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Ahmed Ebrahim Vorajee Vs. the Government of the Province of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 321 of 1939
Judge
Reported inAIR1943Bom50; (1942)44BOMLR912
AppellantAhmed Ebrahim Vorajee
RespondentThe Government of the Province of Bombay
DispositionAppeal dismissed
Excerpt:
.....revocation whether appealable--civil procedure code (act v of 1908). section 151--court-fee stamp duty paid on infructuous succession certificate by mistake--inherent power of court to order refund of duty.;an order of the court, on an application to revoke a succession certificate, which amounts to a refusal to revoke it, does not fall under section 384 of the indian succession act, 1925, and is not appealable.;manchharam v. kalidas (1894) i.l.r. 19 bom. 821 and sharif-un-nissa bibi v. masum ali (1920) i.l.r. 42 ah. 347, distinguished.;a succession certificate in respect of certain shares and securities was obtained by the applicant under section 380 of the indian succession act, 1925, after payment of the requisite court-fee stamp duty. some of the shares were of a company which had..........chief controlling revenue authority, i.e. the commissioner, northern division, for refund of the duty paid by him in respect of the said shares, but his application was refused on the ground that he had no remedy under the court-fees act, that he appealed to the bombay revenue tribunal against that order, but the appeal was also dismissed, and he, therefore, prayed that the certificate should be cancelled as to the item of the aforesaid 9,600 shares and the court-fee stamp duty of rs. 1,488-13-0 paid thereon should be ordered to be refunded to him. the learned judge rejected that application on the ground that the stamp duty was knowingly paid by the applicant and was not in excess looking to the amount for which the certificate was asked for. he held that section 19-a of the.....
Judgment:

1. This is an appeal by the applicant who prayed for cancellation of a succession certificate issued to him by the First Class Subordinate Judge at Surat in respect of the property of one deceased Ebrahim Ahmed Vorajee in so far as the certificate related, among other properties, to 9,600 shares of the Consolidated Tin Mines of Burma, Limited, valued at Rs. 43,200 and for an order of refund of the court-fee stamp duty of Rs. 1,488-13-0 paid with respect to the said shares.

2. The applicant's case in substance was that his father Ebrahim Ahmed Vorajee died on October 26, 1933, leaving various shares and securities. Among them were the aforesaid shares of the Consolidated Tin Mines of Burma, Limited, the head office of which was in London. A certificate was granted to him in respect to all the properties and on the strength of that certificate he applied to the London head office of the Tin Mines Company for transfer of the shares to his name. He was, however, informed that the shares could not be transferred on the strength of the succession certificate which did not operate outside British India, but that letters of administration of a Court exercising jurisdiction in the United Kingdom should be obtained and forwarded to the Company. He thereupon made an application to the proper Court in London and obtained letters of administration for the said shares, on the strength of which he got them transferred to his name. He had paid the full British court-fee stamp for the letters of administration. Thereafter, he applied to the Surat Court that the aforesaid shares were included in his application for succession certificate through misunderstanding on his part, that he applied to the Chief Controlling Revenue Authority, i.e. the Commissioner, Northern Division, for refund of the duty paid by him in respect of the said shares, but his application was refused on the ground that he had no remedy under the Court-fees Act, that he appealed to the Bombay Revenue Tribunal against that order, but the appeal was also dismissed, and he, therefore, prayed that the certificate should be cancelled as to the item of the aforesaid 9,600 shares and the court-fee stamp duty of Rs. 1,488-13-0 paid thereon should be ordered to be refunded to him. The learned Judge rejected that application on the ground that the stamp duty was knowingly paid by the applicant and was not in excess looking to the amount for which the certificate was asked for. He held that Section 19-A of the Court-fees Act applied only to refund in respect of applications for probate and letters of administration and not for a succession certificate. He was further of the opinion that the revenue authorities having turned down the appellant's application, it was not open to the civil Court to interfere, especially as this was not a case of simple inadvertence or mistake. The appellant relied upon some decisions which held that the Court had the power to direct refund under Section 151, Civil Procedure Code, but the learned Judge distinguished them on the ground that in the present case there was want of good faith and mistaken view of law.

3. This appeal is preferred against that order, and the learned Assistant Government Pleader has raised a preliminary objection that no appeal lies against the order. He relies on Section 384 of the Indian Succession Act under which an appeal lies from an order granting, refusing or revoking a certificate under Part X of the Indian Succession Act. The application to the lower Court was to cancel or revoke a certificate already granted and the order thereon amounted to refusal to revoke or cancel it, and such an order of refusal to revoke did not fall under that section.

4. On behalf of the appellant reliance is placed on two decisions, Manchharam v. Kalidas I.L.R. (1894) 19 Bom. 821 and Sharif-un-nissa Bibi v. Masum Ali (1920) I.L.R. 42 All. 347. In the former case there were two applications for revoking the certificates granted to two different persons with respect to the same estate, and this Court held that one of the parties had clearly a right to appeal against the order revoking his certificate and the order refusing to revoke his rival's certificate was in fact the same order on a different application. It was held on that ground that the appeal was really preferred against the order revoking a certificate. In the Allahabad case also the decision was based on a similar ground. In the present case, however, the certificate was granted to the appellant alone and his application is to revoke or cancel that certificate. The order thereon amounts to a refusal to revoke and does not fall under Section 384. It must, therefore, be held that the appeal is not competent.

5. Mr. Thakor for the appellant, however, contends that he has also filed a revisional application and that this Court should set aside the order of the lower Court in revision. As observed in the case of Manchharam v. Kalidas I.L.R. (1894) 19 Bom. 821 it would be open to this Court to interfere if a proper case for revision is made out.

6. Treating the matter now as a revisional application, the position is that the petitioner included the shares in his application under the belief that the certificate would enable him to have them transferred to his name so that he can realise the dividends thereon. Section 380 of the Indian Succession Act says that a certificate under Part X shall have effect throughout the whole of British India. That means that it is ineffective outside British India and the company's head office in England is not bound to act upon it for the transfer of shares. The learned Judge below refused to exercise his jurisdiction under Section 151 of the Civil Procedure Code on the ground that there was want of bona fides on the part of the applicant and that he knowingly paid the stamp duty on the said shares. It seems to us that he paid the duty under the belief, although erroneous, that it would enable him to get the shares transferred to his name. But it is difficult to say that there was want of good faith on the applicant's part. It is true that he ought to have known the law but ignorance of law need not prevent the Court in exercising its inherent power if it is clear that the certificate was infructuous for the purpose for which it was obtained.

7. The Allahabad High Court has held in In the matter of Chaube Munna Lal (1930) I.L.R. 52 All. 546 that under Section 151 of the Civil Procedure Code the subordinate Courts have power to issue certificates directing the refund of court-fees paid in excess by inadvertence. The Madras High Court has also held in Thammayya Naidu v. Venkataramanamma (1932) I.L.R. 55 Mad. 641 that even in cases not covered by Sections 13, 14 and 15 of the Court-fees Act, the High Court can, under Section 151 of the Code of Civil Procedure, order refund of court-fee paid in excess. We are in agreement with those decisions. The petitioner has paid the proper duty in England and obtained letters of administration in respect of these shares. We see no reason, therefore, why the petitioner should not be entitled to a refund of the amount which he paid by mistake or inadvertence. This is not a case where the certificate for the shares became inoperative by any supervening circumstance after its grant. It was inoperative from the time it was granted. Strictly speaking it may not be necessary, therefore, to revoke the succession certificate with respect to the said shares, and the appellant would have been entitled to a refund of the Court-fee duty even though he had not applied for its revocation.

8. It is contended by the learned Assistant Government Pleader that there cannot be any partial revocation of the certificate under Section 383 of the Indian Succession Act. A certificate could be revoked under that section when it has become useless or inoperative through circumstances, and in the present case the certificate was inoperative from the beginning and useless for the purpose for which it was obtained. It was observed in Sharif-un-nissa Bibi v. Masum Ali (1920) I.L.R. 42 All. 347 that the Court would have the power to revoke a succession certificate in part, and in our opinion, it would be open to the Court to hold that the certificate was inoperative with respect to the said shares from the beginning. In any case the main relief sought by the applicant is that of refund, and that relief he is entitled to under Section 151 of the Civil Procedure Code irrespective of his prayer for revocation.

9. We, therefore, think that the learned Judge was wrong in not exercising the jurisdiction vested in him under Section 151 of the Civil Procedure Code and refusing to direct a refund of the court-fees paid.

10. We make the rule absolute, set aside the order passed by the learned Judge and direct that a certificate should be issued to the petitioner for refund of the court-fee stamp duty of Rs. 1,488-13-0. Each party will bear its own costs of this revision application and the proceedings in the lower Court.

11. As the appeal is incompetent, it is dismissed with costs.

12. The certificate for refund to be issued by this Court.


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