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2018 DIGILAW 1513 (GAU)

Rama Mukherjee v. Mitra Mukherjee

2018-10-05

KALYAN RAI SURANA

body2018
JUDGMENT : 1. Heard Mr. A. Dasgupta, the learned senior counsel assisted by Mr. G. Goswami, the learned counsel for the petitioner. Also heard Mr. D. Baruah, the learned counsel appearing for the respondents. 2. The challenge in this application under section 227 of the Constitution of India is the order dated 8.12.2017 passed by the learned District Judge, Sonitpur, Tezpur in T.S. (P) Case No. 43/2010 [formerly Misc. (P) Case No. 36/2010]. By virtue of the said order which was passed on petition No. 2064/2017 dated 6.12.2017, the prayer made for issuance of notice of the Collector of the District under the provisions of section 19H of the Court Fees Act, 1870 was kept pending for consideration at the time of final hearing. 3. The respondent herein is the petitioner in an application filed under section 276 of the Indian Succession Act, 1925 for grant of probate of a perported will of late Dr. Soumendra Mohan Mukherjee, resident of Tezpur, District Sonitpur, Assam. It appears from the copy of the probate petition that the petitioner herein is the sole respondent in the said probate application. From the order impugned herein, it appears that the said probate proceeding was last posted at 8.2.2018 for cross-examination of plaintiff witnesses. At this stage, petition No. 2064/2016 dated 6.12.2017 had been filed by the petitioner. 4. The learned senior counsel for the petitioner has referred to the provisions of section 276(1)(d) of the Succession Act, 1925 to project that it was mandatory under the said provision that every probate petition must contain a statement about the amount of assets which are likely to come to the petitioner's hand. It is submitted that the said provision is required to be read with the provisions of section 19H of the Court Fees Act, 1870 requiring under sub-section (1) thereof that when an application of probate or letters of administration is filed/made to any court, the court shall cause notice of the application to be given to the Collector. It is submitted that the provisions of section 19H of the Court Fees Act envisages that the State should get the appropriate Court Fee on the true value of the property which may come in the hand of the petitioner. 5. It is submitted that the provisions of sections 283(1)(c) and 283(2) of the Succession Act, 1925 has also not been complied with. 5. It is submitted that the provisions of sections 283(1)(c) and 283(2) of the Succession Act, 1925 has also not been complied with. It is submitted that from the copy of the order-sheet available with him, there is no order by the learned District Judge for citation being issued for fixing up in some conspicuous part of the Court House and in the office of the Collector of the District in the manner as deemed fit. 6. Hence, it is submitted that as the notices under section 19H of the Court Fees Act, 1870 and the provisions of section 283(1)(c) and section 283(2) of the Succession Act, 1925 has not been complied with, the present application has been filed to challenge the order dated 8.12.2017, requiring the learned District Judge to issue notice to the Collector under section 19H of the Court Fees Act. In support of his submissions that the notices to the collector was very much essential, the learned senior counsel for the petitioner has referred to case of Mundrika Prasad Singh v. Mst. Kachnar Kuer, AIR 1955 Pat. 362 . 7. Per contra, the learned counsel for the respondent has submitted that the very purpose of filing the said petition No. 2064/2017 dated 6.12.2017 was to harass the respondent by delaying the adjudication of the probate suit on one ground or the other and that this point has been raked up after 8 years of the institution of this case. It is also submitted that there is no reason for the petitioner to be aggrieved by the impugned order because by the said order, petition No. 2064/2017 was not dismissed but it was kept pending for consideration at the time of final hearing. 8. The learned counsel for the respondent had also made an attempt to refer to the various events had taken place before the learned trial court in course of the trial which had caused delay in the proceeding. However, the delaying tactics of the petitioner is not a subject-matter of the present challenge, as such, this court had refused to hear the respondents on materials which are outside the scope of the present challenge. 9. However, the delaying tactics of the petitioner is not a subject-matter of the present challenge, as such, this court had refused to hear the respondents on materials which are outside the scope of the present challenge. 9. Upon consideration of the materials available before this court, this court would like to refer to the provisions of section 19-1 of the Court Fees Act, 1870 which, amongst others, provide that no order entitling the petitioner to grant of probate and letters of administration shall be made upon on application for such grant until the petitioner has filed in the court the valuation of the property in the form set forth in the Third Schedule and the court is satisfied that court fees as mentioned in serial No. 11 of the First Schedule has been paid on such valuation. However, sub-section (2) of section 19-1 provides that the grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, sub-section (4). In the case of Mundrika Prasad Singh (supra) cited by the learned counsel for the petitioner, it is seen that the learned trial court had demanded court fees payable in the application after fixing the valuation before the final hearing of the application and the hon'ble Patna High Court had found no error in such direction. 10. In the case of Pritish Kumar Mitra v. Prosanto Kumar Mitra, AIR 1970 Cal. 236 , the hon'ble Calcutta High Court had considered the said provisions of section 19-1 of the Court Fees Act, 1870 and had held that the valuation fixed under section 19H of the Court Fees Act will be payable at this stage of passing order entitling the grant of probate or letters of administration and not in any previous stage, and till such stage is reached, the further proceeding for the hearing could be continued. 11. 11. Therefore, the only interpretation that could be given in respect of the provisions of sections 19H and 19-1 of the Court Fees Act, 1870 is that while the proceedings of the probate case may continue, there is a bar under sections 19-1(1) of the Court Fees Act that no order entitling the petitioner to grant of probate and shall made until the court fees has paid on the proper valuation of the property on which the court is satisfied upon notice issued under section 19H of the Court Fees Act to the Collector. 12. In view of discussions above, while this court is not inclined to interfere with the impugned order passed by the learned trial court. However, in terms of the mandate of section 19-1(1) of the Court Fees Act, 1870 the learned District Judge, Sonitpur, Tezpur shall consider the prayer made in Petition No. 2064/2017 dated 6.12.2017 before passing of final order for grant of probate. Till then there shall be no bar for the progress of trial. 13. The second part of the challenge is the non-issuance of mandatory citation in the notice board of the court and the Collector, etc., in terms of sections 283(1)(c) and 283(2) of the Succession Act, 1925. In this regard, this court is of the opinion that it is the mandatory requirement for issuing citations on the notice board of the Court House and in the office of the Collector of the district concerned, calling upon all persons claiming proceedings for grant of probate or letters of administration and it is further provided under the said provisions that such citations should be fixed up in some conspicuous part of the Court House and also in the office of the Collector. Accordingly, it is provided that the learned District Judge, Sonitpur, Tezpur shall now direct that a citation (also referred to as ‘General Notice’ in common parlance) be issued for being affixed in a conspicuous part of the Court House and in the office of the Collector of the District and if by the next returnable date, no objection are forthcoming, then to proceed from the present stage. However, if any objections are made, the learned District Judge shall proceed in the manner prescribed under section 284 of the Succession Act by deciding the caveatable interest before permitting such objector to contest the suit and in this regard this court would like to refer to the case of Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300 , where it has been held that a person cannot also be impleaded as a party even on an apprehension that those who have a caveatable interest and to whom citations have been made would not take any interest in the litigation, further holding that even a co-ownership of the properties in testator's estate does not amount to a caveatable interest. 14. Therefore, on both the counts of challenge, this application stands partly allowed. Both sides, who are represented by their learned counsel, shall appear before the court of the learned District Judge, Sonitpur, Tezpur on the date fixed and bY producing a certified copy of the order of this court, the parties shall seek further instructions from the said learned court. On the said date, the respondent herein shall file copies of the ‘General Notice’ for enabling the learned court below’ to issue citation for fixing the same in conspicuous part of the Court House as well as in the Office of the Collector, Sonitpur, Tezpur. 15. The parties are left to bear their own cost. 16. It is needless to say that the learned District Judge, Sonitpur, Tezpur shall expedite the hearing of this old pending case of the year 2010.