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2005 DIGILAW 343 (CAL)

ANUKUL CHANDRA MAITY v. RENUKA RANI PRODHAN

2005-05-18

NARAYAN CHANDRA SIL

body2005
Narayan Chandra Sil ( 1 ) THIS is to consider a revisional application under Article 227 of the constitution of India which is directed against Order No. 19 dated 3. 1. 2004 passed by Sri P. K. Roy, District Delegate in the Court of District Delegate, tamluk in connection with J/misc. Case No. 49 of 1973 arising out of an application for Probate of a Will under Section 276 of the Indian Succession act. ( 2 ) IT appears from the order impugned that the ma n dispute relates to the payment of Court Fees in granting probate. In the instant case, what happened is that the petitioner filed an application for granting probate in the year 1978 and on 25. 2. 1978 the learned District Delegate passed the ex-pane order to the effect that the applicant not the probate of the Will (Exbt. 1) executed by the testator, Sashi Bhusan Maity since deceased. Thereafter, no step was taken by the petitioner for grant of probate and it was only in 2004 the petitioner came before the Court with a prayer to grant probate. The learned District Delegate in such circumstances passed in order on 16. 5. 2003 directing for writing a letter to the Collector in order to submit a report regarding the valuation of the scheduled properties. Thereafter, the petitioner filed another application with a prayer for modification of the said order dated 16. 5. 2003 and whereby the learned district Delegate sought for the report from the Collector as regards the valuation of the property in schedule. It is also insisted on by the petitioner that the learned District Delegate should act on the accepted valuation by the Court. But that prayer was refused and hence, this revisional application. ( 3 ) MR. P. B. Sahu learned Counsel appearing along with Mr. Sudhakar biswas and Mr. Amit Baran Das, the learned Advocates for the petitioner submits that valuation once accepted cannot be changed but the Court fees on such valuation at the present rate is to be paid. In order to substantiate his claim Mr. ( 3 ) MR. P. B. Sahu learned Counsel appearing along with Mr. Sudhakar biswas and Mr. Amit Baran Das, the learned Advocates for the petitioner submits that valuation once accepted cannot be changed but the Court fees on such valuation at the present rate is to be paid. In order to substantiate his claim Mr. Sahu has referred to the ratio decided in the case of In the Goods of R. N. Clerk (AIR 1933 Lahore 936) wherein it was decided that the date of valuation of the estate is the date of application for probate and Court fees to be paid by the applicant may be revised subsequently. Mr. Sahu has also referred to a ratio decided in the case In the matter of Court Fee reference (AIR 1952 Allahabad 639 ). It was held in that case that the valuation has to be according to the market rates prevalent on the date of the application. In the other case, In the Re-Ramchand (AIR 1951 Madras 277) as referred to by Mr. Sahu it was held as below :-"reading the words of Paragraph 3 into words of Paragraph-1 of the affidavit given in Schedule III of the Court Fees Act, it is clear that in the case of a probate duty as is levied by Article 11 of the First schedule of the Court Fees Act, the value of the estate as on the date of the death of the deceased is not the criterion and that the critical date for fixing the value is the date of the application for probate or letters of administration. Further, the mere fact that an executor has been able to obtain payment of an interest which accrued to him after the date of the death of the deceased testator is not to be excluded from the computation of the value for the purpose of probate duty. Thus, the interest received by the executor after the date of the death of the deceased testator and before the application has to be included in the affidavit of assets and Court fee paid on the same. " ( 4 ) IT is argued by Mr. Thus, the interest received by the executor after the date of the death of the deceased testator and before the application has to be included in the affidavit of assets and Court fee paid on the same. " ( 4 ) IT is argued by Mr. Sahu from "the Indian Succession Act, 1925 9th Edition by Paruk" that the fee payable is on the value of the movable and immovable property and such valuation is to be made as on the date of the petition and not the date of death of the deceased. Mr. Sahu has also referred to the decision made in the case of Mihir Saha v. Tanmoya Saha (2005 (1) CHN Calcutta 606 ). It was held in that case that the Court fee is to be paid on the grant of probate at the rate prevailing on that date. The ratio decided in the case of Hare Ram Singh Choudhury v. Ram Ram Singh choudhury (26 Calwn 285) has also. . . . . . . . It was held there that the date of grant of probate is the date on which the order granting probate is passed and not on which an order is passed that probate should issue. ( 5 ) MR. Sahu has also referred to the ratio decided in the case of Lakhya dasya v. Uma Kanta Chakraborty (14 Calwn 256), in the said case the executor who had obtained an order for grant of probate but did not take out probate, it may represent an estate in suit in order to complete the grant. ( 6 ) MR. Debasis Kar Gupta, learned Counsel appearing forthe learned advocate General along with Mr. Anup Das, learned Advocate has drawn my attention to Paragraphs 9 and 12 of the petition and submits that those two paragraphs say something which is different from the submissions of the learned Advocate forthe petitioner. In Paragraph 9 the petitioner stateda case law reported in 2004 (1) CLJ 56 in which, it is stated, it was held that the amended Court Fees Act is not applicable in respect of cases which were instituted earlier and the litigan his vested right to proceed according to the old Act. In Paragraph 12 the petitioner stated that unamended Court fees to be paid by the petitioner is Rs. 10,000/ -. ( 7 ) MR. In Paragraph 12 the petitioner stated that unamended Court fees to be paid by the petitioner is Rs. 10,000/ -. ( 7 ) MR. Kar Gupta submits that the Court fees need not be paid at the time of filing of the petition for probate and unless and until the probate is granted the title of the testator is not bestowed upon the executor/beneficiary. But for the purpose of granting probate, Court Fees are to be paid. From the facts and circumstances of the case Mr. Kar Gupta has pointed out that now the petitioner has come and so the present valuation of the property is to be. . . . . as the crucial date is the date of transfer. What Mr. Kar Gupta wants to say is that question of payment of Court fees comes only at the time of transfer. Thus, it appears from the submission of Mr. Kar Gupta that unless and until the Court fees is paid there is no transfer of title on the probated property in favour of the executor or the beneficiary and at the time of such transfer Court fees is to be paid at the prevalant market value. ( 8 ) MR. Kar Gupta has drawn my attention to Schedule III and tries to impress upon me that the market value is to be taken into consideration. He has further taken me through the provisions of Section 317 (1) and (3 ). The said section deals with the inventry and account. It is provided there that an executor or administrator shall within six (6) months from the grant of probate or letters of administration or within further time as the Court which granted the probate or letters may appoint exhibit in. that Court an inventory containing a full and true estimate of all properties in possession etc. But there appears no such steps to have beem taken by the petitioner. And as such, the provisions of Order 7 Rule 11 (c) of the Code of Civil procedure came to operate. that Court an inventory containing a full and true estimate of all properties in possession etc. But there appears no such steps to have beem taken by the petitioner. And as such, the provisions of Order 7 Rule 11 (c) of the Code of Civil procedure came to operate. On perusal of that provisions of Rule 11 (c) of the Code it appears that the plaint shall be rejected where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply to requisite stamp paper within a time to be fixed by the Court, fails to do so. It is admitted by mr. Kar Gupta that the petition for probate is not in fact in the nature of a plaint, but the procedure of the Code is to be applied in view of the provisions of Section 268 of the Indian Succession Act. ( 9 ) IN any case, I do not find any application of Order 7 Rule 11 (c) of the Code of Civil Procedure in the instant case. There is no direction of the court upon the petitioner to file the Court fees or any Court fees for filing of the application for granting of probate. ( 10 ) IN fact the main question for consideration before this Court is the payment of Court fees on probate application at the time of granting probate and in doing so what should be the basis of such rate. ( 11 ) ADMITTELY an application was filed before the learned District delegate in the year 1973 -for granting probate the said case was allowed ex-parte on 25,2. 1978 but the probate certificate was not issued and only on 14. 12. 2001 the petitioner moved before the learned District Delegate for granting probate certificate. It is clearly mentioned in the application that the petitioner came up before the Court after a lapse of more than 20 years from the date of passing the order granting probate to pay the highest court fees. And in such circumstances, the question came up for consideration before this Court as to whether the petitioner's valuation of the property is to be made de novo according to the market price and thereafter Court fees is to be paid according to the provisions of the prevalant act. ( 12 ) MR. And in such circumstances, the question came up for consideration before this Court as to whether the petitioner's valuation of the property is to be made de novo according to the market price and thereafter Court fees is to be paid according to the provisions of the prevalant act. ( 12 ) MR. Kar Gupta has relied on the ratio decided in the case of Mihir saha v. fanmoya Saha, 2005 (1) CHN (Cal) 606. It was held in that case that an applicant for grant of probate is required to file application initially before the learned District Delegate with a fixed Court fee as provided in serial No. 9 of Schedule II of the West Bengal Court Fees Act, 1970 as amended 2002. Finally if the Court decides to grant probate after being satisfied that the Will in question was really the last Will and testament of the deceased testator etc. It is under the obligation of the petitioner to pay further Court fees on the basis of the entire valuation of the property covered by the Will as provided in Serial No. 10 of Schedule I. It has been made clear by the learned Single Judge there that Serial No. 10 of Schedule I of the Act will come to play its role only when the Court decides to grant probate. It was also held in that case that there is no dispute that the Court fees is to be paid on the date of granting probate according to the prevalent Court fees Act. In the instant case, dispute is otherwise there is no dispute as regards the payment of Court fees in terms of the amended Court Fees Act but the dispute centres around the question whether the valuation of the property covered by the Will will be according to the prevalant market rate on the date on which such grant of probate is made. ( 13 ) IN order to determine the above question it is to be understood in proper perspective as to what is meant by grant of probate and that will determine consequently the rate of Court fees prevalant on the date. ( 14 ) THERE is subtle difference between allowing of the petition for granting probate. ( 13 ) IN order to determine the above question it is to be understood in proper perspective as to what is meant by grant of probate and that will determine consequently the rate of Court fees prevalant on the date. ( 14 ) THERE is subtle difference between allowing of the petition for granting probate. From the framework of the Indian Succession Act it is clear that on taking evidence and considering the materials-on-record if the Court finds that Will is genuine and executed in the manner as provided in the Act itself it finally allow, the application for granting probate. This is not in fact the granting of probate itself. In orderto get probate in hand the petitioner is to wait for granting of probate only on payment of requisite court fees on the valuation of the property. ( 15 ) IN the instant case, the application of probate was granted in the year 1978. But till today the probate has not been granted as for the lack of initiative to be taken by the petitioner and thereby the petitioner has invited the provisions of the amended Court Fees Act, 1970. Schedule I of the west Bengal Court Fees Act deals with the rates of Court fees of various kinds of properties whereas Schedule 11 is in respect of fixed fees to be paid before the various departments/authorities. ( 16 ) IN fact, the ratio. decided in the case of Mihir Saha (supra) does not decide this dispute as to what should be the date for the purpose of valuation of the property to be taken for consideration to determine the rate of Court fees. Now I shall hark back to the different case laws cited by the learned Advocate for the petitioner and already discussed in the foregoing lines. Thus, the ratio decided in the cases of (1) In the Goods R. N. Clerk (supra) and (2) In the matter of Court Fees Reference (supra) it is decided that there will be no change of the valuation of the properties covered by the Will at the time of granting probate. From that point of view I cannot be in agreement with Mr. Kar Gupta, learned Counsel appearing for the learned advocate-General. ( 17 ) THUS, the learned District Delegate erred in passing the order impugned dated 3. 1. From that point of view I cannot be in agreement with Mr. Kar Gupta, learned Counsel appearing for the learned advocate-General. ( 17 ) THUS, the learned District Delegate erred in passing the order impugned dated 3. 1. 2004 holding that the valuation calculated by the collector at that relevant point of time was not acceptable to the Court. The revisional application is thus allowed. The learned District Delegate is directed to grant probate on payment of Court fees according to the provisions of the Amended West Bengal Court Fees Act on the valuation made by the collector earlier which was fixed at Rs. 26,195,00/ -.