Honble Amitava Lala, J.—This appeal is arising out of order impugned passed by the Addl. Civil Judge (Senior Division), Court No. 2, Meerut dated 9th February, 2009 directing the plaintiff-appellant to deposit ad valorem Court fee in proceeding with the suit.

2. Being aggrieved/dissatisfied with the order impugned, Mr. Mukhtar Alam, learned counsel appearing for the appellant contended before this Court that the suit is in the nature of declaration simplicitor, therefore, fixed Court fee, as prescribed under Article 17 (iii) of Schedule-II of the Court Fees Act, 1970 will be applicable in this case. But the Court below, under the order impugned, wrongly and erroneously held that the plaintiff-appellant is required to be paid Ad valorem fees.

3. On one hand the nature of relief, as appears from the plaint, is that a Will executed by the testator in favour of the defendant-respondent is declared to be null and void on the other hand Sri Rahul Mishra, learned counsel appearing for the defendant-respondents contended before this Court that the plaintiff-appellant is required an order which in effect wanted to get right over the property inherited by him on the basis of the Will and as such, the suit is not made for declaration simplicitor but coupled with the right, title or interest over and above such property, therefore, the Court fees under Section 7 (iv-A) is required to be paid to obtain said order.

4. In considering the cause, there are various judgments. Let us consider the ratio of the judgments to synchronize the event. A Full Bench of Allahabad High Court in a judgment reported in AIR 1966 All 563, Smt. Bishun Shri v. Smt. Suraj Mukhi and others, has already held per majority that the word ‘instrument’ in Section 7(iv-A) of the Court-fees Act, 1870 as in U.P. includes formal or legal documents in writing. It is sufficiently broad to include Wills also. The word “securing” is the present participle from verb “to secure”. It has got various meanings [Words and Phrases (Permanent Edition), Vol. 38. p. 458] “Secures” as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the vendee secures the payment of purchase money, means not a payment in money, but the giving by the vendees of something by means whereof payment at some future time can be procured or compelled. (Ibid). Webster defines “secures” to mean "to make certain”, “to put beyond hazard”, “To secure” is to make safe, to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage; it also means to get safely in possession, to obtain to acquire certainly, as to secure as inheritance or a price (ibid 459).

5. The question is whether a Will can be regarded as a legal document which makes any property secure or safe. Section 2 (h) of the Indian Succession Act defines a Will as a “legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. “It is well known that during the life-time of the executant, the will is ambulatory. It could be revoked by him at his will. Accordingly, a will does not secure any property during the lifetime of the executant. Section 7 (iv-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an instrument secures money or property having money value within the meaning of Section 7 (iv-A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether a particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this section with Section 39 of the Specific Relief Act. If this is so, as we think, then there is little doubt that on the date of the institution of the suit in this case the will did secure property. Ganga Prasad the testator had died, and after his