Lakshmi Prasad v. Badri Ram — 1984 DIGILAW 269 (PAT)

Judgment SHIVANUGRAH NARAIN, J. 1. The controversy in this case relates to the court-fee payable in respect of a will dt. 20-11-1963 alleged to be the last will and testament of one Babu Lal bequeathing to Lakshmi Prasad, the petitioner in this case, his eight annas interest in a house bearing Holding No. 10 of the Gaya Municipality. Admittedly, Babu Lal died and thereafter Lakshmi Prasad, the sole legatee under the will, filed an application before the District Judge, Gaya, for letters of administration with the copy of the will annexed. That application was numbered as Letters of Administration Case No. 8 of 1965 and as it was contested, it was subsequently numbered as Title Suit No. 3 of 1967 and transferred to the Court of the Additional District Judge I, Gaya. In that proceeding, the value of the property was fixed at Rs. 2385 -and the petitioner had paid the requisite court-fee on that valuation. Title Suit No. 3 of 1967 was, however, dismissed for default on 24-6-1968. An application for restoring that title suit, which was registered as Miscellaneous Case No. 14 of 1968 was dismissed on 12-12-1968. 2. The petitioner Lakshmi Prasad filed a fresh application for letters of administration with a copy of the will annexed in the Court of the District Judge. Gaya, which application was registered as Letters of Administration Case No. 21 of 1968 and was subsequently converted, on contest, into Title Suit No. 6 of 1969/4 of 1973. In this application, the petitioner referred to the earlier letters of administration case and the fact that he had already paid the court-fee after fixation of the value of the property. The applicant filed an affidavit of valuation and it was directed to be sent to the Collector, Gaya, for his valuation report. By that time, the case had been transferred to the 3rd Additional District Judge, Gaya, and ultimately it was transferred to the 2nd Additional District Judge, Gaya. By his letter dt. 24-9-1975, the Civil Suit Deputy Collector, Gaya, intimated to the Court that the valuation of the property set forth in the valuation affidavit had been enquired into by the Circle Inspector, Manpur, who had reported that the present market value of the house was Rs. 25.000/-. Thereafter, the Seristedar of the Court reported that the court-fee payable on the valuation of Rs. 25,000.00 was Rs. 1202-50. 25.000/-. Thereafter, the Seristedar of the Court reported that the court-fee payable on the valuation of Rs. 25,000.00 was Rs. 1202-50. On 27-11-1975, along with the stamp report of the Seristedar, the matter was placed before the Court. It appears that the petitioner applied for time and the Court by its order of that date directed the petitioner to deposit the court-fee reported by the seristedar by 13-12-1975. On 13-12-1975 and 3-1-1976, the petitioner filed further petitions for time. On 15-1-1976, the next date fixed for payment of the court-fee, the petitioner filed an application to call for the records of Title Suit No. 3 of 1967 and for passing of necessary orders after perusing the same, and those records were called for. Awaiting the records, 3-4-1976 was fixed for hearing on the question of valuation. On 3-4-1976 also, the records were not received, and on that date while reiterating the prayer for calling for the records of Title Suit No. 3 of 1967, by his petition the petitioner stated that the valuation fixed was exorbitant and asserted that the valuation had already been fixed in the earlier case and the court-fee, according to the valuation, had already been paid. The Court again directed that the records be called for. The records were received and thereafter on 11-11-1976, the arguments were heard on the court-fee matter, and by his order dt. 15-11-1976, the learned Additional District Judge overruled the contention of the plaintiff-petitioner that as he had already paid the court-fee, he was not to pay any further court-fee on the present valuation of Rs. 25,000/-, and observing that the plaintiff petitioner did not challenge the correctness of the valuation report submitted by the Collector held that the petitioner had to pay the court-fee on the present valuation of the estate of the deceased and directed the plaintiff-petitioner to pay the court-fee (wrongly called the stamp duty by the learned Additional District Judge) of Rs. 1202.50 on the value of the property reported by the Collector. It is against that order of the learned Additional District Judge that the present application is directed. 3. 1202.50 on the value of the property reported by the Collector. It is against that order of the learned Additional District Judge that the present application is directed. 3. Sec.19H of the Court Fees Act, 1870 (hereinafter called "the Act") requires the Court, other than a High Court, before whom an application for probate or letters of administration is made to give notice of the application to the Collector, and if the Collector is of the opinion, and even after inquiry he continues to be of the opinion, that the petitioner has under-estimated the value of the property of the deceased, he may require the petitioner to amend the value. And if the petitioner does not amend the value to the satisfaction of the Collector, the Collector may move the Court before which the application for probate or letters of administration was made to hold an inquiry into the true value of the property. Sub-s. (5) of S.19H requires the Court, when so moved, to hold, or cause to be held, an inquiry and to record a finding as to the true value at which the property of the deceased should have been estimated. In the present case, the petitioner has valued the assets which were likely to come to the hands of the petitioner from the estate of the deceased at Rs. 1,000/-. The petitioner had not amended the valuation of the property in accordance with the opinion of the Collector. On the valuation which was reported to the Court by the Civil Suit Deputy Collector, the value of the property of the deceased was Rs. 25,000/-. It appears that the Civil Suit Deputy Collector had reported the valuation at the instance of the Collector and the Court had three options. (i) it could seek a clarification from the Collector as to whether the Collector was making an application to the Court under sub-sec.(4) of S.19H to hold an inquiry into the true value of the property, (ii) ignore the report as no application for inquiry under sub-sec.(4) had been made and demand court-fee on the basis of the valuation of the property as given in the application for letters of administration, and (iii) treat the report as an application under sub-sec.(4) of S.19H and proceed to hold an inquiry into the true value of the property. The Court below has obviously not ignored the valuation reported by the Collector and has proceeded to act upon it. Before acting upon it, however, it was its duty under sub-section (5) to hold an inquiry into the value of the property of the deceased. It could not proceed to assess the court-fee on the basis of the valuation of the Collector without making an inquiry. There has therefore, been a substantial departure from the procedure prescribed under sub-sec.(5) of S.19H of the Act. It must therefore, be held that the learned Additional District Judge acted illegally in the exercise of his jurisdiction in calling upon the petitioner to pay court-fee on the valuation reported by the Collector, even assuming that the learned Additional District Judge was right in his view that the court-fee already paid on the previous application for letters of administration could not be taken into account. 4. The learned Additional District Judge has stated in the order under revision that the plaintiff does not challenge the correctness of the valuation report submitted by the Collector and the valuation was found as at the time when the application was filed. In the revision petition which is supported by an affidavit affirmed by the petitioner himself, this statement in the order has been controverted and reference is made to the application dt. 15-1-1976, according to which as I have already stated, according to the petitioner, the valuation fixed by the Collector was exorbitant. It is not stated in the order that the learned counsel appearing for the petitioner in the Court below abandoned this part of the case of the petitioner and, therefore, it appears to me that the statement in the order that the plaintiff did not challenge the correctness of the valuation report is not correct and is due to misapprehension induced by the fact that the principal contention on behalf of the petitioner before the Court below was that having paid probate duty in the earlier case, the petitioner was not liable to pay any probate duty in the present case. 5. Upon the aforesaid finding, the application must be allowed and the matter of the probate duty payable by the petitioner remitted to the Court below for a fresh decision in accordance with law. 5. Upon the aforesaid finding, the application must be allowed and the matter of the probate duty payable by the petitioner remitted to the Court below for a fresh decision in accordance with law. However, the question whether as probate duty has been paid in the earlier case, the petitioner is not required to pay any probate duty in the present case or is entitled to any credit for the duty paid earlier, is one of the principal questions in controversy in this case and is the question which has necessitated the reference of this case to a Division Bench, I propose to decide that question. 6. Sec. 6 of the Act provides that "No document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded....... unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document". Sec.191 of the Act runs thus : "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." Article 11 of Sch.I of the Act provides for payment of ad valorem court-fee on the amount or value of the property in case of "Probate of a will or letters of administration with or without will annexed". Thus, as Chagla, J. (as he then was) pointed out In re Jerabai K. Kapadia AIR 1945 Bom 1, "what is charged is neither the application for probate nor the order entitling the petitioner to grant of probate but the probate itself. "Substantially the same view was taken by Meredith, J. (as he then was) in Suraj Narain Gupta V/s. Sarosi Bala Devi, AIR 1945 Pat 86, for, he observed that the effect of these provisions is "to make the fee payable not upon the application but as a condition precedent to the grant of probate". "Substantially the same view was taken by Meredith, J. (as he then was) in Suraj Narain Gupta V/s. Sarosi Bala Devi, AIR 1945 Pat 86, for, he observed that the effect of these provisions is "to make the fee payable not upon the application but as a condition precedent to the grant of probate". It is equally clear from Sec.191 that the court-fee, to use the words of Chagla, J., in the aforesaid case, "is to be collected at a point of time anterior to the making of the order entitling the petitioner to the grant of probate". As ad valorem court-fee on the value of the property has to be paid, the payment must be made in the case of a dispute regarding the valuation of the property between the Collector and the applicant for probate or letters of administration, as soon as the question of valuation has been decided by the Court. 6A. The next question is what is the crucial date for ascertaining the value of the property of the estate of the deceased. That question was considered by a Bench of this Court in Dy. Commr. of Singhbhum V/s. Jagdish Chandra Deo Dhabal Deb, AIR 1921 Pat 206 and the Bench held that the true value of the estate must be its value at the date of the application for probate or of letters of administration, and not the value at the death of the testator. The same view was taken by a Bench of the Madras High Court in the matter of the will of Ramchand Gurdasmal, AIR 1956 Mad 277 . Court-fee in the shape of probate has, therefore, to be paid on the value of the property in respect of which the grant of probate or letters of administration is prayed for and would be made and the date for ascertaining the value is the date for making the application for probate. 7. In the present case, two applications for grant were made; one on 29-5-1965, on the basis of which Title Suit No. 3 of 1967 was registered, and the present one filed on 16-12-1968. We are concerned with determining the probate duty payable upon the application made on 16-12-1968, the previous application having been dismissed for default. 7. In the present case, two applications for grant were made; one on 29-5-1965, on the basis of which Title Suit No. 3 of 1967 was registered, and the present one filed on 16-12-1968. We are concerned with determining the probate duty payable upon the application made on 16-12-1968, the previous application having been dismissed for default. It is, therefore, manifest that the value of the property has to be ascertained as on 16-12-1968, and not on 29-5-1965, on the basis of which probate fee was paid by the petitioner in the earlier case. The value of the property in respect of which grant (is sought) of letters of administration as on 16-12-1968 may be, and in all probability will be, higher on 16-12-1968 than on 29-5-1965 in view of the steady trend of increase in valuation of immovable property. I am, therefore, unable to accept the contention on behalf of the petitioner that because the petitioner had already paid court-fee in respect of grant of probate of the property covered by the will in the earlier case, no further demand of court-fee in the shape of probate duty can be made in the present case, even if the value of the property may have changed. Upon the view that court-fee has to be paid on the value of the property on 16-12-1968, and not on the value as on 29-5-1965, it is manifest that in any view of the matter, if the value of the property has increased in the meantime, the petitioner is bound to pay the difference between the court-fee paid by him on the value of the property as on 29-5-1965 and the increased court-fee payable on the increased value of the property as on 16-12-1968. 8. The question, however, remains whether in making payment of the probate duty, the petitioner is entitled to adjust or claim credit for the court-fee paid by him in the earlier case. No decision in which the precise point has been decided has been cited before us. The decision reported in ILR (1979) 1 Cut 725 which, according to the learned counsel for the State negatives this contention is unfortunately not available, and though the learned counsel for the State took time to produce a copy of that judgment, he has not been able to do so. The question, therefore, has to be decided on general principles. The decision reported in ILR (1979) 1 Cut 725 which, according to the learned counsel for the State negatives this contention is unfortunately not available, and though the learned counsel for the State took time to produce a copy of that judgment, he has not been able to do so. The question, therefore, has to be decided on general principles. Now the learned counsel for the State is clearly right in contending that S.19C of the Act which provides that in certain circumstances no fee shall be chargeable under the Act when a like grant of probate or letters of administration has been made in respect of whole or any part of the same property belonging to the same estate, does not in term apply. It applies only whenever a grant of probate or letters of administration has been or is made. In the present case, no earlier grant of probate or letters of administration had been made. The decisions reported in (1871) 16 Suth WR 253 and 20 CWN 472 : (AIR 1916 Cal 290) are all cases in which earlier grant of probate or letters of administration had been made. It does not, however, follow that merely because the case of the petitioner does not fall under sec. 19C of the Act, the petitioner cannot claim credit for the court-fee paid by him in the earlier case. It is true, as the Court below has pointed out, that the earlier application had been dismissed and is dead for all practical purposes. But the fact that the earlier application is dead for all practical purposes will not, in my opinion, initially lead to the conclusion that no credit for the court-fee paid at that time can be allowed to the petitioner. Such a conclusion would have been justified if the court-fee or probate duty was payable on the application for probate. But as I have already shown, the probate duty is to be paid not on the application for probate, in which expression I am including the duty payable for grant of letters of administration with copy of the will annexed, but on the grant of probate or letters of administration itself, even though it may have been collected earlier. But as I have already shown, the probate duty is to be paid not on the application for probate, in which expression I am including the duty payable for grant of letters of administration with copy of the will annexed, but on the grant of probate or letters of administration itself, even though it may have been collected earlier. The conditions precedent for grant of probte so far as the question of court-fee is concerned, are two, namely, (i) that the petitioner has filed in the Court a valuation of the property in the form set forth in Sch. 3, and (ii) that the Court is satisfied that the fee mentioned in Art.11 of Sch. I has been paid. The Court has to be satisfied about the fact of payment previous to the grant, and not the fact of payment along with or subsequent to the present application. The Act is a fiscal measure and the State is interested only in the revenue. If the revenue has been paid, the object of the Act is satisfied. Further, in my opinion, it is reasonably possible to hold that the Court can be satisfied regarding the payment of duty in respect of the property covered by the will and which is to be the subject of the grant when payment has, in fact, been made, though not upon the present application for the grant. The Court Fees Act is a fiscal enactment and in construing it, "the benefit of any doubt", to use the words of Stone, C.J., In re Jerbai K. Kapadia (AIR 1945 Bom 1) (supra) "is the right of the subject". There are no words specifically enacting that payment made by earlier application has to be excluded in determining where payment has been made. Nor I am able to hold that the Act so provides by necessary intendment. I will, accordingly, hold that in computing the court-fee payable for the grant of letters of administration, the petitioner is entitled to credit for the payment of the court-fee already made by him in Title Suit No. 3 of 1965. 9. Nor I am able to hold that the Act so provides by necessary intendment. I will, accordingly, hold that in computing the court-fee payable for the grant of letters of administration, the petitioner is entitled to credit for the payment of the court-fee already made by him in Title Suit No. 3 of 1965. 9. I will, accordingly, allow the application and remand the matter to the Court below for a fresh decision on the question of valuation of the property in respect of which the grant of probate has been prayed for and has to be made and for a fresh decision on the court-fee payable by the petitioner thereon in accordance with law and in the light of this decision. In the circumstances of the case, I would make no order as to costs. ABHIRAM SINGH, J. 10 I agree.