VANNAPPAN SERVAI Vs. SINNATHAYEE AMMAL

JUDGEMENT

(1.) The plaintiff who is the petitioner before me instituted the suit out of which this petition arises for declarations that the wills purported to have been executed by the deceased Periakaruppan Servai on 29 October, 1944, and 30 January, 1945, respctively were not true in fact and at any rate invalid in law, and in respect of these two declarations he paid a fixed court-fee of Rs. 100 for each declaration. On an objection raised by the defendants, the learned Sub-ordinate Judge framed issue (3) raising the question " whether the court-fee paid is correct." He took this issue for trial as preliminary issue and held that the two reliefs fall under Section 7 (iv-A) of the Court-Fees Act. According to the learned Judge, the reliefs in substance are for cancellation of the two wills and that therefore the plaintiff is bound to pay Court-fee on the market value of the properties forming the subject-matter of the wills.

(2.) In my opinion, the learned Judge has overlooked the clear provisions of Section 7 (iv-A) of the Court-Fees Act. The relevant part of the section is that the document must be a document " securing money or other property having money value." A will is merely a declaration of the intentions of the testator with respect to his property to take effect after his death and is not a document " securing money or property " within the meaning of the section. This is the view taken by a Bench of this Court in Kattiya Pillai V/s. Ramaswamia Pillai where the learned Judges thought that the question was not arguable at all; for they said that " the will sought to be cancelled is clearly not a document securing money or property having money value". Under the corresponding provision of the Court-Fees Act the Allahabad High Court in a recent decision in Chief Inspector of Stamps V/s. Ramesh Chandra I.L.R. 1944 All. 133 has taken a similar view. At page 138 the learned Judges observed: The question therefore, is whether a will can possibly be described as an instrument securing money or other property within the meaning of this section. In our judgment, the question is only to be stated in order to be aswered in the negative. Will as defined by the Indian Succession Act means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is clear, therefore, that a will is no more than the declaration of an intention and it canot possibly be described as an instrument securing any property.

(3.) I respectfully agree with this view of the language of the section.