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2008 DIGILAW 2396 (RAJ)

Sunder Bai v. Sanjay Kumar

2008-10-24

SANGEET LODHA

body2008
JUDGMENT 1. - This writ petition is directed against order dated 11.7.2007 passed by the learned District Judge, Pratapgarh in Civil Misc. Case No. 18/2002, whereby the applications preferred by the petitioner under Order 14, Rule 5 of C.P.C. for amendment of the issues No. 3 and 5 has been rejected. 2. At the outset, the learned counsel appearing on behalf of the petitioners submits that he does not want to press the writ petition against the impugned order to the extent of rejection of the application preferred by the objector-petitioner for amendment of issue No. 5 framed by the learned Court below. 3. The relevant facts in nutshell are that the respondent Sanjay Kumar has submitted a petition under Section 276 of Indian Succession Act before the learned District Judge, Pratapgarh for the probate on the basis of the Will executed by late Shikhar Chand Dungarwal R/o Barawaria in his favour on 17.6.2001. In pursuance of the citation issued by the learned District Judge, the petitioner lodged a caveat and filed reply to the probate application. It is stated by the petitioner in the reply filed that the Will produced is a concocted document. That apart, the petitioner has taken the stand that the property schedule shown in the probate application is owned by her, therefore, if there is any Will existing as stated by the applicant Shri Sanjay Kumar, the same has no effect. Precisely, the stand taken by the petitioner that nobody can pass a better title than what he himself possesses and, since the property belongs to her therefore, the Will executed by an unauthorized person is void ab initio. 4. On the basis of the aforesaid application, the learned trial Court formulated the points for determination and a specific issue i.e. issue No. 3 has been framed with regard to the valuation of the property, which reads as under : " 3- vk;k oknxzLr lEifr dk ewY;kadu de fd;k x;k gSa\    vkifRrdrkZx.k " 5. It is submitted by the learned counsel that it is the obligation of the applicant to make the appropriate valuation of the disputed property therefore, the burden of proof of the aforesaid issue cannot be fixed upon the objectors-non applicants and therefore, the issue deserves to be amended in terms that the burden to prove said issue rests on the applicant. 6. 6. Per contra, the learned counsel for the respondents submitted that the petitioner in his reply to the application has stated that the property in question has been under valued therefore, the burden to prove the issue No. 3 has rightly been fixed upon the petitioner. That apart, the learned counsel submitted that the question of valuation of the property will arise only when the probate is granted therefore, at this stage, the question of valuation of the property is not relevant. 7. I have considered the rival contentions and perused the record. 8. It is to be noticed that in the probate application besides the immovable properties, the probate is sought for movable properties i.e. Insurance Policy of Rs. 1 lac so also for bank and F.D. Accounts existing in the name of testator. Yet, the valuation of the property has been made by the applicant as Rs. 50,000/- only. The petitioner while filing the reply to the application has stated that the valuation of the immovable property made in the application seeking probate is less than the actual value. 9. It is to be noticed that the Court fee payable on an application for probate and the Court fee levied on grant of probate, are governed by two different entries incorporated in the schedules I and II of Rajasthan Court Fees and Valuation Act, 1961 (in short "the Act of 1961" hereinafter). The Court fee payable on an application for probate is governed by entry No. 11(j) of Schedule II of the Act of 1961 whereas, the Court fee payable on grant of probate is governed by entry No. 6 of the Schedule I of the Act of 1961. Thus, from the bare reading of these two entries, it is manifestly clear that the Court fee payable on an application for probate is different from the Court fee payable on grant of probate. Further, if an application for probate is contested and same is registered as suit then, by virtue of proviso to Article 11(j) of the Schedule II of the Act of 1961, the Court fee payable shall be 1/2 of the scale of the fee as prescribed under Article 6 of Schedule I i.e. on the market value of the estate less the fee already paid on the application. Therefore, it is the obligation of the applicant to disclose the correct valuation of the property. Therefore, it is the obligation of the applicant to disclose the correct valuation of the property. Thus, in considered opinion of this Court, the contention of the learned counsel for the respondent that the question of valuation of the property will arise only when the probate is granted, appears to be devoid of any merit. 10. Adverting to the facts of the present case, the valuation of the property having been disputed by the non applicant if, any issue in this regard is required to be framed then obviously, the burden to prove the said issue should rest on the applicant and not on the non applicant. In this view of the matter, in considered opinion of this Court, the learned trial Court has seriously erred in placing the burden of proof on the said issue on the non applicants. Thus, the application seeking amendment of issue No. 3 preferred by non applicant deserves to be allowed. 11. In the result, the writ petition is partly allowed. The order impugned passed by the learned trial Court to the extent of rejection of the application of the petitioner for amendment of issue No. 3 is set aside. The application preferred for amendment of issue No. 3 by the non applicant, petitioner herein, is allowed. The issue No. 3 shall stand modified as suggested by the petitioner in the application preferred before the learned trial Court. No order as to costs.Petition allowed. *******