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1979 DIGILAW 43 (BOM)

IN RE INDJRABAI GOVINDRAO KULKARNI v. .

1979-02-15

SUJATA V.MANOHAR

body1979
JUDGMENT-In the present case the Petitioners filed a petition for probate of the last Will and Testament of the deceased Govindrao Anandrao Kulkarni on 1st October, 1975. 2. On 11th November 1975 a copy of this application was served by the High Court on the Respondent under the provisions of section 28, subsection (2) of the Bombay Court Fees Act, 1959. Probate was granted in respect of this Will to the Petitioners on 9th June, 1976. Thereafter a report from the Respondent was received in the High Court on 3rd August 1978 challenging the valuation shown in the probate petition of a certain property. A copy of the letter addressed by the Respondent to the High Court, which accompanied this report, was received by the Petitioners On 4th August 1978. Thereafter under the provisions of section 28, sub-section (5) of the Bombay Court Fees Act, 1959 the Petitioners have filed an affidavit raising objections on 30th August, 1978. 3. According to the petitioners, the Respondent has filed his report beyond the period prescsibed under the provisions of the Bombay Court Fees Act, 1959 read with the Bombay Probate Valuation Rules, 1949. Rule 19 of the Bombay Probate Valuation Rules 1949 is as follows: "19. The Collector shall complete the inquiry about the valuation of the property under these roles within a period of four months from the date of the receipt of the notice from the Court or the intimation from the Chief Controlling Revenue Authority, .as the case may be. If the proceedings are delayed on any account he shall report periodically to the Chief Controlling Revenue Authority or the Court, as the case may be, till the valuation work is complete." The petitioners urge that it is obligatory on the Collector to send his report within a period of four months from the time when a notice of the application is received by the Collector under the provisions of section 28, sub-section (2) of the Bombay Court Fees Act. In the present case as the report has been made after a period of 2 years and 9 months from the date when the notice was received by the Collector, the report is beyond time and should be rejected. 4. In order to appreciate the contention of the Petitioners, it is necessary to decide whether Rule 19 of the Bombay Probate Valuation Rules, 1949 applies to the present proceeding. 4. In order to appreciate the contention of the Petitioners, it is necessary to decide whether Rule 19 of the Bombay Probate Valuation Rules, 1949 applies to the present proceeding. The Bombay Probate Valuation Rules, 1949 were framed under the provisions of sub-section (8) of section 19-R of the Court Fees Act, 1870. Admittedly the Court Fees Act, 1870 is repealed by the Bombay Court Fees Act, 1959. According to the petitioners, under the provisions of section 49 of the Bombay Court Fees Act, 1959, all rules which have been framed under any previous law in so far as they are not inconsistent with the provisions of the Bombay Court Fees, Act, 1959 shall be deemed to have been framed under the corresponding provision of the Bombay Court Fees Act, 1959. Section 28, sub-section (7), according to the Petitioners, is such a corresponding provision under which the Bombay Probate Valuation Rules, 1949 can still operate although the Act under which they were framed is repealed. It is, therefore, necessary to examine whether there are any provisions in the Bombay Court Fees Act, 1959 which correspond to the provisions of section 19-R of the Court Fees Act, 1870 and whether these rules can be deemed to have been framed under such a corresponding provision. A perusal of section 19-R of the Court Fees Act, 1870. however, makes it clear that the Scheme of old section 19-R is very different from the Scheme of section 28 of the Bombay Court Fees Act, 1959. Under sub-section (3) of section 19-R the Collector is required to make an inquiry if he thinks fit, regarding valuation of any property and to require the attendance of the petitioner and take evidence for this purpose if he so thinks fit. Thereafter under sub-section (4) of section 19-R he also has the power to move the Court for holding an inquiry into the true value of the property. Under sub-section (8) of section 19-R the State Government is empowered to make rules for the guidance of Collectors in the exercise of the powers conferred by sub-section (3). Thereafter under sub-section (4) of section 19-R he also has the power to move the Court for holding an inquiry into the true value of the property. Under sub-section (8) of section 19-R the State Government is empowered to make rules for the guidance of Collectors in the exercise of the powers conferred by sub-section (3). It is, therefore, clear that the Bombay Probate Valuation Rules, 1949, which have been framed under sub-section (8) of section 19-R of the Court Fees Act, 1870 are rules for the guidance of Collectors in carrying out the provisions of sub-section (3) of section 19- R, which relate to his power to hold an inquiry relating to valuation by requiring the attendance of the petitioner and taking evidence. There is no such provision under section 28 of the Bombay Court Fees Act, 1959. Under section 28, sub-section (3) of the Court Fees Act, 1959 the Collector does not have any power to make an inquiry of the type envisaged under sub-section (3) of section 19-H of the Court Fees Act, 1870. The Collector is merely required to make a report to the Court if he is of the opinion that the property has been under-valued in an application for probate or letters of administration. If he makes such a report, the petitioner is required under sub-section (4) of section 28 to file his objections within 30 days. The scheme of section 28, sub-section (3) is thus very different from the scheme of section 19-H, sub-section (3). To the extent of the difference it is inconsistent with the provisions of section 19-H, sub-section (3). Hence it cannot be said that the rules which were framed for the guidance of Collectors in the exercise of the powers conferred by section 19-H, sub-section (3), would apply to the powers of the Collector under section 28, sub-section (3) of the Bombay Court Fees Act, 1959. Hence it cannot be said that the Bombay Probate Valuation Rules, 1949 are saved by _virtue of section 49 of the Bombay Court Fees Act, 1959. 5. Secondly both under section 19-H, sub-section (8) of the old Act and section 28, sub-section (7) of the Bombay Court Fees Act, 1959 the rules which are to be framed are merely for the guidance of Collectors and they are not mandatory. 5. Secondly both under section 19-H, sub-section (8) of the old Act and section 28, sub-section (7) of the Bombay Court Fees Act, 1959 the rules which are to be framed are merely for the guidance of Collectors and they are not mandatory. Such rules which are merely for the guidance of Collectors cannot prescribe any mandatory period within which the Collector is requited to make a report. It is true that in Rule 19 of the Bombay Probate Valuation Rules, 1949 the words used are "The Collector shaH complete the inquiry ......... within a period of four months". But in the context of section 19-H(8) under which these rules are framed the use of the word "shall" does not appear to be mandatory obligation on the Collector to complete an inquiry within four months. It is well known that the use of the word "shall" may imply an obligation which may be either mandatory or directory depending upon the context. Mr. Chogle, who appears for the respondent, has relied in this connection on the discussion of this word in Saunders' Words and Phrases Legally Defined, Vol. 5, p. 63 and on Stroud's Judicial Dictionary, p. 2748. He has also relied upon a decision reported in Union of India v. M Is Allied Trading CO.1, where also the Court had interpreted the word "shall" as merely being directory and not mandatory. Rule 19 itself clarifies that its provisions are directory because it goes on to provide that if the proceedings are delayed beyond four months on any account, the Collector is required to report periodically to the Chief Controlling Revenue Authority or the Court, as the case may be, till the valuation work is complete. Thus Rule 19 is merely directory and it cannot be construed as making it mandatory for the Collector to make his report within four months, even assuming that Rule 19 applies to a report under section 28, sub-section (3) of the Bombay Court Fees Act, 1959. Hence the report of the Collector is not barred under the provisions of Rule 19 of the Bombay Probate Valuation Rules, 1949. 6. The petition is referred to the Prothonotary and Senior Master for disposal on merits. Costs to be costs in the cause. Order accordingly.