1. The question which has 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), 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 immoveable 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 cancellation 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 Kidwai J. 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), 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 All 71 (A), 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
4. The verb 'to secure' has a wide meaning,and we think that the definition most appropriate in the present context is to make secureor certain (Murray) or to make safe (Oxford).Such also was the view of Venkataramana Rao, J. in C. Sodemma v. P. Krishnamurthy, 1938 Mad 824 (AIR V25) (B) and of Sapru J. In Kamla Devi v. Sunni Central Board of Waqfs, U.P., 1949 All 62 (AIR V36) (C).
5. The question then is whether a will can properly be regarded as a legal document which makes any property secure or safe. A will is defined in the Indian Succession Act (Section 2 Clause (h)) as 'the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death', and we entertain no doubt that during the testator's lifetime a will, revocable as it is at the testator's pleasure, secures nothing.
On the death of the testator however the position changes; the expression of the testator's intention is no longer revocable; it has, so to speak, crystallized. The opinion of a Bench of this Court in Chief Inspector of Stamps v. Ra-mesh Chandra : AIR1944All84 that a will is not an instrument securing property does not therefore conclude the matter as the testator to whose will reference was made in that case was alive. In The Chief Inspector of Stamps, U.P. v. Sunni Central Board of Waqf, U.P : AIR1953All550 the testator was dead but nonetheless Misra J. held that this fact made no difference.
'It appears to me' said the learned Judge, 'that the vesting of the property in the legatees after the death of the testator cannot convert an instrument which merely constituted a declaration of intention into an instrument securing property by its own force. It is true that the law enforces the wishes of the testator after his death but this fact does not alter the legal nature of the testamentary bequest'.
In Gulab Chand v. Jaswant Singh (A) to which we have already referred another learned Judge took a different view. In his opinion a will upon the death of the testator becomes a document by which a right or liability is created or transferred and is therefore an instrument securing money or other property. This opinion was however founded on the meaning which the learned Judge attributed to the word 'instrument' rather than upon that which he gave to the word 'securing'.
6. In two decisions of the Madras High Court it has been held that a will (the testator being dead) is not an instrument securing property. This was so held by one of the two learned Judges who decided the case of Kattiya Pillai v. Ramaswamia Pillai, 1929 Mad 396 (AIR V13) (F); but no reasons were given; in the later case of Vanappan Servai v. Sinnathayee Ammal, 1948 Mad 501 (AIR V35) (G) Satyanarayana Rao, J. took the same view basing his conclusion on the earlier decision in Kattiya Pillar's case (F) and the decision of this Court in Ramesh Chandra's case (D).
7. Now upon the death of a testator his property vests in the executor of his will if one has been appointed, and where a legacy is given in general terms the legatee has, under Section 104, Indian Succession Act, a vested interest in it from the date of the testator's death. Again where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time nevertheless becomes vested in the legatee (unless a contrary intention appears in the will) on the testator's death: see Section 119.
8. The death of a testator it appears to us does 'make secure' to the executor the forme' property. The interest in that property which made secure to a legatee is dependent on thesolvency of the testator's estate; if the testator is a Hindu and appoints no executor the bequests made by him rest in the legatees subject to the payment of his debts, and the fact that in any particular case a plaintiff seeks to have a will cancelled or adjudged void indicates that in the view of the plaintiff the legatee has derived or will derive some interest? thereunder.
A testamentary disposition by a Hindu is a form of gift and stands substantially on the same footing as a gift. In the circumstances we are of opinion that a will is an instrument securing property within the meaning of the Court-fees Act. This appeal therefore fails and is dismissed with costs.