THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3657 OF 2009 DATED:21-01- 2011. Between S.Sankar … Petitioner-plaintiff And 1.S.Thakkappa and others …Respondents-defendants THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3657 OF 2009 ORDER: This revision is directed against the order, dated 09-07-2009 in O.S.No.6 of 2005 on the file of the III Additional District Judge (FTC), Anantapur, 2. Learned counsel for the petitioner contended that the contents of the document do not come under the purview of ‘Will’ and therefore, it is an instrument within the meaning of Section 2 (14) of the Indian Stamp Act, 1899 (for short ‘the Act’) and therefore, it requires stamp duty and penalty under Section 35 of the Act. 3. On this aspect, learned counsel for the petitioner relied on a decision reported in MANDAKINI NAIK V G.K. NAIK [1], wherein it was held thus: “In Dr. Mahesh Chand Sharma V Raj Kumari Sharma (Smt) the Supreme Court while dealing with the applicability of Section 119 III (iii) of the Hindu Succession Act in a dispute relating to the date of vesting of legacy to the legal heirs basing on a Will of the testator, held that the property is vested to defendant No.1 on the date of death of the testator, even though word ‘heirs’ instead of ‘heir’ is used in the Will. Merely because a prior interest in the bequest is given to the widow, it would not indicate a contrary intention within the main limb of S. 119. A will has to be understood and construed in the light of the statutory rules governing the Will. The above rulings make the position clear that unless a document satisfies the two characteristics, i.e., it must be intended to come into effect after the death of the testator and it must be revocable, it cannot be treated as a Will. A document cannot be treated as a Will by a mere reading o the heading of the document.” Considering the facts of the facts, it was held that the document filed therein cannot be treated as a ‘Will’. The only ground taken by the learned counsel for the petitioner is that there was no revocation clause in the instrument and therefore, it does not fall within the meaning of the ‘Will’. The trial Court gave a categorical finding that the revocable clause is an option of the testator and in the absence of such clause, the document cannot be taken away from the purview of the definition of ‘Will’. Therefore, the objection of the petitioner has been overruled. In any view of the matter, this aspect of the case can as well be settled in the suit, after letting in evidence by both parties. Therefore, at the threshold, the finding of the trial Court that the document sought to be received can be termed as a ‘Will’, can be taken as a prima facie finding of the trial Court. Whether the document is a ‘Will’ or not and whether it is an instrument within the meaning of Section 2 (14) of the Act subjected to stamp duty and penalty are the matters to be decided at the time of arguments in the suit. The observation of trial Court with regard to the nature of document is left open before the trial Court by both the parties. 4. With the above observation, the Civil Revision Petition is dismissed. No order as to costs. -------------------- K.C.BHANU, J DATED:21-01- 2011 Hsd [1] 2004 ALT 829