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2021 DIGILAW 2611 (MAD)

R. Ispahani v. .

2021-09-29

V.PARTHIBAN

body2021
JUDGMENT : (Prayer: Original Side Rules of this Court, praying that a Succession Certificate may be granted in the name of the first petitioner with power to collect the securities and to receive the interest and dividends and negotiate and transfer the securities specified in the schedule.) 1. The above Original Petition has been filed under Section 372 of the Indian Succession Act for grant of Succession Certificate. 2. The Registry of this Court, finding that no sufficient Court Fee being paid as mandated in the Tamil Nadu Court Fees and Suits Valuation Act, 1955, in terms of the Schedule-I (Article 7), returned the Original Petition. 3. The learned counsel for the petitioner responded to the returns made by the Registry by stating that the Court Fee payable for grant of Succession Certificate is comparable to the one for grant of Probate or Letters of Administration, in terms of Article 6 of the Schedule-I and Sections 55 and 56 of the Act, 1955. 4. Originally, in terms of the relevant provisions, ad-valorem Court Fee was chargeable even for grant of Probate or Letters of Administration, but subsequently, the Court Fee Rationalisation Committee was constituted pursuant to the order of this Court in a batch of Writ Petitions and the said Committee recommended that maximum Court Fee of Rs.25,000/- be paid for Probate or Letters of Administration with or without the annexation of Will. The Committee found that fixation of ad-valorem Court Fee of 3% was irrational, as on the death of a person, no transfer is involved, as the legal heirs succeed to the Estate as per the Succession Law. This recommendation was accepted and Article 6 of Schedule-I of the Act, 1955, was accordingly amended and now, the maximum Court Fee payable on the application for grant of Probate or Letters of Administration is Rs.25,000/-. 5. According to the learned counsel, Article 11(k) of Schedule-II of the Act, 1955, applies to applications for Probate or Letters of Administration filed before the District Court. However, no amendment was carried out as per the recommendation of the Committee referred to above in respect of the application for Probate or Letters of Administration to be filed in the District Court. However, no amendment was carried out as per the recommendation of the Committee referred to above in respect of the application for Probate or Letters of Administration to be filed in the District Court. As per the said Article, if a Caveat is filed in an application for Probate or Letters of Administration, the application is registered as a suit and one-half of the scale of Fee prescribed under Article 1 of Schedule I (of the Act, 1955) on the market value of the Estate is to be paid as Court Fee. 6. The issue relating to the question whether an application filed for grant of Probate or Letters of Administration, is only an application or a suit, came up for consideration as early as in 1988 before a Division Bench of this Court and in the judgment reported in AIR 1989 Madras 111 = 1988 (2) LW 181 (DB) (Philo Peter & Arputhasamy Vs. Divyanathan & Mariapushpam), after adverting to various case laws and the submissions of the parties, the Division Bench held that in terms of Section 295 of the Indian Succession Act, any contest against grant of Probate or Letters of Administration, the application did not become a suit in the strict sense of the term and in that regard, no Court Fee is payable as suit proceedings under Article 11(k) of Schedule-II of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 7. Drawing parallel to the proceedings for grant of Probate or Letters of Administration, application for grant of Succession Certificate is also in the nature of application, and therefore, the principle laid down by the Division Bench needs to be applied and no ad-valorem Court Fee is payable under Article 11(k) of Schedule-II of the Act, 1955. 8. The substance of the claim of the petitioner is that the Succession Certificate cannot be treated different from an application for grant of Probate or Letters of Administration. Hence, the maximum Court Fee payable as fixed for grant of Probate or Letters of Administration at Rs.25,000/- in terms of Article 6 Schedule-I of the Act, 1955, alone is payable for grant of Succession Certificate as well. 9. Hence, the maximum Court Fee payable as fixed for grant of Probate or Letters of Administration at Rs.25,000/- in terms of Article 6 Schedule-I of the Act, 1955, alone is payable for grant of Succession Certificate as well. 9. The Registry, however, not satisfied with the reply of the petitioner, has posted the O.P. for maintainability on the ground that in terms of Article 7 Schedule-I of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, ad-valorem Court fee at 3% is payable and unless amendment is effected amending the Article, the Registry cannot accept the explanation given by the petitioner. 10. When the matter is taken up for hearing, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the petitioner cited the decision of the Division Bench of this Court reported in AIR 1989 Madras 111 (cited supra). Although the issue before the Division Bench of this Court was regarding the application filed before the District Court for grant of Probate and Letters of Administration, the principles laid down by the Division Bench could have to be applied for grant of Succession Certificate also. The learned Senior Counsel, in this regard, submitted that when the Court Fee Rationalisation Committee was constituted, and the recommendation made for the fixed Court Fee of Rs.25,000/- for grant of Probate and Letters of Administration, the Committee inadvertently overlooked Court fee payable in respect of grant of Succession Certificate. 11. According to the learned Senior Counsel, omission to fix the Court Fee for the Succession Certificate on par with the Probate proceedings, was accidental and it was not intentional. The learned Senior Counsel has also drawn reference of this Court to a Bill which was moved before the State Legislature recently for amending the relevant provisions towards fixation of fixed Court Fee for grant of Succession Certificate, but unfortunately, the Bill could not be carried through before conclusion of the Legislative Assembly Session. 12. In any case, the learned Senior Counsel submitted that, even recently, a learned Judge of this Court in C.R.P.No.144 of 2021, by order dated 30.07.2021 has followed the above said decision of the Division Bench of this Court and held that ad-valorem Court Fee is not payable for an application for grant of Probate or Letters of Administration under Article 11(k) of Schedule-II of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. The learned Senior Counsel requested this Court to follow the orders of the Division Bench and also the decision of the learned Judge in the C.R.P. aforementioned. The learned Senior Counsel also brought to the notice by pointing out that Writ Petitions in W.P.No.8153 of 2019 and W.P.No.297 of 2021, are pending before this Court seeking to declare Article 7 of Schedule-I of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, as unconstitutional. Those Writ Petitions are likely to be taken up for hearing any time. 13. The learned Senior Counsel finally submitted that, with a view to protect the revenue interest of the Registry, an undertaking affidavit has been filed by the petitioners undertaking to deposit the amount of Rs.5,61,939/- payable towards balance Court Fee after giving credit to Rs.25,000/- already paid, by means of Fixed Deposit in a nationalised Bank and deposit the Fixed Deposit Receipt before the Registrar General of this Court. The Fixed Deposit shall remain in deposit until the disposal of the Writ Petitions questioning Article 7 of Schedule I of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. The learned Senior Counsel, in the circumstances, submitted that, in case the above said Writ Petitions are allowed, there is no requirement of payment of ad-valorem Court Fee at all. On the other hand, if the Writ Petitions fail, it is open to the Registrar General of this Court to encash the deposit and appropriate the same towards the balance Court Fee payable in respect of the present O.P. He would therefore request this Court to direct the Office to number the O.P. 14. This Court considered the submissions of the learned Senior Counsel appearing for the petitioners and perused the decisions cited in the matter. 15. First of all, this Court, in principle, is in agreement with the submissions made by the learned Senior Counsel appearing for the petitioners. When the maximum Court Fee fixed at Rs.25,000/- is payable for grant of Probate or Letters of Administration, the same would have to be applied pari-materia to the case of grant of Succession Certificate also. By no stretch of legal standard, the grant of Succession Certificate can be called as a suit proceeding in the strict sense, as held by the Division Bench of this Court aforementioned decision. 16. By no stretch of legal standard, the grant of Succession Certificate can be called as a suit proceeding in the strict sense, as held by the Division Bench of this Court aforementioned decision. 16. However, the fact remains that, as on date, Article 7 of Schedule-I of the Act, 1955, has not been amended and therefore, the ad-valorem fees as payable under the said Article, cannot be held to be not applicable. When the statutory provisions prescribe payment of particular rate of Court Fee, the non-payment of Court Fees would dis-entitle any person to pursue the legal remedy before the Court. There cannot be any negotiation in regard to the compliance of the said statutory and fiscal requirements. 17. At the same time, despite the requirement of payment of advalorem Court Fee applicable for the grant of Probate or Letters of Administration before the District Court, yet, the Courts have construed that the application for grant of Probate or Letters of Administration is not a suit in the strict sense, even if the application is contested. It is useful to refer the succinct observations of the Division Bench of this Court on the subject matter (in AIR 1989 Madras 111 - cited supra) in paragraphs 13 to 15 and 17, which are extracted hereunder: "13. We have bestowed our anxious consideration to the meaning of the words “as nearly as may be” and we are unable to persuade ourselves to come to a conclusion that the proceeding under S. 295 can be termed to be a regular suit. The main reason is that if the Legislature had intended that such proceedings should be treated as suits and not as applications, there is nothing to prevent the Legislature from making a simple and clear provision to the effect that such proceedings might be converted into a suit and treated as such. This inference is strengthened by the fact that in S. 47 of the Code of Civil Procedure, it is laid down that it is open to a Court to treat a proceeding under that section as a suit and order payment of additional court fee. The fact that such a specific provision was not made in S. 295 of the Indian Succession Act demonstrates the intention of the Legislature in clear terms. 14. The fact that such a specific provision was not made in S. 295 of the Indian Succession Act demonstrates the intention of the Legislature in clear terms. 14. In this context, we have to consider as to the proper court fee payable in a proceeding under S. 295 of the Indian Succession Act. We have already seen that the petition filed under the said Act does not become a suit on a contention being raised by the opposite party. The proceedings are treated as a regular suit in form only and not in substance. Court fee is now demanded on the basis of the provision contained in Article 11, sub-clause (k) of Schedule II of the Tamil Nadu Court-fees and Suits Valuation Act 1955, which provides as follows:— Particulars Proper fee (k) (i) Application for probate or Letters of Administration to have effect throughout India. Twenty-five rupees. (ii) Application for probate or Letters of Administration not falling under clause (i)… Twenty-five paise. 1) If the value of the estate does not exceed Rs. 1,000/- Seventy-five paise. 2) If the value exceeds Rs. 1,000/- Five rupees be levied Provided that if a caveat is entered and the application is registered as a suit, one half the scale of fee prescribed in Article-1 of Sch. I on the market value of the Estate less the fee already paid on the application shall. It is seen that sub-Cl.(2) of Cl.(ii) provides for payment of one-half the scale of fee prescribed in Art. 1 of Sch. I on the market value of the estate when a caveat is entered and the application is registered as a suit. Therefore, before a party is called upon to pay court fee under this provision, two conditions must be satisfied, namely, that a caveat must have been entered and that the application must have been registered as a suit. Unless and until these conditions are satisfied, there is no warrant for demanding court fee as if it is a regular suit. We have already seen that when the proceeding becomes contentious, it does not become a suit as such as contemplated under the Civil Procedure Code and that it is considered to be a suit only in form and not in substance. Therefore, as long as there is no suit in the eye of law, this provision for payment of court fee cannot be invoked. Therefore, as long as there is no suit in the eye of law, this provision for payment of court fee cannot be invoked. We have also noticed that there is no provision anywhere in the Indian Succession Act or in the Court Fees Act to register a petition under the Indian Succession Act as a suit. When, there is no such specific provision in any of these Acts, it is not open to the State to demand court fee as if it is a regular suit, on such a petition at any stage of the proceedings. 15. There is one other reason for holding that the said provision under the Court Fees Act cannot be made applicable to a case of this nature. It is seen that Article 11(k) of Schedule II provides that one-half the scale of fee prescribed in Article 1 of Sch.I on the market value of the estate is payable in the proceedings under the Indian Succession Act, as and when a caveat is entered and the application is registered as a suit. Article 1 in Schedule I provides for payment of court fee on the value of the subject-matter of the suit. This provision of law cannot be made applicable since the subject matter in dispute in a proceeding relating to probate or letters of administration is the right of the grantee to represent the estate of the deceased and as such it is incapable of valuation. The said provisions contained in the Court Fees Act contemplate payment of court fee in cases where the subject-matter is capable of valuation and not otherwise. It cannot be disputed that the value of the properties comprised in such applications cannot be taken to be the value for purposes of payment of court-fee in such applications. The properties as such are not the subject matter in dispute here and on the other hand the subject matter in dispute is the right to represent the estate of the deceased and not the title to the said estate. It has to be noted that before an order actually entitling the petitioner to the grant of probate or letters of administration is passed, he is required to pay court fee on the probate or Letters of Administration on the value of the estate under Sch.I of the Court Fees Act. It has to be noted that before an order actually entitling the petitioner to the grant of probate or letters of administration is passed, he is required to pay court fee on the probate or Letters of Administration on the value of the estate under Sch.I of the Court Fees Act. Apart from this payment of Court Fee, when the petitioner wants to recover the property comprised within the estate of the deceased, he is again required to pay Ad Valorem court-fee on the plaint in the suit filed for recovery of the property. It is, therefore, clearly seen that it would result in payment of court fee more than once. It is a well established principle of law that such fiscal statutes should be construed strictly and whenever there is a doubt in the matter, an interpretation favourable to the litigants should be preferred. These principles have been clearly laid down in the above said decision of the Allahabad High Court following the decisions reported in A.V.Fernandez Vs. State of Kerala ( AIR 1957 SC 657 ) and Central India Spinning and Weaving and Manufacturing Co. Ltd. Vs. Municipal Committee, Wardha ( AIR 1958 SC 341 ). We, therefore, hold that a proceeding referred to in S.295 of the Indian Succession Act does not become a suit in the strict sense of the term even after it becomes contentious and as such court fee is not payable as a suit under Art.11(k) of Schedule II to the Tamil Nadu Court Fees Act." 17. In the result, we answer the reference in the following terms: — When the proceeding initiated on a petition before a District Judge for grant of probate or letters of administration becomes contentious and is required to be tried in the form of a regular suit according to the provisions of the Code of Civil Procedure, it cannot be considered as a suit in the strict sense of the term and as such Ad Valorem court fee is not payable on such application under Art. 11(k) (ii) sub clause (2) of Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Since this is the only question to be decided in these two revision petitions, it is unnecessary to send them back to be disposed of by a learned Single Judge of this Court on merits. Since this is the only question to be decided in these two revision petitions, it is unnecessary to send them back to be disposed of by a learned Single Judge of this Court on merits. Therefore, these Revision Petitions are allowed and the orders of the lower Court are set aside. No costs." 18. The ruling of the Division Bench as well as the learned Judge, can be taken to be strong persuasive value, as rightly contended by the learned Senior Counsel that the application for grant of Succession Certificate stands on the same footing as that of grant of Probate or Letters of Administration. 19. However, the fact of the matter is that when recommendation was made by the Fee Rationalisation Committee, the recommendation did not include application for grant of Succession Certificate, presumably, due to inadvertence. In fact, according to the learned Senior Counsel, the Bill was mooted in the Legislature for amending the relevant provisions to bring it in line with the Court Fee payable on par with that of the grant of Probate or Letters of Administration, but unfortunately the same could not be carried through. 20. Be that as it may. As far as the present case on hand is concerned, on behalf of the petitioners, an undertaking affidavit dated 13.09.2021 has been filed, undertaking to deposit ad-valorem Court Fee payable in the present O.P. and the Fixed Deposit receipt would be placed in the custody of the Registrar General of this Court. In that view of the matter, the revenue interest of the Registry of this Court is secured towards realisation of the advalorem Court Fee payable in the said O.P., if need arises with reference to the outcome of the disposal of the pending Writ Petitions challenging the levy of ad-valorem Court fee for the grant of Succession Certificate. In fact, Section 379 of the Indian Succession Act, 1925, contemplates only deposit of Court fee payable in respect of the Certificate. 21. In such view of the matter, this Court has no hesitation in directing the Registry to number the Original Petition by accepting the fixed Court Fee of Rs.25,000/- for the present. 22. In fact, Section 379 of the Indian Succession Act, 1925, contemplates only deposit of Court fee payable in respect of the Certificate. 21. In such view of the matter, this Court has no hesitation in directing the Registry to number the Original Petition by accepting the fixed Court Fee of Rs.25,000/- for the present. 22. As far as the larger issue is concerned as to whether the principle laid down by the Division Bench of this Court, followed by the learned Judge in C.R.P.No.144 of 2021 is applicable or not, this Court would have no quarrel over the proposition laid down therein in respect of grant of Probate or Letters of Administration. However, the legal obstacle herein is that Article 7 Schedule-I of the Act, 1955 prescribes ad-valorem Court Fee for grant of Succession Certificate. The ruling of the Court is in respect of grant of Probate or Letters of Administration by the District Courts, wherein the Courts have interpreted Section 295 of the Indian Succession Act, 1925 and held that even in matters of contest, the application would not become a suit in the strict sense and that ad-valorem Court Fee is not payable. The interpretation of the Courts is on the basis of different provisions relating to the Act, 1955, which cannot be imported into the present consideration, as Article 7 Schedule-I of the Act, 1955, is staring at the parties. Unless the provision is amended, the benefit of fixed Court Fee claimed by the party cannot be granted, as on date. 23. The fact of the matter is that challenge as to the Constitutionality of the provisions, is pending before this Court in the aforementioned two Writ Petitions. It is always within the jurisdiction of the Constitutional Courts to examine any statutory provision on the touchstone of its Constitutionality. The relevant provision is either amended by the Government itself on consideration of the fact that the application for grant of Succession Certificate ought to be placed on same legal pedestal for grant of Probate or Letters of Administration, or this Court which is hearing the challenge, decides the vires of the provisions and declare its validity or otherwise. But on circumspection, till that time, this Court on the Original Side, cannot take a decision in derogation of the specific and mandatory statutory requirement as provided under Article 7 Schedule I of the Act, 1955. 24. But on circumspection, till that time, this Court on the Original Side, cannot take a decision in derogation of the specific and mandatory statutory requirement as provided under Article 7 Schedule I of the Act, 1955. 24. In any case, with a view to overcome the initial hurdle faced by the petitioners, this Court, in the interest of justice, directs the Registry to number the present O.P. after accepting the fixed Court Fee of Rs.25,000/- payable by the petitioners and on receipt of the Fixed Deposit receipt in terms of their undertaking as conveyed in their affidavit, dated 13.09.2021 and list the O.P. for hearing in the usual course. 25. The Registry is also directed to initiate steps and expedite the hearing of the above said Writ Petitions where challenge is to the Constitutionality of the relevant provisions mandating payment of ad- valorem Court Fee for grant of Succession Certificate. The early hearing of the above two Writ Petitions would lead to certainty in the matter of payment of Court Fee for grant of Succession Certificate, as the Registry is likely to be confronted with many such claims from the potential litigants seeking issuance of Succession Certificate. 26. Be that as it may. The petitioners herein are directed to deposit a sum of Rs.5,61,939/- (Rupees five lakhs sixty one thousand nine hundred and thirty nine only) being the balance ad-valorem Court Fee payable towards the present O.P. in any interest bearing Fixed Deposit Scheme in any nationalised Bank and the Fixed Deposit Receipt be handed over to the custody of the Registrar General of this Court. The Fixed Deposit shall remain in deposit until the disposal of W.P.Nos.8153 of 2019 and W.P.No.297 of 2021 questioning Article 7 Schedule I of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, or the decision of the Government for amending the said Article in favour or otherwise, whichever is earlier. The petitioners are directed to comply with their undertaking (Deposit) within one week from the date of receipt of a copy of this order, to enable the Registry to process the O.P. 27. This Court will take appropriate call in the matter when the final Certificate is to be issued after completion of the legal formalities in this Original Petition.