- (1.) The question which his to be decided in this appeal is whether a will is, after the death of the testator, an instrument securing property within the meaning of Section 7(IV-A) of the Court Fees Act, as amended by the U.P. Court Fees (Amendment) Act, 1938. The Appellant filed a suit for the recovery of possession over certain immovable property to which he claimed to be entitled by inheritance. The Respondents contested the suit, their contention being that the property in dispute had been bequeathed to them under the will of Mahant Indergir who was admittedly the former owner of the property. The trial Judge was of opinion that the relief sought by the Appellant necessarily involved the concellation or adjudging void of the will, and he held that the court-fee must accordingly be calculated in accordance with the provisions of Section 7(IV-A). The appeal came in the first instance before Mr. Justice Kidwai who being of opinion that the question was of a considerable importance and the decisions of this Court were not consistent, referred it to a Bench.
(2.) Section 7(IV-A) of the Court Fees Act, so far as it is relevant, makes provision for the payment of court fees in a suit 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. The finding of the trial judge that the suit involved the setting aside of the will is not challenged, the argument for the Appellant being that a will is not an "an instrument securing money or other property" within the meaning of this section.
(3.) As has been pointed out in several cases this section is not aptly worded, the phrase "instrument securing money or other property" in particular being obscure: but it is that expression which has to be construed in this appeal. The word 'instrument' in our opinion means a legal document. We can see, with respect, no sufficient justification for the view expressed by a learned single judge in a recent case, Gulab Chand v. Jaswant Singh, 1956 AIR(All) 71 that 'instrument' has the same meaning here as is assigned to it in the Indian Stamp Act. The real difficulty centres around the meaning of the word 'securing.' To lawyers and laymen alike an instrument securing money will at once suggest a mortgage or charge; but what is an instrument securing property;