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2010 DIGILAW 4231 (MAD)

Arjun Rajagopalan v. Collector of Chennai

2010-09-21

S.MANIKUMAR

body2010
Judgment :- 1. By impugned order dated 10.10.2009, the District Collector, Chennai, 1st Respondent herein, has directed the Petitioner to pay a sum of Rs.7,22,175/-as additional stamp duty for his property. The said order is under challenge in this Writ Petition. 2. According to the Petitioner, he filed O.P.No.656 of 2007 on the file of this Court under Testamentary and Intestate jurisdiction for grant of Letters of Administration with respect to the Will executed by Dr. E.V. Kalyani and the said Petition was filed on 14.6.2007. By order dated 3.1.2008, this Court granted an order of Letters of Administration, which was received by the Petitioner on 15.2.2008. While filing O.P.No.656 of 2007, under Sections 232 and 276 of the Indian Succession Act, the Petitioner has also filed an Affidavit of Assets setting out the various movable and immovable properties, left behind by the Testratrix-Dr. E.V. Kalyani, and the properties were also discussed in the Will dated 30.11.1994 executed by her. According to the Petitioner, he has paid necessary stamp duty on the valuation disclosed in the Affidavit of Assets and only after payment of necessary stamp duty for grant of Letters of Administration, orders were passed by this Court on 5.1.2008. 3. The Petitioner has further submitted that while filing O.P.No.5656 of 2007, this Court was also pleased to send a notice to the Office of the District Collector, Chennai, the 1st Respondent herein, on 10.8.2007 under letter in Roc.3176/2007 to ascertain the correctness of the value disclosed in the Affidavit of Assets. According to the Petitioner, the said notice issued by this Court to the Office of the Collector, Chennai, was only to ascertain as to whether the valuation disclosed in the Affidavit of Assets is proper and as per the market value and as per Section 59 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 or not. It is further submitted that on receipt of the notice from this Court, the Collector, Chennai, shall examine the same and may make or cause to make any officer subordinate to him to conduct an enquiry regarding the correctness of the valuation and if he finds that the valuation is not correct, he Collector shall call upon the Applicant to amend the valuation by filing necessary Application before this Court in the said proceedings. According to the Petitioner, no such motion was made after the expiry of six months from the exhibition of inventory required under Section 317 of the Indian Succession Act, 1925. 4. The Petitioner has further submitted that in the instant case, originally, the notice dated 24.8.2007 issued by the 1st Respondent was received on 12.9.2007 by the Petitioner as well as by the Tahsildar, Mylapore-Triplicane Taluk, Chennai, requesting the Petitioner to appear personally before the Tahsildar, Mylapore-Triplicane Taluk, the 2nd Respondent herein, to ascertain the correctness of the value as disclosed in the Affidavit of Assets filed before this Court in O.P.No.656 of 2009. 5. Thereafter, a communication in Letter No.B3/30911/2007 dated 15.10.2007 sent by 2nd Respondent on 15.10.2007, calling upon the Petitioner to furnish the particulars as stated therein. To assess the valuation of the property covered under the Will and as well as covered under the Affidavit of Assets filed in the above O.P before this Court was received. In response to the same, the Petitioner sent a reply on 10.11.2007 as required by the 2nd Respondent in Letter dated 15.10.2007. 6. Nearly, after a lapse of one year i.e., on 3.12.2008, a notice under Section 59(3) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, has been served on the Petitioner, wherein, the 1st Respondent has annexed a valuation report and that the same was received by the Petitioner on 5.12.2008 to which, the Petitioner has replied that the 1st Respondent without any basis and proper calculation has arrived at a different valuation and claimed the same as departmental value, for which, no basis was also furnished. Further, the Petitioner was called upon to appear an enquiry before the District Collector, Chennai, to appear on 24.12.2008. Since the Petitioner was traveling away, he made a specific request that it may not be possible for him on 24.12.2008. Thereafter, there was no communication received from the office of the 1st Respondent nor from the 2nd Respondent. 7. He has further submitted that the notice dated 3.12.2008 issued under Section 59(3) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 by the 1st Respondent was much later point of time the filing of the inventory of property and credits of the estate of Lat E.V. Kalyani before this Court. 7. He has further submitted that the notice dated 3.12.2008 issued under Section 59(3) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 by the 1st Respondent was much later point of time the filing of the inventory of property and credits of the estate of Lat E.V. Kalyani before this Court. According to him, the inventory was to be filed on 19.6.2008 within six months from the date of order of this Court on 3.1.2008, as mandated under the Testamentary and Intestate Jurisdiction. He, therefore, submitted that in the abovesaid factual background, the notice issued under Section 59(3) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, is in contravention of Section 59(5) of the Act, which states that no motion shall be made after the expiry of six months from the date of exhibition of inventory. 8. The Petitioner has further contended that if that be so, another notice dated 14.7.2009 signed on 10.9.2009 was served on the Petitioner calling upon him to pay the deficit stamp duty as determined by the 1st Respondent, within one week and the said notice was received by the Petitioner on 12.9.2009. A suitable reply has been made by the Petitioner’s Counsel to the 1st Respondent explaining that the demand is in contravention of the provisions of the Act. Though the reply sent by the Petitioner’s Counsel has been duly acknowledged by the office of the 1st Respondent nothing was forthcoming. Suddenly, again on 10.10.2009, the 1st Respondent has called upon the Petitioner to pay the alleged stamp duty of Rs.7,22,175/- within one week, failing which, necessary action would be taken under the Revenue Recovery Act. The abovesaid notice was received by the Petitioner on 14.12.2009 and thereafter an Advocate notice dated 20.12.2009 has been sent contending inter alia that the 1st Respondent has no jurisdiction to demand stamp duty as per the provisions of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 9. Referring to the notice dated 10.8.2007 under Letter in Roc.No.3176 of 2007 sent by this Court to the District Collector, Chennai, the grant of Letters of Administration dated sent by the office of the 1st Respondent under Section 59(3) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, Mr. 9. Referring to the notice dated 10.8.2007 under Letter in Roc.No.3176 of 2007 sent by this Court to the District Collector, Chennai, the grant of Letters of Administration dated sent by the office of the 1st Respondent under Section 59(3) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, Mr. K.V. Babu, learned Counsel for the Petitioner submitted that the entire proceedings initiated by the 1st Respondent is contrary to the provisions of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, and the 1st Respondent has filed to consider that the impugned notice dated 3.12.2008 issued by the 1st Respondent is much later, that the date on which the inventory was filed. 10. Inviting the attention of this Court to the decision made in V.S. Shanmugam and another v. The Personal Assistant (G) to the Collector of Madras, Office of the Collector of Madras and another, 2001 (3) MLJ 225 , learned Counsel for the Petitioner submitted that when the proceedings for grant of Probate and Letters of Administration are initiated in the Court, inventory has to be exhibited in Court and that the enquiry made by the Collector or his subordinates under Section 59(1) of the Act and the result of the same referred to in sub-section (3) only enables the Collector to call upon the Applicant for Probate or Letters to amend the valuation of the property. He submitted that the Collector’s role is only to assist the Court. If the determination made by the Collector is accepted by the Applicant for Probate and the value of the items are amended than the Collector can exercise powers under Section 61(4) of the Act. He further submitted that if the valuation is not amended in the manner decided by the Collector, the Collector must necessarily apply to the Court for determination of true value of the properties and merely because the collector has taken a long time for determination that by itself cannot be a reason for the Collector to assume the jurisdiction of the Court. He further submitted that in the case on hand, the Collector has assumed the jurisdiction on his own and called upon the Petitioner to pay the alleged deficit of Court Fee without approaching the Court, which issued the Letters of Administration. 11. He further submitted that in the case on hand, the Collector has assumed the jurisdiction on his own and called upon the Petitioner to pay the alleged deficit of Court Fee without approaching the Court, which issued the Letters of Administration. 11. Though notice has been served on the Respondents, no Counter Affidavit has been filed controverting the facts and therefore this Court proceeds to pass final orders on the merits of the Writ Petition. 12. Before adverting to the facts of this case, it is necessary to have a cursory look of few provisions of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. Section 55 of the Act reads as follows: Application for Probate or Letters or Administration. – (1) Every Application for the grant of Probate or Letters of Administration shall be accompanied by a valuation of the estate in duplicate in the from set forth in part I of Schedule III. (2) On receipt of such Application, the Court shall send a copy thereof and of the valuation of the Collector of the District in which the estate is situated, or if the estate is situated in more than one district, to the Collector of the district in which the most valuable portion of the immovable property included in the estate is situated. Section 59 of the Act deals with the powers of the collector to conduct an Inquiry and it is extracted hereunder: Inquiry by the Collector: (1) The collector to whom a copy of the application and of the valuation has been sent under Section 55(2), shall examine the same and may make or cause to be made by any officer subordinate to him such inquiry if any, as he thinks fit as to the correctness of the valuation or where a part only of the property is situated in his district, of the valuation of that part, and may require the collector of any other district in which any part of the property is situated to furnish him with the correct valuation thereof. (2) Any Collector required under sub-section (1) to furnish the correct valuation of any property shall comply with the requisition after making or causing to be made by any officer subordinate to him such inquiry, if any as he thinks fit. (2) Any Collector required under sub-section (1) to furnish the correct valuation of any property shall comply with the requisition after making or causing to be made by any officer subordinate to him such inquiry, if any as he thinks fit. (3) If the Collector is of opinion that the Applicant has underestimated the value of the property of the deceased, he may, if he thinks fit, require the attendance of the Applicant, either in person or by his agent, and take evidence and inquire into the matter in such manner as he may think fit, and if he is still of opinion that the value of the property has been underestimated, may require the Applicant to amend the valuation, and, if the Application for Probate or Letters of Administration is pending in Court, to file a copy of the amended valuation in such Court. (4) If, in any such case, the Probate or Letters of Administration has or have been granted and the Applicant amends the valuation to the satisfaction of the Collector and the Collector finds that a less fee has been paid than was according to the true value of the estate, he shall proceed under Section 61, sub-section (4) but if a higher fee has been paid than was payable according to the true value of the estate, the excess fee shall be refunded to the Applicant. (5) If the Applicant does not amend the valuation 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 value of the property. Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by Section 317 of the Indian Succession Act, 1925 (Central Act XXXIX of 1925). Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by Section 317 of the Indian Succession Act, 1925 (Central Act XXXIX of 1925). Section 61 of the Act deals with the procedure in cases where low fee has been paid and it reads as follows: Provision for cases where two low a fee been paid – (1) whew too a fee has been paid on any Probate or Letters of Administration in consequence of any mistake or of its not being know at the time that some particular part of the estate belonged to the deceased, if any Executor or Administrator, acting under such Probate or Letters, applies to the Collector in the from set forth in Part II of Schedule III and pays within six months after the discovery of the mistake or of any effects not known at the time to have belonged to the deceased, what is wanting to make up the fee which ought to have been paid at first on such Probate or Letters, the Collector shall, if satisfied that a low fee was paid in the first instance in consequence of a mistake and without any intention of fraud or to delay the payment of the proper fee, cause the probate or letters to be duty stamped. (2) If, in a case falling under sub-section (1), the Executor or Administrator does not, within the six months referred to in that sub-section, pay the deficit fee, he shall forfeit a sum equal to five times the deficit fee. (3) If, on Application being made under sub-section (1), the Collector is not satisfied that the Application was made within six months of the discovery of the mistake or of further effects not included in the original valuation or that payment of a low fee in the first instance was not due to a bona fide mistake, he shall cases the Probate or Letters to be duly stamped on payment of the deficit fee together with a penalty not exceeding five times such fee. (4) If, after the Grant of Probate or Letters of Administration of an estate, it is found by the collector as a result of proceeding under Section 59, or Section 60, or otherwise, that a less fee has been paid that was payable according to the true value of the estate he shall cause the probate or letters to be properly stamped on payment of the deficit fee, and if he is satisfied that the original undervaluation was not bona fide, he shall levy in addition a penalty not exceeding five times the deficit fee. (5) The Board of Revenue may remit the whole or any part of the amount forfeited under sub-section (2) or of any penalty under sub-section (3) or sub-section (4). Section 64 of the Act reads as follows: Recovery of penalties, etc. – Any excess fee found to be payable by an Applicant for Probate or Letters of Administration or by an Executor or Administrator, or any costs under Section 60, subsection (4), or any penalty or forfeiture payable by any such Executor or Administrator may, on the certificate of the Appropriate Authority specified in the Notification under sub-section (1) of Section 4 of the Tamil Nadu Board of Revenue Abolition Act, 1980 (Tamil Nadu Act 36 of 1980), be recovered from the Executor or Administrator as if it were an arrear of land revenue. 13. The facts of the reported judgment in the case of V.S. Shanmugam and another v. The Personal Assistant (G) to the Collector of Madras, Office of the Collector of Madras and another, 2001 (3) MLJ 225 , are as follows: The Will was dated 13.2.1981. O.P.No.542 was filed in the year 1986. Notice was issued before the grant of Letters of Administration. Letters of Administration was grant on 22.11.1986, in respect of the properties and credits of the Testatrix. Impugned notice to pay deficit Court fee on the items comprised in the estate of the Testatrix was issued on 14.2.1990, subsequently, an order Section 59 (5) of the Act was passed on 27.12.1993, when the challenge to the subsequent proceeding was tested in W.P. Nos.962 and 1604 of 1994, this Court, after considering the provisions under Section 55, 59 and 61(4) of the Act has quashed the order. In the reported case, it has been categorically held that the result of enquiry made by the Collector under sub-section (3) of Section 59 only enables the Collector to call upon the Applicant to amend the valuation and if the amendment is made, sub-section (4) of Section 59 and sub-section (4) of Section 64 would come into operation. If such amendment is not carried out by the Applicant, the Collector has no alternative, but to move the Court which issued the Probate Letters to hold an enquiry into true value of the property. Proviso to Section 59 provides period of limitation from the date of execution of the inventory, within which the Collector must move the Court. 14. In the present case, the inventory has been made on 19.6.2008. Admittedly, the Collector has not filed any Application to the Court when issued the Letters of Administration, within six months period as provided under the statute for determination of the true value of the property, as contemplated under Section 59(5) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Instead of assisting the Court, the Collector has assumed the jurisdiction of the Court and determined the alleged deficit and passed the impugned order directing the Petitioner to pay deficit Court Fee. Which is void ab initio, when no motion shall be made after the expiry of six months from the date of exhibition of inventory, the impugned order passed on 10.10.2009 is contrary to the provisions of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. In the light of the decision stated supra, this Court is of the considered view that the action of the 1st Respondent is without jurisdiction. Hence, the impugned proceedings are set aside. In the result, the Writ Petition is allowed. Consequently, M.P.No.1 of 2009 is closed. No costs.