( 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 secure or 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 testators lifetime a will, revocable as it is at the testators pleasure, secures nothing. On the death of the testator however the position changes; the expression of the testators 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, 1944 All 84 (AIR V31) (D) 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. , 1953 All 550 (AIR V 40) (E) 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