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2013 DIGILAW 1195 (BOM)

Akshay Kantilal Mehta v. .

2013-07-02

D.Y.CHANDRACHUD, S.C.GUPTE

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JUDGMENT (Dr. D.Y. Chandrachud, J.) Admit. By consent of the learned counsel and at their request, the Appeal is taken up for hearing and final disposal. 2. The Appeal arises from an order of the Learned Single Judge dated 6 February 2013. The order was passed in a Testamentary Petition which was instituted for the probate of a joint will executed by the testator and his wife. The will was executed by both of them on the same date and at the same time. The issue before the Learned Single Judge related to the payment of Court fees. The Learned Single Judge held that the estate of both the testator and the testatrix will have to be separately valued and subject to a separate valuation the Petitioner as the executor under the joint will may sue for the probate of the will executed by the testator and testatrix. The order of the Learned Single Judge reads thus: “Not on board. Mentioned. Taken on board. The petition is filed for probate of the joint will of Kantilal Narayandas Mehta and Indumati Kantilal Mehta. The will has been executed by both of them on the same date and time. It is attested by two attesting witnesses. Being joint will it disposes of the properties of both the testator and testatrix. One probate would have to be issued in respect of the entire estate of the testator and the testatrix. However the estate of both the testator as well as testatrix will have to be separately valued. Subject to the separate valuation of the estate being shown, the petitioner as the executor under the joint will may sue for probate of the joint will of both the testator and the testatrix. The petitioner shall pay the Court fee for the grant of probate of both the testator and the testatrix separately valuing their immovable properties or their respective shares in the joint immovable properties separately. Petition shall proceed accordingly.” 3. Section 18 of the Bombay Court Fees Act provides as follows: “18. Multifarious suits.- Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable under this Act. Multifarious suits.- Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable under this Act. Nothing in the former part of this section shall be deemed to affect the powers conferred by the Code of Civil Procedure, 1908, Schedule I, Order II, rule 6.” 4. The next provision to which a reference would have to be made is Section 23 which provides thus: “23. Relief in case of several grants. - Whenever a grant of probate or letters of administration has been or is made in respect of the whole of the property belonging to an estate, and the full fee chargeable under this Act has been or is paid thereon, no fee shall be chargeable under the same Act when a like grant is made in respect of the whole or any part of the same property belonging to the same estate. Whenever such a grant has been or is made in respect of any property forming part of an estate, the amount of fees then actually paid under this Act shall be deducted when a like grant is made in respect of property belonging to the same estate, identical with or including the property to which the former grant relates.” 5. Under Article 10 of the Schedule, the Court fee payable on probate of a will or letters of administration with or without a will annexed has been specified. When the amount of value of the property in respect of which the grant of probate or letters of administration is made exceeds Rs.3 lacs, seven and a half per cent is chargeable on that part of the amount or value in excess of Rs.3 lacs subject to a maximum of Rs.75,000/-. 6. In our view, the Learned Single Judge is in error in requiring a separate valuation to be made both of the estate of the testator and the testatrix and in directing that the Court fee shall be paid for the grant of probate of the wills executed by the testator and the testatrix separately valuing their shares in the joint immovable properties. There is one joint will executed by the testator and the testatrix. There is one joint will executed by the testator and the testatrix. Probate has been sought of the joint will executed by both the testator and the testatrix. The subject matter of the petition for probate is one viz. the probate of the joint will. In these circumstances, and particularly having regard to the provisions of Section 23 read with the First Schedule, we are of the view that the Learned Single Judge was in error in issuing the impugned directions. 7. Hence, while allowing the Appeal, we set aside the order of the Learned Single Judge and direct that one set of Court fees shall be paid on the valuation of the entire estate. Counsel appearing on behalf of the Appellants states that the maximum Court fee of Rs.75,000/- has already been paid. We accordingly dispose of the Appeal in the aforesaid terms by setting aside the impugned order of the Learned Single Judge and substituting it by the directions issued above. There shall be no order as to costs. The Department to act on an authenticated of this order issued by the office of this Court.