IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Present :
The Hon’ble Justice Soumen Sen
C.O.2717 of 2012
The Estate of Kalpana Das Neogi
Represented by Ashoke Kumar Das
Vs.
Dipali Das Neogi & Ors.
For the Petitioner : Mr. Siddhartha Chowdhury,
Mr. Sanjib Kr. Ghosh
For the opposite parties : Mr. Abhinaba Banerjee
Heard on : 24.08.2012, 03.10.2012
Judgment on : 17th December, 2012
Soumen Sen, J.:-The subject-matter of challenge in this revisional
application is a direction passed by the Civil Judge, Senior Division in directing
the petitioners to pay court-fees over and above Rs.50,000/- for granting the
certificate for Letters of Administration on the ground that the value of the assets
which is to be administered is of Rs.20 lakhs. The petitioners filed an application
for granting of Letters of Administration in favour of the applicants over or in
respect of assets and articles lying with S.B.I. Balurghat Branch vide Locker
No.76 worth Rs.20,00,000/- presently deposited in the name of the deceased in
the said Branch of the State Bank of India. The said application was filed upon
payment of court-fees of Rs.50,000/-. The petitioners applied for such grant on
13th August, 2010 and the said grant was initially treated as a succession case in
lieu of Letters of Administration.
It is contended that in terms of the provisions of the Succession Act as well
as Court-fees Act, the maximum court-fees payable is Rs.50,000/- as if the said
grant is treated as a case for granting a succession certificate. The learned Judge
overruled the said contention on the ground that Sheristadar of the trial Court
has calculated/assessed the stamp duty at Rs.97,000/- for the value of the
articles of Rs.20,00,000/- in terms of the provisions of the Court-fees Act.
Originally, when the petition was filed, the petitioners/applicants prayed for
issuing succession certificate. In the Misc. Case, there was a prayer was made
for issuance of Letters of Administration under the Indian Succession Act along
with a prayer that the Court may be pleased to admit the said petition and grant
Letters of Administration in favour of the petitioners. While admitting the said
succession case, the concerned office of the trial Court made an endorsement
that it is for issuance of succession certificate. The learned Judge on a reading of
the said application held that the applicants, in fact, have prayed for issuance of
Letters of Administration and on consideration of the provisions of the West
Bengal Court-fees Act, 1970 as amended by the West Bengal Court-fees
(Amendment) Act, 2002, the petitioners are bound to deposit ad valorem courtfees
as per the provisions of Schedule I (10) of the Court-fees Act. The learned
Judge also observed that this Hon’ble Court in a decision reported in AIR 2005
Cal 231 (Mihir Saha & Anr. Vs. Tanmoy Saha & Ors.) held that ad valorem
court-fees is payable on the basis of valuation made in terms of Serial No.10 of
the Schedule I which is set out hereinbelow:-
“I (10). Probate of a Will or letters of administration with or without Will
annexed.
(a) When the amount or the value of the property in
respect of which the grant of probate or letters of
administration is made, exceeds ten thousand
rupees, on such amount or value up to twenty-five
thousand rupees; Three per centum and
(b) When such amount or value exceeds twenty-five
thousand rupees, on the portion of such amount or
value which is in excess of twenty-five thousand
rupees, upto one lakh of rupees; Three and a half
per centum and
(c) when such amount or value exceeds one lakh of
rupees, on the portion of such amount or value
which is in excess of one lakh of rupees, up to five
lakh of rupees; Four and half per centum and
when such amount or value exceeds five
lakhs of rupees, on the portion of such amount or
value which is in excess of five lakhs of rupees:
Five and a half per centum.
Provided that when, after the grant of
certificate under the Indian Succession Act, 1925
(39 of 1925), in respect of any property included in
an estate, a grant of probate or letters of
administration is made in respect of the same
estate, the fee payable in respect of the latter grant
shall be reduced by the amount of the fee paid in
respect of the former grant.”
In Mihir Shah (supra) the question that had fallen for determination was
whether the enhanced rate prescribed by virtue of the West Bengal Court-fees
Amendment Act, 2002 for payment of court-fees as provided in serial No.10 of
Schedule I shall apply to the probate proceedings instituted prior to coming into
force of the said amendment if the Court grants probate after coming into
operation of the amended Act.
In deciding the said application, the learned Judge held that an application
for grant of probate is required to be filed initially before the District Delegate
with a fixed court-fees as provided in serial No.9 of the Schedule II. As soon as
the said proceedings become contentious then the applicant would be required to
take back the said application for the purpose of re-filing it before the District
Court and affix court-fees in accordance with the direction contained in the
proviso to the said serial No.9 of the Schedule II. Finally, if the Court grants
probate in favour of the executor, the executor would be under an obligation to
pay further court-fees on the basis of entire valuation of the property covered by
the Will as provided in serial No.10 of Schedule I. If the applicant is otherwise
unsuccessful, in such a situation, the executor would not be required to pay any
further court-fees apart from those paid in terms of serial No.9 of Schedule II.
Accordingly, the liability to pay the final court-fees in terms of serial No.10 of
Schedule I on the basis of valuation of the subject-matter covered under the Will
accrues only when the Court decides to grant probate. It was, thus, held that a
successful executor would be required to pay such court-fees at the rate
prevailing on the date of grant of probate and not earlier.
Before the West Bengal Court-fees Amendment Act, 2002 it was held in
Indumati Goenka Vs. The State of West Bengal & Ors. reported in 1994(1)
CLJ 345 that where a proceeding for grant of probate and letters of
administration becomes a contentious matter, it is registered as a suit. So where
in respect of all other suits an upper limit of Court-fees is fixed, there is no
logical justification for singling out this proceeding for an ad valorem impost
without the benefit of any upper limit. As such there should be a declaration
that the part of Section 12 read with Item 10 of Schedule I of the West Bengal
Court-fees Act, 1970 which provides levy of Court-fees in excess of Rs.10,000/-
in any probate case is ultra vires Article 14 of the Constitution and is invalid. It
was, thus, held that the writ petitioner is entitled to refund of the amount of
Court-fees paid in excess of the said amount.
The levy of ad valorem Court-fees imposed without any upper limit in
respect of grant of Probate and Letters of Administration as provided by the West
Bengal Court-fees Act, 1970 is ultra vires the provisions of Article 14 of the
Constitution of India. (Subrata Das Vs. The Collector of 24 Parganas (South)
& Ors., 1995 (2) CHN 313)
When an application is made for probate or Letters of Administration to
any Court other than High Court, it is a duty of the Court to give a notice of the
said application to the Collector within whose local limit to jurisdiction of the
property of the deceased or in part thereof is situated and the Collector is
required to inspect and file a report with regard to the value of the said property.
If it appears to the Collector that the petitioner has underestimated the value of
the property of the deceased, the Collector may give notice to the petitioner to
appear and after holding an inquiry, if it appears to the Collector that the
property has been under valued, the Collector may require the petitioner to
amend the valuation. In the instant case, the petitioners prayed for grant of
Letters of Administration in respect of the assets and articles lying under the SBI,
Balurghat Branch Locker which had been assessed at Rs.20,00,000/- on the
basis of a report filed by the Commissioner appointed in the said proceeding.
Such valuation arrived at by the Inventory Commissioner has been accepted by
the parties. The trial Judge on recording a satisfaction with regard to the said
valuation and being prima facie satisfied that the petitioners/applicants are
legally entitled to obtain a grant of Letters of Administration allowed the said
application and such Letters of Administration was issued in favour of the
applicants on resisting of proper court-fees. The Sheristadar was requested to
assess the proper court-fees. The Sheristadar calculated and assessed the stamp
duty at Rs.97,000/- for the value of the articles of Rs.20,00,000/-. The basis of
the said calculation was accepted by the learned trial Judge after rejecting the
objection raised by the applicants/petitioners that the highest court-fees payable
under Letters of Administration is only Rs.50,000/- and, accordingly, the
petitioner cannot be directed to pay any sum over and above Rs.50,000/-.
The court-fees payable of a petition for Probate and Letters of
Administration is according to the scale of fees prescribed in Schedule I Article
10 as required under Section 32 of the Court-fees Act, 1970. Section 32 of the
West Bengal Court-fees Act, 1970 (as amended) is reproduced hereinbelow:-
“S. 32. Payment of court-fees in respect of probates and letters of
administration. – (1) No order entitling the petitioner to the grant of probate
or letters of administration shall be made upon an application for such grant
until the petitioner has filed in the Court a valuation of the property in the
form set forth in Schedule III, and the Court is satisfied that the fee
mentioned in No.10 of Schedule I has been paid on such valuation.
(2) The grant of probate or letters of administration shall not delayed
by reason of any motion made by Collector under sub-section (4) of Section
31.”
Under Section 32 of the West Bengal Court-fees Act, 1970, the grant of
Probate or Letters of Administration will not be granted until the petitioner has
filed in Court a valuation of the property in the form set forth in Schedule III and
the Court is satisfied that the fee mentioned in No.10 of Schedule I has been paid
on such valuation. The original valuation was amended on the basis of the
report of the inventory commissioner and the Letters of Administration is now
granted over the assets and properties of the deceased worth Rs.20,00,000/-. It
has to be calculated on the basis of Schedule I Article 10 of the West Bengal
Court-fees Act, 1970 and not on the basis of ad valorem fees leviable on the
institution of suits. The applicants would be required to pay such court-fees as
may be determined on the basis of Schedule I Article 10 of the West Bengal
Court-fees Act, 1970. The learned trial Judge has proceeded on the basis that
the plaintiff would be required to deposit court-fees on the basis of the report
filed by the Sheristadar, disregarding the fact that the petitioners have already
deposited the maximum court-fees of Rs.50,000/-. If it had been a contentious
cause, the Court could not have collected and, in fact, cannot collect more than
the maximum court-fees under Court-fees Act, 1970. In view of the fact that
maximum court-fees of Rs.50,000/- have been deposited, the Court could not
have directed the petitioner to deposit further court-fees over and above
Rs.50,000/-.
In view thereof, the revisional application succeeds.
The impugned order is set aside.
Urgent xerox certified copy of this judgment, if applied for, be given to the
parties on usual undertaking.
(Soumen Sen, J.)
