1. Owing to the position taken up by Banks and Limited liability Companies difficulties were experienced in cases in which joint Hindu families had invested part of their joint funds in the shares of such Banks and Companies. Shares had to stand in the name of one member of the family. He might or might not be the general manager. But, on his death, these portions of the joint family wealth could not be realized by the survivors without either getting probate of a will or letters of administration to the deceased member in whose name they stood. This has led in practice to a great deal of theoretical absurdity. Wills admittedly made by members of a joint Hindu family purporting to dispose, as of self-acquired property, of joint family property in favour of the survivors, have been solemnly propounded. Probate has seemingly been given as a matter of course. In this way the funds of the joint family invested in the shares of Companies have been obtained by the survivors. But the question early arose whether survivors thus seeking to obtain their own property under the fiction of a devise, should be called on to pay the full duty. The Court-Fees Act exempts from payment of duty any such part of the estate of the deceased testator or person to whom letters of administration are sought, as could be shown to have been held by him as bare trustee without himself having any beneficial interest therein or any power of beneficial disposition. In the class of cases I have described executors or survivors (calling themselves here next of kin) have contended, and on the whole, successfully, that the portion of joint family property, they are thus seeking to obtain, falls within the exemption. A bench of this High Court appears to have held in the case of Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. 652; I.L.R. 29 Bom. 161 that a member of a joint Hindu family had no beneficial interest in any part of the joint estate, and, therefore, that survivors propounding his will in order to be able to obtain shares standing in his name, were entitled to claim exemption on the ground that the deceased in his life-time had had no beneficial interest in the said shares, etc. This part of the judgment is not reasoned, but is professedly based on the decision in the case of In the Goods of Pokurmull Augurwallah I.L.R. (1896) 23 Cal. 980 which Jenkins C.J. said he thought had been rightly decided. If that decision implies the general proposition (which it appears to imply) that no member of a joint Hindu family governed by the Mitakshara has any beneficial interest, during his life, in any part of the joint family property, we feel unable to assent to it. And if the decision does not imply that proposition, it appears to rest on no reason at all.
2. The case has come before us in this wise. There was admittedly a joint Hindu family consisting of a father and a minor son. The father made a will in effect bequeathing the whole property to his minor son. No one has disputed that the family was joint and that the property covered by the will was joint family property. On the authority of The Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. 652; I.L.R. 29 Bom. 161 the executors require us to say that the deceased testator had no beneficial interest in any part of the property devised, and, therefore, that they are exempt from the payment of any duty. In our opinion, this contention is unsustainable.
3. Those who propound a will and claim under it can hardly be heard to say that the testator had no powers of beneficial disposition. When ex concessis, the alleged testator was a member of a joint Hindu family and the whole property covered by the will was joint family property one would have thought that there was no legal foundation for the will, no need of probate. It is not a satisfactory answer, that in probate proceedings the Court has no further concern in the matter than to see whether in fact the will was made, and whether in all other respects it was a valid will. That is of course true, but it does not exhaust the question. If those seeking probate mean to include the whole of the property devised under the exemption clauses, it does become the duty of the Court to enquire so far, at least, as to satisfy itself that the conditions upon which exemption is granted have been fulfilled. Where, in the circumstances mentioned, the whole property is given to the sole survivor, who, again ex concessis, would take it in his own right, will or no will, the will propounded is, on the face of it, a mere nullity to which no effect could be given. Had it been necessitated owing to the testator having invested the joint family funds in the shares of Banks and other Companies, then it appears to us that however anomalous the position, which is thus reached, may be, it cannot be contended that since a will is necessary under which the nominal testator hands on this part of the joint family property to the survivor, he had not at the date of his death any beneficial interest in that property, and was never more than a bare trustee of it for the survivor or survivors. The reason for the exemption is clear. But neither that reason nor any consideration of policy, which occurs to us, would warrant its extension this length. Although the devisee under the will takes but what is his own, if he needs a will to get it we do not see why he should not pay the ordinary duty. He cannot be allowed to blow hot and cold and say in one breath that a will was and was not necessary. It is only by adopting the general proposition, which we find ourselves entirely unable to adopt, that no member of an undivided Hindu family has any beneficial interest in any part of the joint family property during his life-time, that the decision upon which the cross-appellants here rely could be supported. Were it merely a question of policy we should be disposed to take an exactly opposite line, and say that all Hindus taking by survivorship ought to pay duty on the value of the estate so taken, just as all other subjects not governed by the Hindu law of the joint family have to pay duty to the State on property devised or corning to them as heirs.
4. In our opinion, the cross-appellants ought to pay duty on the whole estate covered by the will.
5. The petitioners obtained probate of a will purporting to dispose of property held jointly between the testator and his minor son as members of a joint family under Hindu law. The petitioners, thereupon, claimed exemption from probate duty on the ground that the property was 'property whereof the deceased was possessed as trustee' under Section 19D and was not liable to Court-fee being 'property held in trust not beneficially' within the meaning of Annexure B of Schedule III, Court-Fees Act 1870 relying on the cases of In the goods of Pokurmull Augurwallah I.L.R. (1896) Cal. 980 and Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. 652; I.L.R. 29 Bom. 161.
6. The District Judge decided that the testator's undivided half share in the joint family property could not, but that the minor son's undivided half share in the property could, be regarded as 'property held in trust not beneficially' within the meaning of Annexure B of Schedule III of the Court-fees Act, 1870, relying on the cases of Collector of Ahmedabad v. Savchand (1902) 4 Bom. L.R. 974; I.L.R. 27 Bom. 140 and In the matter of Desu Manavala Chetty I.L.R. (1908) Mad. 93.
7. This Court has been asked, on first appeal, to decide that the whole of the joint family property was 'property held in trust not beneficially' by the testator within the meaning of Annexure B of Schedule III of the Court-fees Act, 1870, on the strength of the last four lines of the judgment in the case of Collector of Kaira v. Chunilal. It appears to me, however, with due deference that that judgment conflicts with the views of joint-family property theretofore accepted. It was said in Appovsier's case (1866) 11 M.I.A. 75 that 'according to the true notion of an undivided family...no individual member...can predicate of the joint and undivided property that he...has a certain definite share' and it was observed in the case of Ramchandra v. Damodhar I.L.R. (1895) 20 Bom. 467 that 'each co-parcener is entitled to a joint benefit in every part of the undivided estate'. It could not, therefore, be said that even the least part of the joint family property was held 'in trust not beneficially' at his death by the testator as prescribed in Annexure B of Schedule III of the Court-fees Act, 1870.
8. It appears to me what has to be looked at in such cases is the estate actually specified in the will and not the estate which could legally be disposed of by the will. It is an accepted principle that the legal effect of the will is not a matter for consideration. The factum of the will alone can be established by proceedings in probate. The estate here specified was the whole joint property. It would not be admissible to consider whether the testator had or had not power to dispose of such property by will. He purported to do so and those desiring to establish the factum of the will must pay the full duty leviable on such property in the necessary proceedings in probate. The case might, no doubt, have been different if the estate specified had been not the whole joint property but only a limited interest in the joint property-if, for instance, the estate specified had excluded the beneficial interests of the members of the family in the property and had strictly been limited to the legal right to parade as proprietor under such statutory provisions as Sections 22 and 23 of the Presidency Banks Act, 1876 or Sections 30(2), 33 and Clauses 21 and 22 of Table A of the first Schedule of the Indian Companies Act, 1913. The possibility of such a case would appear from the remarks in the case of Bank of Bombay v. Ambalal Sarabhai (1900) 2 Bom. L.R. 467; I.L.R. 24 Bom. 350, 359. That would perhaps have been the appropriate manner of meeting the difficulties presented by such statutory provisions as those of the Presidency Banks and Companies Acts.
9. AT this stage the Court thought it desirable to hear what the Revenue Authorities, who had not appealed against the decision of the lower Court, had to say on the point and they appeared before the Court through Jardine, acting Advocate General, with S.S. Patkar, Government Pleader.
Setalvad, with Payne & Co., for the appellants.
D.G. Dalvi, for respondent No. 2.
10. When we dealt with this case we were under the impression that the view which commended itself to us was in direct conflict with the decision of a Division Bench in Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. I.L.R. 652 29 Bom. 161. Furthermore, at that time, the Revenue Authorities were not represented before us. We have, therefore, reconsidered the matter after hearing the Advocate General for the Revenue. While adhering to the view we expressed in our former judgment, and dissenting from what we conceived to be the principle underlying the decision in Collector of Kaira v. Chunilal as well as in that of In the Goods of Pokurmull Augurwallah I.L.R. (1896) Cal. 980, which appears to have been approved by the Judges who decided Chunilal's case, we think that there is a sufficient ground of distinction, namely, that in Chunilal's case, the application had been for letters of administration, here we are dealing with probate. Possibly different arguments may be drawn from those premises, but we are clearly of opinion that where the matter in question is probate, the parties claiming under the will cannot go behind its terms or claim any exemption whatsoever upon allegations utterly inconsistent not only with the fact of the will itself, but with the express statements made therein, nor do we conceive that there is any difficulty created by the fact that we have ourselves been obliged to call upon the Advocate General to protect the interests of the Revenue. When the cross-appeal was before us the Collector was not a party to it. The matter, therefore, so far as the only substantial counter-interest was concerned, was entirely ex parte, and it is the business of Courts to see that the Revenue is not defrauded. Now, however, having called upon the Advocate General and heard his representations in the matter which are in the nature of an appeal, against the order made by the Court below, we are clearly of opinion that the executors must pay full probate-duty upon the will, and we decree accordingly. Costs of Government and the executors to come out of the estate.