, executed a will dated 29- 11-1966 which was registered on 6-12-1966 whereby he bequeathed premises 119/353, Ram Nagar, Darshan Purwa, Kanpur, to the plaintiff and that the said will was the last will of Rameshwar Dayal Shukla. Rameshwar Dayal Shukla died on 1-9-1967 of stomach ailments. The plaint went on to add that the defendants on the occasion of the funeral ceremony of Rameshwar Dayal Shukla came and started residing in a portion of the premises in suit and subsequently they refused to vacate when the plaintiff asked them to do so. Paragraphs 19 and 20 of the plaint are relevant and are reproduced below : "19. That after the performance of the 13th day ceremony of Shri Rameshwar Dayal Shukla, the plaintiff asked the defendants to vacate the aforesaid accommodation, but they put off on several false excuses and pretexts. The plaintiff therefore was constrained to serve a registered notice dated 10th Oct. 1967 on the defendants, but they failed to vacate the aforesaid portion and denied the ownership of the plaintiff of premises 119/353 and falsely alleged that Shri Rameshwar Dayal Shukla had executed another will dated 20th Aug. 1967 and that under it defendant I was the owner of all properties left by Shri Rameshwar Dayal Shukla. 20. That Shri Rameshwar Dayal, Shukla did not execute any will except the one dated 29th Nov. 1966 referred to above and it seems that defendant 1 in order to serve his illegal end has forged some document purporting to be the will of Shri Rameshwar Dayal Shukla. The said document is forged and fabricated and void and defendant 1 did not and cannot acquire any rights or interest in the properties left by Shri Rameshwar Dayal Shukla, which solely belong to the plaintiff under the terms of the will dated 29th November 1966 of Shri Rameshwar Dayal Shukla." 3. The said document is forged and fabricated and void and defendant 1 did not and cannot acquire any rights or interest in the properties left by Shri Rameshwar Dayal Shukla, which solely belong to the plaintiff under the terms of the will dated 29th November 1966 of Shri Rameshwar Dayal Shukla." 3. The reliefs sought by the plaintiff were that (i) a declaration that he was the sole owner of premises 119/353, (ii) the defendants, their family members, servants and representatives be evicted from premises 119/353 comprising of one small room with Chhajja, verandah, courtyard on the first floor and one room and terrace on the second floor and possession of the same be delivered to the plaintiff; (iii) a decree for pendente lite and future mesne profits or damages for use and occupation at the rate of 50 Paise per day against the defendants till the date of their ejectment; and (iv) costs of the suit be awarded. The plaintiff had originally valued the suit for the purposes of payment of court- fee at Rs. 25,000/- and paid separate court- fee on the above reliefs. 4. The court by its order dated 6-10-1970 held that the valuation of the suit property for payment of court-fee was Rs. 58,320/-. This finding has become final and there is rho dispute about it any more. The court-fee on the amount of Rs. 58,320/- has been paid. 5. In respect of the relief for declaration, the court held that it involved the cancellation or at least adjudging void the will dated 20-8-1967 which was alleged to have been executed by Rameshwar Dayal Shukla in favour of defendant 1, as such the court-fee was payable under S. 7 (iv-A), Court-fees Act, and not under Article 17 ( i) a of the Second Schedule. It was further observed that the order of the court dated 1-1-1970 had been amended by the order dated 6-10-1970. It required the court-fee to be paid on the amount, i.e. Rs. 11,664/-, being ?th of Rs. 58,320/-. The defendants challenged this finding and applied for amendment of their written statement to the effect that the court- fee was to be paid under Cl. (1) of S. 7 (iv-A) and not under Cl. (2) as the predeceassor-in- title of the plaintiff had executed the will and was a party thereto. The amendment was refused by the Court. 58,320/-. The defendants challenged this finding and applied for amendment of their written statement to the effect that the court- fee was to be paid under Cl. (1) of S. 7 (iv-A) and not under Cl. (2) as the predeceassor-in- title of the plaintiff had executed the will and was a party thereto. The amendment was refused by the Court. The defendants went in revision to the High Court which allowed it on 1-3-1973 and the written statement was amended and a new para 38 was incorporated. Paragraph 38 of the written statement runs as under : "38. That the plaintiff has not paid court- fee ad valorem: rather has paid court-fee on ?th of the valuation of the premises in suit. A suit when involves cancellation or adjudging void or voidable an instrument including a will executed by predecessor requires payment of full court-fee as the case falls under S. 7 (iv-A) Cl. (1) and not u./s. 7 (iv-A) Cl. (2) of Court-fees Act. In this view of the matter court-fee paid is insufficient." 6. A fresh issue 12 was framed. The issue was decided by the court and it was held that the court-fee was payable under Cl. (1) of S. 7 (iv-A) of the Court-fees Act and not under Cl. (2) thereof. 7. Aggrieved by the order of the trial court, the plaintiff has preferred the instant first appeal from that order. Section 7 (iv-A) of the Court-fees Act is reproduced below : "7 (iv-A). For cancellation or adjudging void instruments and decree. (1) of S. 7 (iv-A) of the Court-fees Act and not under Cl. (2) thereof. 7. Aggrieved by the order of the trial court, the plaintiff has preferred the instant first appeal from that order. Section 7 (iv-A) of the Court-fees Act is reproduced below : "7 (iv-A). For cancellation or adjudging void instruments and decree. In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value : (1) where the plaintiff or his predecessor- in-title was a party to the decree or the instrument, according to the value of the subject-matter, and 2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be, if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates. Explanation - "The value of the property" for the purposes of this sub-section, shall be the market value, which in the case of immovable property shall he deemed to be the value as computed in accordance with sub-s. (v), (v-A) or (v-B) as the case may be." 8. It has been held in the case of Gulab Chand v. Jaswant Singh, ( AIR 1956 All 71 ) that a will after the death of the testator becomes an instrument securing money or property within the meaning of S. 7 (iv-A) of the Court-fees Act. 9. The learned counsel for the appellant relied upon a decision of Mr. Justice Dhavan in the case of Smt. Gulab Dei v. Chief Inspector of Stamps, U.P., ( AIR 1967 All 153 ). In that case the plaintiff instituted a suit for partition of joint Hindu family property. The defendants set up a will in defence. In her replication, the plaintiff had alleged that her husband had executed no will and if the defendants had any alleged will in their possession, it was a forgery. She pleaded, in the alternative, that it was invalid. The defendants set up a will in defence. In her replication, the plaintiff had alleged that her husband had executed no will and if the defendants had any alleged will in their possession, it was a forgery. She pleaded, in the alternative, that it was invalid. The learned Judge held that there was a vital distinction between asking for a declaration that a document was void and alleging that a document set up by the defendants was forged. The onus was on the party seeking a declaration that the document was void to prove the defect. But the learned Judge went on to hold that where the plaintiff sued for partition of joint Hindu family property and the defendants in defence set up a will and the plaintiff alleged that the deceased left no will, he did not have to ask for a declaration that the alleged will was void. The learned Judge went on to hold that the appellant was not liable to pay additional court-fee under S. 7 (iv-A) of the Court-fees Act in such a case. 10. It is necessary to notice here that the present appeal has proceeded on the footing that S. 7 (iv-A) applies. The case referred to above is a case where the plaintiff had contended and successfully did so that S. 7 (iv-A) did not apply. 11. The next decision relied upon by the learned counsel for the appellant is the case of Chief Inspector of Stamps v. Shri Gopalji Maharaj, ( AIR 1950 All 231 ). In that case the plaintiff had alleged that his predecessor-in- title had made a wakf deed in his favour and thereafter his predecessor-in-title had executed a sale deed in respect of the same property in favour of the defendants. The plaintiff further alleged that the sale deed in favour of the first two defendants was fictitious, bogus and invalid. On these allegations the plaintiff claimed possession over the property in suit and because the plaintiff in para 6 of the plaint had alleged that the sale deed executed in favour of the first two defendants was fictitious, bogus and invalid, it was contended on behalf of the Chief Inspector of Stamps that the Court-fee was leviable under S. 7 (iv-A) of the Court- fees Act and the same was payable over and above the court-fee payable for the relief of possession. This contention was rejected by the learned Judge on the ground that it was not necessary for the plaintiff to have the sale deed adjudged void in order to claim the relief for possession claimed in his suit. This case also falls in the saute category of the cases as the decision of Mr. Justice Dhawan in the case referred to above. 12. Another decision which has been referred to by the counsel is a decision of the Supreme Court in the case of the Vishnu Prataph Sugar Works (P) Ltd. v. Chief Inspector of Stamps, ( AIR 1968 SC 102 ). In that case the plaintiff had sought an injunction restraining the State from realising sugarcane cess and purchase tax charged under the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, the Sugar Cane Cess Act, 1956 read with the U. P. Sugar Cane Cess (Validation) Act. 1961 and the U. P. Sugar Cane Purchase Tax Act, IX of 1961. In the suit, the appellant company alleged, inter alia, that the Acts were invalid and void and, therefore, the State was not entitled to levy, collect or recover the cess or the purchase tax. The appellant Company had paid the court-fee on the said plaint under sub-s. (iv-B) (b) of S. 7 on the footing that the relief was a relief for injunction. The Chief Inspector of Stamps objected to the court- fee being paid under cl. (b) of sub-s. (iv-B) of S. 7 contending that the court-fees payable were as provided under sub-s. (iv) (a) of S. 7 or under sub-s. (iv-A) of S. 7 that is to say on the footing that the suit was for a declaratory decree where consequential relief prayed for was an injunction or on the footing that the suit involved cancellation of or adjudging void an instrument securing money or other property having such value. The High Court rejected the contention of the Chief Inspector of Stamps that S. 7 (iv-A) (a) applied but held that S. 7 (iv-A) applied as the said acts were instruments securing money within the meaning of that sub-section and held that though the relief claimed was an injunction. in substance and effect the suit involved adjudgment of the said Acts as void. The Supreme Court held that the Acts were not 'instrument' and so S. 7 (iv-A) did not apply. in substance and effect the suit involved adjudgment of the said Acts as void. The Supreme Court held that the Acts were not 'instrument' and so S. 7 (iv-A) did not apply. The Court went on to observe as follows p. 105) : It is true that for purposes of the Court- fees Act, it is the substance and not the form which has to be considered while deciding which particular provision of the Act applies. It cannot, however, be gainsaid that the actual relief prayed for in the plaint was an injunction restraining the State and its authorities to cess and the purchase-tax. It is clear from the plaint when read as a whole that though the appellant-company alleged that the Acts were void and therefore non est for the reasons set out therein, it did not seek any declaration that they were void. The plaint proceeds on the footing that the said Acts were void and that therefore the State of U. P. or its authorities had no power to realise the said tax and the said cess. It may be that while deciding whether to grant the injunction or not, the court might have to consider the question as to the validity or otherwise of the said Acts. But that must happen in almost every case where an injunction is prayed for. If for the mere reason that the court might have to go into such a question, a prayer for injunction were to be treated as one for a declaratory decree of which the consequential relief is injunction, all suits where injunction is prayed for would have to be treated as falling under Cl. (a) of sub-s. (iv) of S. 7 and in that view Cl. (b) of sub-s. (iv-B) of S. 7 would be superfluous. The contention urged by Mr. Bishan Narain, therefore, cannot be accepted." 13. A case relied upon by the learned counsel for the respondent is a decision in the case of Vinod Kumar v. State Bank of India, (1970 All L J 269). The allegations in the plaint were that the plaintiffs were the owners of the Kothi in question and they were joint with their father Banarasi Das who was defendant 3 and their brother Dev Kumar who was defendant 4. The allegations in the plaint were that the plaintiffs were the owners of the Kothi in question and they were joint with their father Banarasi Das who was defendant 3 and their brother Dev Kumar who was defendant 4. The State Bank of India had obtained a decree against M/s. Banarasi Dass Dev Kumar for a sum of Rs. 1,50,000/-. It was asserted that the money was borrowed by Banarasi Dass for wagering and speculating transactions and the debt was tainted with immorality. The plaintiffs claimed that the property was joint Hindu family property and the decree obtained by the State Bank of India against M/s. Banarasi Dass Dev Kumar was not executable. The plaintiffs sought a declaration that the decree against M/s. Banarasi Dass Dev Kumar was not binding on the plaintiff and was void and the property in suit was not liable to be sold in execution of the decree. The plaintiffs paid court-fee under Schedule 2 Article 17 (iii) of the Court-fees Act. A plea was taken by the State Bank of India that the court-fee paid was insufficient. The court below held that the court-fee payable was under S. 7 (iv-A), sub-cl. (1) of the Court-fees Act and it also found that further court-fee was required to be paid. The High Court upheld the view of the trial court. We find that the suit clearly involved adjudging void or voidable a decree. This decision is also distinguishable. 14. The learned counsel for the respondents has placed strong reliance on a judgment of the Supreme Court in the case of Shamsher Singh v. Rajinder Prasad, ( AIR 1973 SC 2384 ). In that case what had happened was that the father of the plaintiffs had executed a mortgage deed of the property of which he claimed to be the sole owner. The mortgagee filed a suit on the basis of the mortgage and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property the plaintiffs filed a suit for declaration that the mortgage executed by his father in favour of the mortgagee was null and void and ineffectual as against them as the property was a joint Hindu family property and the mortgage had been effected without consideration and family necessity. On the plaint, the plaintiffs paid a fixed court- fee of Rs. On the plaint, the plaintiffs paid a fixed court- fee of Rs. 19-50 and the value of the suit for the purposes of jurisdiction was given at Rs. 16,000/-. A preliminary objection having been raised about the court-fee paid, the subordinate Judge held that although the case was covered by S. 7 (iv) (c), Court-fees Act, and the proviso to that section applied and the Judge directed the plaintiffs to pay court- fee on Rs. 16,000/- which was the amount at which the plaintiffs valued the suit for the purposes of jurisdiction. The court-fee not having been paid, the plaint was rejected. The plaintiffs appealed. Before the High Court the plaintiffs did not seriously contest the position that the consequential relief of setting aside the decree within the meaning of S. 7 (iv) (c) of the Court-fees Act was inherent in the declaration which was claimed with regard to the decree. But taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree, the High Court held that there was no consequential relief involved since neither the decree nor the alienation bound the plaintiffs in any manner. The defendant there upon appealed to the Supreme Court. The Supreme Court held that in a suit by a son for a declaration that a mortgage decree obtained against his father was not binding on him, it was essential for them to pay adequate court-fee under S. 7 (iv) (c). The quotation extracted by the Supreme Court from the judgment of Lahore High Court in the case of Prithvi Raj v. D. C. Ralli, (AIR 1945 Lah 13) clearly shows that the Supreme Court was deciding the case in the manner it did because a mortgage decree obtained against a Hindu father binds his son and a declaration, therefore, could not be obtained without adjudging void the mortgage deed. It is clear that if a declaration had been sought that the mortgage deed was not binding and the mortgage had been executed by a person other than the father of the plaintiffs then it would not have been necessary for the plaintiffs to have had the mortgage deed adjudged void. This case is not relevant for determining the controversy involved in the present case. 15. This case is not relevant for determining the controversy involved in the present case. 15. The last case referred to by the learned counsel for the respondents is a decision of Allahabad High Court in the case of Gulab Chand v. Jaswant Singh ( AIR 1956 All 71 ) sued for a declaration that he was entitled to a certain share of the property left to him under a will of his father dated 17-3- 1941 and an oral will dated 23rd or 24th of March, 1941. It was alleged that the plaintiffs rights were denied by defendant 1 who had put forward another will dated 26-12-1944 which, the plaintiff alleged, was not a valid will as his father Chiranji Lal was not in his proper senses and was not in a fit position to execute the will dated 26-12-1944 and the will was a forged paper and not genuine. The plaintiff sought a declaration that he was the owner of a sum of Rs.7000/- and of the business to the extent of share and of a house to the extent of ?th share. After the institution of the suit, the plaintiff sought an amendment of inc relief claimed in tire plaint by an addition of the tenet in take alternative that if the will dated 1944 set up by the defendant was round to be genuine then the plaintiff was entitled to a certain share in the property. It was not known whether the amendment application was allowed or not. 16. The court passed an order to the effect that the plaint involved the cancellation of the will set up by the defendant and, therefore, the court-fee was payable under S. 7 (iv-A). Court-fees Act, as amended in Uttar Pradesh. The plaintiff appealed. The first question decided by the High Court was that the will became an `instrument' within the meaning of S. 7 (iv-A) of the Court-fees Act. The next question examined was whether the relief claimed in the plaint involved the cancellation of adjudging void or voidable the will set up by the defendant. The plaintiff appealed. The first question decided by the High Court was that the will became an `instrument' within the meaning of S. 7 (iv-A) of the Court-fees Act. The next question examined was whether the relief claimed in the plaint involved the cancellation of adjudging void or voidable the will set up by the defendant. It was held by the learned Judge that though the relief claimed in the plaint was only a declaration as to the plaintiff's right in a property yet if the plaint is read as a whole it cannot be denied that "what really the plaintiff wanted was that the subsequent will' as put forward by the defendant may be declared ineffective or void or voidable for the reasons mentioned in the plaint. Unless the will put forward by the defendant was considered and a declaration as to its validity or its invalidity given the relief claimed by the plaintiff could not be awarded to him. This is, therefore, a case in which the relief claimed by the plaintiff involved the canceliation or adjuagitig void or voidable an instrument". The learned Judge went on to hold that it a suit involved the cancellation of an instrument, the court-fee would be payable under S. 7 (iv-A), Court-fees Act. Then the learned Judge weal on to say : "If we were to take the alternative relief it is conceded that it involved the adjudging void of the subsequent will. As the will was executed by the predecessor of the plaintiff, court-fee is payable under S. 7 (iv-A), Cl. (1), and not under S. 7 (iv-A) Cl. (2) Court-fees Act." 17. From the last quotation given from the judgment it is clear that the learned Judge decided that cl. (1) of S. 7 (iv-A), Cl, (1) and on the footing that the matter of court-fee was governed by the alternative relief claimed by the plaintiff. 18. This case cannot assist the respondents because in the plaint the plaintiff clearly stated that the will which had been set up by the defendant, had not been executed by his predecessor-in-interest and was a forged document. If the plaintiff had claimed that the will had been executed by his predecessor-in-interest but was void for any reason, the matter would have been governed by S. 7 (iv-A) (1) and not by S. 7 (iv-A) (2) of the Court-fees Act. If the plaintiff had claimed that the will had been executed by his predecessor-in-interest but was void for any reason, the matter would have been governed by S. 7 (iv-A) (1) and not by S. 7 (iv-A) (2) of the Court-fees Act. The distinction between cl, (1) and cl. (2) of S. 7 (iv-A) is that where the plaintiff or his predecessor-in-title was a party to the decree or the instrument cl, (1) will apply and where the plaintiff or his predecessor-in-title was a party to the decree or the instrument of (2) will apply. 19. In this case on the allegations of the plaint, the predecessor-in-title of the plaintiff was not a party to the will (instrument) and, therefore, of (2) would apply. If this interpretation was not to be accepted, a defendant by committing forgery of an instrument and putting thereon the purported signature of the predecessor-in-title of the plaintiff, may compel him to pay the higher court-fee prescribed in cl. (1) of S. 7 (iv-A). It would put a premium on fraud and the instruction which places such a premium must at all costs he avoided. 20. In the result the appeal is allowed. the impugned order of the court below is set aside and it is directed that the court-fee shall be payable under cl. (1) or cl. (2)) and not under cl. (2) (or cl. (1)) of S. 7 (iv-A) of the Court-fees Act as directed under the impugned order. The plaintiff is entitled to his costs.