Mira Sen Gupta v. Shaktipada Sen Gupta — 1981 DIGILAW 82 (PAT)

Judgment 1. The petitioner is the daughter of late Sri Rash Behari Sen Gupta who had executed a Will appointing her to be the executrix. The petitioner has, therefore, filed this application for grant of probate. A caveat has also been filed by Shri Shaktipada Sen Gupta who is the son of late Rashbehari Sen Gupta and a brother of the petitioner. When the petition was filed a notice was given to the Chief Controlling Revenue Authority in accordance with sub-Sec.(2) of Sec.19-H of the Court-fees Act, 1870 (hereinafter referred to as the Act). No objection was raised regarding the valuation of the property given in the application by the Chief Controlling Revenue Authority or by the Collector under the provisions contained in Sec. 19H of the Act. According to the application the petitioner valued the assets at Rs. 49,989.00 (vide paragraph 10 of the application) and paid the duty on it. According to clause (b) of sub-Sec.(1) of Sec.56 of the Estate Duty Act, 1953 , the probate could not be granted unless a clearance certificate from the Controller of Estate Duty was obtained. As would appear from paragraph 9 of the petition, a copy of the petition with the details of valuation given in this Court was filed before the Controller of Estate Duty also for obtaining the necessary clearance certificate. That clearance certificate was granted to the petitioner in July, 1980 which is placed at flag 19. The certificate shows that she was not liable to pay any Estate Duty but at the same time the Controller has assessed the valuation of the properties or assets in question at Rs. 1,09,950/-. On receipt of this certificate the office has placed for consideration if the petitioner would be required to correct the valuation in her petition and pay further fees in the light of the valuation fixed by the Controller. Both parties have been heard on this point. 2. The first objection raised by Mr. C.B. Mitter, learned counsel appearing on behalf of the petitioner, is that this Court has no right to interfere with the valuation given by the petitioner in absence of any objection from the Collector. Both parties have been heard on this point. 2. The first objection raised by Mr. C.B. Mitter, learned counsel appearing on behalf of the petitioner, is that this Court has no right to interfere with the valuation given by the petitioner in absence of any objection from the Collector. He has invited my attention to Rule 4 Chapter XI, Part II of the Patna High Court Rules, according to which every application for probate has to be accompanied by a certificate of the Registrar as to the duty having been paid, or a certificate of the Taxing Officer that no duty is payable. In this case it is submitted that the property was valued at Rs. 49,989/- and duty was paid thereon. So this provision is said to have been fully complied with. He then referred to Sec.19-I of the Act which says that no order entitling the petitioner to the grant of probate shall be made until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation. The amount of duty that has been paid is in accordance with item No. 11 of the First Schedule of the Act. There is no dispute on this point. Thus, sub-sec. (1) of Sec.19-I of the Act is also claimed to have complied with. Mr. Mitter has, however, drawn my attention to certain sub-sections of Sec.19-H of the Act which entitles the Collector to raise some objections regarding valuation. 3. When an application for probate is made before the High Court then in accordance with sub-Sec.(2) of Sec.19-H of the Act, the High Court has to cause a notice of the application to be given to the Chief Controlling Revenue Authority for the local area in which the High Court is situated. If the application for grant of probate is made to any other Court, that Court has to cause a notice of the application to be given to the Collector in accordance with sub-sec. (1) of Sec.19-H of the Act. Sub-sec. (3) of Sec.19-H of the Act empowers the Collector to embark on an enquiry regarding the valuation, if he is of opinion that the petitioner has under-estimated the value of the property. (1) of Sec.19-H of the Act. Sub-sec. (3) of Sec.19-H of the Act empowers the Collector to embark on an enquiry regarding the valuation, if he is of opinion that the petitioner has under-estimated the value of the property. If after the enquiry he finds the property undervalued, he may require the petitioner to amend the valuation. If the petitioner does not amend the valuation then under sub-sec. (4) of Sec.19-H of the Act, the Collector may move the Court to hold an enquiry into the true value of the property. There is also a time limit of six months for the Collector to make such motion. After such a motion the Court can hold an inquiry and get an enquiry held under sub-sec. (5) of Sec.19-H of the Act and can record a finding as to the true valuation of the property. Sub-sec. (6) of Sec.19-H of the Act gives certain details of inquiry with which this case is not concerned. Under sub-sec. (7) of Sec.19-H of the Act the finding of the Court is final, even though an objection raised by the Chief Controlling Revenue Authority could still be entertained in such a case. Mr. Mitter has contended that Sec.19-H of the Act prescribes the mode of objection, if any, to the valuation and if no objection to the valuation given by the petitioner is made by the Collector in accordance with the provisions of Sec.19-H of the Act, the Court is helpless in the matter and even if the Court feels that the property has been under-valued, the Court cannot proceed in the matter and cannot require the petitioner to amend the valuation of the property or to pay any additional duty. I am afraid, it is not possible to agree with the objection of Mr. Mitter. No doubt, Sec.19-H of the Act does provide for an objection on the point of valuation to be raised by the Collector, but that is not all. The Court cannot be stopped from satisfying itself regarding the correctness of the valuation specially in a case like the present one where the petitioner has herself filed a document to show a different valuation of the very same property. But, before doing that I will dispose of the authorities relied upon by Mr. Mitter in support of his contention aforesaid. 4. Mr. But, before doing that I will dispose of the authorities relied upon by Mr. Mitter in support of his contention aforesaid. 4. Mr. Mitter has relied upon a Bench decision of Calcutta High Court in the case of "In the goods of Bhubaneshwar Trigunait", (AIR 1925 Cal 1201), in which it has been observed as follows:- "BY Sec.19-H notice of every application for probate or Letters of Administration has to be given to the Chief Controlling Revenue Authority and means are provided whereby the revenue authorities may check valuations and recover the proper fees. Sec.19-I, under which the learned Judge in this case has purported to act, means that an order for a grant shall not be made until payment of the duty. The applicant must have flied what the Section calls a "valuation of the property in the form set forth in the third Schedule." The Court is not required to satisfy itself that the "valuation" is correct but only that the fee mentioned in No. 11 of the first Schedule has been paid on such valuation." To appreciate this it would be necessary to quote sub-sec. (1) of Sec.19-I of the Act which runs as follows:- "No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation." In the authority quoted above it has been said that the Court is not required to satisfy itself regarding the valuation. That may only mean that it is not necessary for the Court to suo motu inquire into the matter. It never means that if a point is raised either by the Caveator or by the office and that on good materials, the Court would refuse to interfere in the matter. The petitioner of that case had not himself filed any other value as has been done here. On facts, therefore, the Calcutta authority is quite distinguishable and has no application. Another authority relied upon is a single Judge case of this Court in the case of Brahmdeo Singh V/s. The State of Bihar ( 1979 BBCJ 621 : (AIR 1978 NOC 303)). On facts, therefore, the Calcutta authority is quite distinguishable and has no application. Another authority relied upon is a single Judge case of this Court in the case of Brahmdeo Singh V/s. The State of Bihar ( 1979 BBCJ 621 : (AIR 1978 NOC 303)). In that case two applications for probate were occasioned. On the first application the Collector had determined the valuation and letters of administration had been granted. That was, however, subsequently revoked as the inventory and accounts were not filed. Hence a second application for letters of administration was made. No Court-fee was demanded as full Court-fee had been paid on the first occasion. In this context there is an observation that the valuation could not be revised unless the Collector made a motion u/s. 19-H (4) of the Act. Again on facts this case is quite different and has, therefore, no application. On the other hand Mr. N.K. Prasad, learned counsel appearing for the Caveator (opposite party), has placed his reliance on a Bench decision of this Court in the case of Mundrika Prasad Singh V/s. Mst. Kachnar Kuer, ( AIR 1955 Pat 362 ). In this case a copy of the list with the valuation was sent to the Collector. The Collector complying with the procedure prescribed by Sec.19-H (3) of the Act held an ex parte inquiry and submitted his own valuation to the Court. The petitioner objected to this valuation. The Court thereupon inquired into the matter itself by appointing a pleader commissioner. The Court there was of the Court of Additional District Judge. After hearing the parties and examining the report of the pleader commissioner the Additional District Judge fixed a valuation at a much higher rate than that given by the petitioner. It was held that there was no substantive departure from the procedure and the inquiry made by the Additional District Judge was justified. This authority thus shows that even though the Collector had not acted in accordance with the exact procedure laid down in Sec.19-H of the Act, the Court was justified in holding an enquiry in respect of the valuation. I think this is a more reasonable view of the matter. 5. In further support of the position that the Court cannot be stopped from satisfying itself regarding the correctness of the valuation. I may now refer to Rule 21. I think this is a more reasonable view of the matter. 5. In further support of the position that the Court cannot be stopped from satisfying itself regarding the correctness of the valuation. I may now refer to Rule 21. Chapter XI, Part II of the Patna High Court Rules which runs as follows:- "Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator is being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code of Civil Procedure." The position, therefore in the instant case now is that the petitioner has become the plaintiff, the caveator has become the defendant and the application has become a suit. It is also amply clear that the procedure laid down in the Code of Civil Procedure shall, as nearly as may be, be applicable to the suit. Under Order VII, Rule 11 of the Code of Civil Procedure, the plaint has to be rejected where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. This provision also permits the Court to require the plaintiff to correct the valuation. That incidentally means that it permits the Court to hold an inquiry into the valuation and make necessary orders because without making any inquiry the Court cannot call upon the plaintiff to correct the valuation. It would be idle to contend that however low and unconscionable value is given by the plaintiff, the Court must not suo motu take any initiative in the matter, even though it has materials before it. The Court cannot be a mute spectator to the plaintiffs device or attempt to escape Court-fees. 6. The next objection raised by Mr. It would be idle to contend that however low and unconscionable value is given by the plaintiff, the Court must not suo motu take any initiative in the matter, even though it has materials before it. The Court cannot be a mute spectator to the plaintiffs device or attempt to escape Court-fees. 6. The next objection raised by Mr. Mitter is that the valuation of the property given by the Controller of Estate Duty is for different purpose and that cannot, therefore, be taken as valuation for the purposes of obtaining probate in this Court. According to him the valuation to be fixed by the Controller is only for the purposes of Estate Duty and he may have different criteria (not known to us) for fixing the valuation. It may or may not be the market value of the assets. I would, however, show that the valuation given in this Court is correlated with the valuation before the Controller of Estate Duty. For this I would first refer to sub-clause (a) of sub-sec. (1) of Sec.56 of the Estate Duty Act, 1953 , which runs as follows:- "56 (1) In all cases in which a grant of representation is applied for- (a) the executor of the deceased shall, to the best of his knowledge and belief, specify in an appropriate account annexed to the affidavit of valuation filed in Court u/s. 19-I of the Court-fees Act, 1870, all the property in respect of which estate duty is payable upon the death of the deceased and shall deliver a copy of the affidavit with the account to the Controller." The word representation used in sub-sec. (1) of Sec.56 of the Estate Duty Act means probate of a Will (vide Sec. 2 (18) of the Estate Duty Act). It is amply clear from this that when an application for probate is made the Executor or the applicant has to give to the Controller a copy of the same valuation or account as given u/s. 19-I of the Act. Here in this case the duty has been paid only on the valuation mentioned in the application in accordance with Sec.19-I of the Act. On receipt of the application the Controller has to make an inquiry regarding the valuation in accordance with Sec.58 of the Estate Duty Act. According to sub-sec. Here in this case the duty has been paid only on the valuation mentioned in the application in accordance with Sec.19-I of the Act. On receipt of the application the Controller has to make an inquiry regarding the valuation in accordance with Sec.58 of the Estate Duty Act. According to sub-sec. (1) of Sec.58 of the Estate Duty Act, if the Controller is satisfied that the account given u/s. 56 of the Estate Duty Act is correct and complete, he can accept it and assess the Estate Duty. If he, however, is not so satisfied, he has to serve a notice on the person accountable (petitioner here) to attend in person and to adduce evidence in support of his account. This is done under sub-sec. (2) of Sec.58 of the Estate Duty Act. Thereafter the Controller takes evidence and assesses the principal value of the Estate of the deceased and determines the amount payable as Estate Duty. This he does under sub-sec. (3) of Sec. 58 of the Estate Duty Act. It is thus amply clear that the Controller, if he is not satisfied that the valuation given in the application is correct, shall conduct an inquiry in presence of the party concerned and pass an order. This has been done in this case also as will appear from the clearance certificate at flag 19. The representative of accountable person had appeared, the case was heard and the value was fixed in his presence. According to that the value comes to Rs. 1,09,950/-. The Estate Duty Act also provides for an appeal against the order of valuation made by the Controller (vide Sec.62 of the Estate Duty Act), but in this case the petitioner did not prefer any appeal whatsoever. It is thus clear that the petitioner has accepted the valuation fixed by the Controller. It is needless to repeat that the starting point for the Controller is also the valuation given in Sec.19-I of the Act which is the same as for this Court at the initial stage. From what has been said above it is amply clear that the Controller fixes a different valuation only when he does not accept that valuation to be correct. From what has been said above it is amply clear that the Controller fixes a different valuation only when he does not accept that valuation to be correct. The petitioner in this case therefore, who has not preferred an appeal against that order, cannot say that the valuation arrived at by the Controller is not binding on her and she can value the property for probate duty and estate duty differently. This objection of Mr. Mitter, therefore, is ruled out. 7 It is thus clear that the Court has ample powers to re-fix the valuation in a case like the present one and the Court would be perfectly justified in asking the petitioner to amend the valuation and pay additional duty. 8. The petitioner is accordingly required to amend the valuation in the petition in the light of the valuation mentioned in the estate duty clearance certificate by 22.04.1981 in the manner pointed out by office in its notes dated 5.12.1980. Let this case be listed under the heading for Orders on 24-4-1981 with fresh stamp report for payment of the deficit Court fee and for fixing a date of final hearing of this case.