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1971 DIGILAW 281 (KAR)

K. NANJUNDAPPA v. PADMAMMA

1971-09-10

CHANDRASHEKHAR, RANGE GOWDA

body1971
( 1 ) IN this appeal under S. 295 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act), respondents 2 and 3 have filed an application I. A. V. , praying that the appellants may be directed to pay the deficient court fee on the memorandum of appeal, before the appeal is proceeded with. ( 2 ) THE appellants filed before the District Judge, Bangalore, a petition under Sec. 276 of the Succession Act for grant of probate in respect of a will alleged to have been executed by one Puttananjamma. On that petition, a courtfee of Rs. 12-50 was paid under Art. 11 (1) (ii) (3) of schedule II to the Mysore Court-Fees and Suits Valuation Act. 1958, (hereinafter referred to as the Court-Fees Act ). That petition was accompanied by a valuation of the estate in the form set forth in Part I of Sch. III to the Court-Fees Act. The estate was valued at Rs. 1,13,811-50. The learned District Judge sent a copy of such petition and of such valuation to the Deputy Commissioner, bangalore District, within whose jurisdiction the properties of the estate were situated. The Deputy Commissioner does not appear to have held any enquiry as contemplated under Sec. 56 of the Court-Fees Act; nor did he call upon the appellants (petitioners before the District Judge), to file a copy of the amended valuation of those properties. As the petition for grant of a probate was contested, it was tried in the form of a regular suit as provided in S. 295 of the Succession act. After recording the evidence, the learned District Judge dismissed the petition. ( 3 ) AGAINST the judgment and decree of the learned District Judge, the present appeal has been filed. The appellants valued the subject-matter of the appeal at Rs. 1,13,811-50 and have paid a court-fee of Rs. 3,863-75 under Art. 4 of Schedule I to the Court-Fees Act. ( 4 ) IN I. A. V. , respondents 2 and 3 have contended, inter alia that the subject-matter of the appeal has not been properly valued by the appellants, that the Estate Duty Officer valued the estate at Rs. 2,34,200 for the purpose of levy of estate duty and that the value of the subject-matter of the appeal could not be different from the value of the estate as valued by the Estate Duty Officer. 2,34,200 for the purpose of levy of estate duty and that the value of the subject-matter of the appeal could not be different from the value of the estate as valued by the Estate Duty Officer. ( 5 ) MR. G. P. SHIVAPRAKASH, learned counsel for respondents 1 and 3, appeared in support of I. A. V. Mr. K. S. Ramdas, learned counsel for the appellants, opposed that application I. A. No. V. A notice on I. A. V was issued to the Additional Government Advocate under S. 19 of the Court-Fees act. The learned Government Pleader appeared for the Additional government Advocate and addressed the arguments supporting the application, I. A. V. ( 6 ) MR. Ramdas contended that the only authority who is competent to raise any objection as to the value of the subject-matter of the appeal, is the Deputy Commissioner and that he (the Deputy Commissioner) has not raised any such objection, and that respondents 2 and 3 have no locus standi to raise any objection as to the valuation of the subject matter of the appeal or sufficiency of the court-fee paid on the memorandum of appeal. It was also contended by Mr. Ramadas that in the absence of any objection, raised by the Deputy Commissioner, this Court cannot go into the question of the valuation of the subject matter of the appeal. ( 7 ) ON the other hand Mr. Shivaprakash and the learned Government header contended that under Sec. 15 of the Court Fees Act, this Court is competent to decide whether the subject-matter of the appeal has been properly valued and whether sufficient court-fee has been paid and that respondents 2 and 3 have locus standi to raise objections as to such valuation and the objections as to such valuation and the adequacy of the court fee paid. ( 8 ) IN order to appreciate the contentions of parties, it is necessary to set out certain provisions of the Court-Fees Act. The court-fee payable on an application for grant of a probate or letters of administration under the Succession Act, is provided in Clause (1) of Art. 11 of Schedule II to the court-Fees Act, and varies from Rs. 2-50 to Rs. 12-50. , according to the nature of the application and the value of the estate. The court-fee payable on an application for grant of a probate or letters of administration under the Succession Act, is provided in Clause (1) of Art. 11 of Schedule II to the court-Fees Act, and varies from Rs. 2-50 to Rs. 12-50. , according to the nature of the application and the value of the estate. But a separate court-fee is chargeable under S. 53 of the Court-Fees Act for the grant of probate or letters of administration, and Art. 6 of Schedule I provides for levy of ad valorem court fee at rates varying from 2 % to 8 3/4 % of the value of the properties in respect of which the grant of probate or letters of administration is made. ( 9 ) SUB-SEC. (1) of S. 52 requires that every application for the grant of probate or letters of administration, shall be accompanied by a valuation of the estate in duplicate in the form set forth in Fart I of Sch. III. ( 10 ) SUB-SEC. (2) of that section provides that on receipt of such application, the Court shall send a copy thereof and of the valuation to the deputy Commissioner ot the district in which the estate is situated. ( 11 ) S. 56 empowers the Deputy Commissioner to make an inquiry as to the correctness of the valuation of such estate. Sub-sec (3) of S. 56 provides that if the Deputy Commissioner is of opinion that the value of the estate has been under-estimated, he may require the attendance oi the applicant tor probate or letters of administration, for an enquiry into the matter. If after such enquiry the Deputy Commissioner is still of opinion that the value of the property has been under-estimated, he may require the applicant to amend the valuation, if such application is pending in court and to file a copy of such amended valuation in such Court. ( 12 ) SUB-SEC. (5) of S. 56 provides that if such applicant does not amend the valuation to the satisfaction of the Deputy Commissioner, the deputy Commissioner may move the Court before which such application was made, to hold an inquiry into the true value of the property. The proviso to sub-sec. ( 12 ) SUB-SEC. (5) of S. 56 provides that if such applicant does not amend the valuation to the satisfaction of the Deputy Commissioner, the deputy Commissioner may move the Court before which such application was made, to hold an inquiry into the true value of the property. The proviso to sub-sec. (5) prescribes a time limit of six months from the date of the exhibition of the inventory required by S. 317 of the Succession act and after the expiry of such time limit, the Deputy Commissioner cannot make such motion before the Court. ( 13 ) SUB-SEC. (1) of S. 11 provides, inter alia, that any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and that the Court shall hear and decide such pleas before evidence is recorded on the merits of the claim. If the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with Court's decision and the deficit fee shall be paid. ( 14 ) SECTION 15 of the Court-Fees Act reads:"15. Fee payable on appeals, etc.-The provisions of Ss. 10 to 13 relating to the determination and levy of fee on plaints in suits shall apply mutatis mutandis to the determination and levy of fee in respect of a memorandum of appeal, cross-objection or other proceedings in second appeal. " ( 15 ) FROM a perusal of the above sections, it is seen that an inquiry under S. 56 as to the value of the estate, is for the purpose of determining the fee chargeable under S. 53 for grant of probate or letters of administration. The Court-Fee chargeable under S. 53, before issue of a probate or letters of administration is entirely different from the court-fee payable on the memorandum of appeal in an appeal under S. 299 of the Succession act. In such appeal the questions whether the subject matter of that appeal has been properly valued and adequate court fee has been paid are matters which the appellate Court has to decide under S. 15 of the Court Fees Act. ( 16 ) HOWEVER, Mr. In such appeal the questions whether the subject matter of that appeal has been properly valued and adequate court fee has been paid are matters which the appellate Court has to decide under S. 15 of the Court Fees Act. ( 16 ) HOWEVER, Mr. Ramadas contended that S. 15 of the Court-Fees act is applicable only to appeals arising from suits and not to appeals under S. 299 of the Succession Act. Elaborating his contention, Mr. Ramadas submitted that though S. 295 of the Succession Act provides that contested applications lor probate or letters of administration, shall be tried in the form of a regular suit, such contested proceedings cannot be regarded as regular suits. In support of his contention, Mr. Ramadas relied on a decision in Sundarabai Saheb v. Collector of Belgaum, 1909 ILR 33 Bom 256. There, Chandavarkar, J. , who spoke for the Court said that though S. 83 of the Probate Act, 1881, brought a probate proceeding within the description of a suit by means of a statutory fiction, the purpose of which was expressly limited to the provisions of the CPC. and tnat such fiction should not be extended beyond its legitimate limits. ( 17 ) THE above decision was followed by the Allahabad High Court in Bohra Kanhiya Lal v. Gendo, AIR 1928 All 21. in which it was held that a contested application for probate is not to be considered as a suit for all purposes. ( 18 ) ON the basis of the aroresaid decisions, Mr. Ramadas contanded that an appeal under S. 299 of the Succession Act Irom a decision in a contested probate proceedings, cannot be regarded as an appeal from a suit, that the reference to Ss. 10 to 13 in S. 15 of the Court-Fees Act would show that that section (S. 15) is applicable only to appeals from decrees in suits and not to appeals from the decrees or orders in other proceedings, and that hence S. 15 of the Court-Fees Act has no application to an appeal under S. 299 of the Succession Act. 10 to 13 in S. 15 of the Court-Fees Act would show that that section (S. 15) is applicable only to appeals from decrees in suits and not to appeals from the decrees or orders in other proceedings, and that hence S. 15 of the Court-Fees Act has no application to an appeal under S. 299 of the Succession Act. ( 19 ) ON the other hand, the learned Government Pleader contended that there is nothing in the language of S. 15 of the Court-Fees Act to limit its application to only appeals from suits and that S. 15 is applicable to all appeals whether they are from decrees in suits or from decrees or orders in other proceedings. ( 20 ) IT appears to us that the reference in S. 15 of the Court-Fees act to the provisions of Ss. 10 to 13, is for the purpose of making the powers of the Courts and the procedure in regard to determination of the proper court-fee payable, as contained in those sections (Ss. 10 to 13) applicable, as far as may be, to determination of the proper Court-fee payable in appeals. The reference to Ss. 10 to 13 cannot be understood as limiting the scope of S. 15 to only those appeals which arise from the same kind of proceedings i. e. , suits to which Ss. 10 to 15 are applicable. Even in appeals not arising from suits but arising from proceedings other than suits. S. 15, in our opinion, empowers the appellate Court to determine whether the subject-matter of the appeal has been properly valued and whether sufficient court-fee has been paid in such appeals. ( 21 ) THUS, the fact that the Deputy Commissioner has not made any motion to the Court under S. 56 (5) of the Court-Fees Act, is wholly irrelevant for deciding whether the subject-matter of the appeal has been properly valued and whether proper Court-fee has been paid on the memorandum of appeal. ( 22 ) IN the result, we allow IA. V and we shall proceed to determine whether the subject-matter of this appeal has been properly valued and whether sufficient Court-fee has been paid. ( 23 ) HOWEVER, we are unable to accept the contention of Mr. ( 22 ) IN the result, we allow IA. V and we shall proceed to determine whether the subject-matter of this appeal has been properly valued and whether sufficient Court-fee has been paid. ( 23 ) HOWEVER, we are unable to accept the contention of Mr. Shivaprakash that the value of the subject-matter of this appeal should be taken to be the same as the value of the estate as determined by the Estate duty Officer for the purpose of levy of estate duty. How an estimate has to be valued for the purpose of levy of estate duty, is governed by the special provisions of the Estate Duty Act, 1959. The value of an estate for the purpose of levy of estate duty, need not necessarily be its value for the purpose of Court-fee. As pointed out by this Court in blanchce Nathalia Pinto v. State of Mysore, 1964 1 Mys. L. J. 348. in determining the value of the estate of a deceased for the purpose of Court-fee, the estate duty payable in respect of such estate should be deducted. ( 24 ) THE appellants are directed to file within four weeks an affidavit setting out with full particulars the value of the subject-matter of the appeal. The respondents may file counter-affidavits contesting the correctness of the valuation stated in such affidavit. The question whether evidence should be taken regarding the value of the subject-matter of the appeal, will be decided after the parties file such affidavit and counter affidavits. --- *** --- .