1. This is an appeal against a Judgment of Desai J. by which he ordered probate to issue to the petitioners of a will of one Louisa Catherine Rodricks. The will was opposed by the appellant substantially on two grounds. One was that the petition for probate was not in We proper form and that proper court-fees had not been paid, and the other ground was that the will had been obtained by undue influence. With regard to the first ground the position is this.
In the petition for probate in Schedule I the two petitioners have shown the value of moveable properties as Rs. 850/-. That is the only property which has been shown in this Schedule. Then they have annexed Schedule III and in that Schedule they have shown the value of immoveable property at Rs. 35,000/-, and with regard to this Schedule there is an averment in para 9 of the affidavit, in support of the petition that this property is the subject-matter of the suit filed by the deceased testatrix in which suit she claimed this property as belonging to her.
Admittedly, no court-fees have been paid on the value of this immoveable Property viz., Rs. 35,000/- and the direction given by the learned Judge with regard to this property was that the petitioners should file a statement in the Courtshowing the result of the suit and the petitioners should undertake to pay the probate duty if the suit was determined in their favour, and Mr. Gauba on behalf of the appellant has contended that the order passed by the learned Judge is not justified by the provisions of the Court-fees Act and that the insertion of Schedule in to the petition, is also not in accordance with the Court-fees Act.
2. Turning to the Court-fees Act, Section 19-I provides :
'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 the third schedule, and the Court is satisfied that the fee mentioned in No. 11 of the first schedule has been paid on such valuation.'
Therefore, two conditions are laid down before an order entitling the petitioner to the grant of probate can be passed and the two conditions are that he must file in Court a valuation of the property in accordance with the form which is to be found in the third schedule to the Court-fees Act, and the second condition is that he must pay the court-fees mentioned in No. 11 of the first schedule of the Court-fees Act.
Turning to the third schedule, we find that the form contains two annextures, annexture A which is 'Valuation of the moveable and immoveable property of deceased', and Annexture B which is 'Schedule of debts, etc.' The form does not) contemplate any other annexture besides Annextures A & B and with regard to Annexture A the person applying for probate has got to state:
'I solemnly affirm that I have truly set forth in Annexture A to this affidavit all the Property and credit which the abovenamed deceased died possessed of or was entitled to at the time of his death, and which have come, or are likely to come, to my hands,'
So that Annexture A must comprise not only property which has come to the hands of the executor but also property which is likely to come to his hands. Any property which the deceased died possessed of or was entitled to at the time of his death must be shown in Annexture A.
Annexture A then sets out how various properties moveable & immoveable are to be valued & when we turn to immoveable Property the mode of valuation is laid down and the mode of valuation is this. In the case of houses the petitioner has to give the description, the assessed value, if any, and the number of years' assessment the market-value is estimated at, and in the case or land, the area, the market-value and all rents that have accrued.
3. It may be pointed out, in view of certain authorities to which reference will be Presently made, that in the case of book debts what has got to be shown are debts other than those which are bad and there is also a column in Annexture A 'Other property not comprised under the foregoing heads', in which case the petitioner has got to give the estimated value of this Property.
If the immoveable property to which reference has been made in the third schedule was the property to which the deceased was entitled, then It must be shown in Annexture A whether it was actually in the hands of the executor or was likely to come to his hands, It is difficult to understand under what provision of the law this property can be shown in an entirely independent schedule.
The fact that this property is the subject-matter of the suit in our opinion is an entirely irrelevant consideration. Either the deceased, according to the petitioners, was entitled to this property or not. If the deceased was entitled to the property, then the property must be shown in Annexture A, and if the property is shown in Annex-tare A then it can only be valued in the manner laid down In Annexture A itself, and as this property which is the subject-matter of the suit is land, what the petitioners have got to show is its market-value and having shown its market-value court-fee on this valuation has got to be paid.
The answer given by Mr. Sanghvi is that theproperty has not been brought into possession,that it is still the subject-matter of a litigation,that whether the petitioners would get this property or not would depend upon the decision ofthe suit and that at present all that the petitioners have is a right of action with regard tothis property.
In our opinion, this contention is entirely untenable. A mere right of action cannot be property which need be shown at all in Annexture A. What has got to be shown in Annexture A, as we have already pointed out, is some property moveable or immoveable which the deceased died possessed of or to which the deceased was entitled, and the sole reason why the petitioners have brought in this property at all in this petition is because in their opinion the deceased was entitled to this property.
Once the deceased was entitled to this property, then the property to which the deceased was entitled has got to be valued and the possibility that the executors of the deceased may not be able to establish the title of the deceased in the litigation cannot possibly affect the valuation of that property. If ultimately the suit fails and the title of the deceased to the property is not established, it may be -- we express no opinion on it -- that the petitioners may be entitled to claim a refund with regard to the court-fees paid on this property.
But at the stage of application for probate the property must be shown on the basis that the deceased was entitled to that property, and if it is shown on that basis then the valuation must be in accordance with Annexture A and not in accordance with an estimate put by the petitioners based upon the possibility of the litigation with regard to the property failing.
If the property which was shown in Annexture A was other property which was not comprised under the foregoing heads included in Annexture A, then undoubtedly the petitioners are entitled to put a value upon the other property and the value can only be an estimated value. But if, a property falls under any one of the heads enumerated in Annexture A; it is not open to the petitioners to bring it under 'other property' and to put an estimated value.
It is difficult to understand how these lands, in respect of which a suit is pending and which lands were claimed by the deceased and in respect of which the petitioners themselves say that the deceased was entitled, could be said to be not immoveable property falling under one of the heads in Annexture A but other property which is not comprised, under any of the foregoing heads.
Therefore, in our opinion, the petitioners should have shown this property in the first schedule to their petition for probate, that it was not open to, them to show It in the third schedule, and also it was not open to them not to pay court-fees on the valuation of this property.
4. Reliance has been placed on a judgment of Sir John Beaumont reported in -- 'In re Radhibal Rupji Sunderji' AIR 1931 Bom 419 (2) (A). That was a case which was concerned with a judgment-debt due to the estate of the deceased andthe representative of the deceased person was of the opinion that that judgment-debt was not likely to be recovered in full and therefore he estimated that judgment-debt at Rs. 500/- when 'the judgment-debt Itself was for Rs. 10,000/-, and the question arose whether this was a proper valuation and whether he was not liable to pay duty on Rs. 10,000/- and not on Rs. 500/- and Sir John Beaumont held, and with respect rightly, that judgment-debts falling under the sub-title 'other property not comprised under the foregoing heads', and if that was so then undoubtedly the legal representative was entitled to estimate the value of the judgment-debt, and with regard to the estimate the value of the judgment-debt, and with regard to the estimate of these debts the learned Chief Justice said that the same rule should apply to a book-debt as to a judgment-debt, and he referred to bad debts which are mentioned in the schedule and said that the reference to debts which are bad is made in the ordinary commercial sense and denotes debts which are not likely to be recovered fn full and that they must be valued at the figure which they are estimated to produce.
5. Mr. Sanghvi wanted to refer to some earlier decisions of other High Courts, which decisions were given before the third schedule was incorporated in the Court-fees Act which was done by Act 11 of 1899. In our opinion, those decisions are not of much help in construing the language of Schedule III.
In particular reliance was placed by Mr. Sanghvi on a judgment, of the Calcutta High Court in -- 'In the goods of, Abdool Aziz' 23 Cal 577 (B). In that case Ameer Ali' and Sale JJ. took the view that where property had not been reduced into possession at the time of taking of probate, and the right to It is the subject of a suit, it is permissible to declare the value of that property as not exceeding Rs. 1,000/-.
With very great respect. It is difficult to understand how a mere right of action can be property which can be valued at all or in respect of which any duty need be paid. But whatever that may be, this decision was given when there was no obligation upon a person applying for probate to value the property in the manner laid down in the third schedule.
6. Therefore, with respect to the learned Judge, we are of the opinion that if he was inclined to grant probate he should have withheld the passing of the final order till property duty was paid as required by law. Some reference has been made by the learned Judge to the practice prevailing on the Original Side. We are not aware of any such practice.
Assuming there was such practice, clearly any Practice cannot override the clear provisions of the law, and although in some cases the provisions of Section 19-D and the third schedule may cause hardship, we cannot for that reason refuse to give effect to the clear intention of the Legislature.
7. Coming to the merits of the matter, there is very little that can be said in support of Mr. Gauba's contention that the will should not have been admitted to probate on the ground that it was brought about by undue influence. (After briefly reviewing the facts with respect to this, contention his Lordship concluded :)
As the learned Judge has pointed out, there is not a title of evidence adduced by the appellant in support of these allegations, and the learned Judge has taken the view that as the burden of establishing undue influence in respect of which the appellant raised the issue wasupon the appellant, the burden was not discharged and therefore there was no reason why the will should not be admitted to probate.
Mr. Gauba has quarreled with this proposition of law and before we deal with certain materials on record to which Mr. Gauba has drawn our attention it may as well be that we should clearly state what the principle of law is with 'regard to the granting of probate of a will.
8. It is undoubtedly true that the burden is always upon the propounder of a will to satisfy the Court that it is the last will and testament of a person who is capable of making the will and who made the will as a free agent. It is also clear that if there is any suspicion which attaches to the making of the will, then the person propounding the will must clear that suspicion and satisfy the conscience of the Court, and the authorities have laid down that suspicion will attach to the making of the will if the will is prepared or made by a person who gets benefit under the will, and that prima facie raises a suspicion which has got to be removed.
But apart from these general principles, if a person opposing the will contends that the will has been brought about by importunity of a person or by the exercise of undue influence by a particular person, then undoubtedly the burden of establishing that is upon the person who puts forward the contention.
It would be erroneous to suggest as Mr. Gauba suggests that the burden of proving that there was no undue influence was upon the petitioners. It will be contrary not only to the law of wills but to the first principles of law of evidence, and we cannot expect the propounder of the will to prove the negative that there was no undue influence exercised upon the testatrix.
It is entirely a different thing to say, very different from what Mr. Gauba contends, that it Ss the duty of the propounder of the will to remove any proper suspicion which may arise by the Court looking at the circumstances surrounding the making of the will, and it is also an equally different proposition to contend that the conscience of the Court must always be satisfies before the Court grants probate.
In this case Mr. Gauba says that there is clear suspicion attaching to the making of 'the will because the testatrix lived with her daughter and the daughter is the principal beneficiary under the will. There is nothing on the record to snow that the will was made or prepared by the daughter. The record also shows as already pointed out that the daughter was nowhere near the mother when she actually wrote out the will and executed it.
The living of the mother with the daughter under the circumstances of the case was very natural; she, having quarrelled with her son and fallen out with him, went to live with her other child, and the mere living of the mother and the daughter together cannot possibly raise any suspicion which it would be incumbent upon the appellant to expel, especially when we bear in mind the fact that the mother was not an illiterate person -- she was an educated person who had actually served as a school teacher.
9. Reliance is then placed on the will itself. The will cannot be considered to be an unnatural will although it disinherits the only son that the testatrix had and leaves practically the whole of the property to the daughter and only some pots and pans and furniture and cutlery of the value of Rs. 5000/- are left to the son. But the testatrix gives reasons why she has disinherited him.
We are not concerned with the validity ofthose reasons, we are concerned with the motive which influenced the mother for not leaving any of her property to her son, and she points out that there was dispute between herself and hen son with -regard to her husband's will and that the son was not behaving as a loving and dutiful son, and she has also referred to the proceedings in the revenue Courts with regard to the mutation of entries, and therefore she says that she is leaving the property to her daughter and not to her son. But there is a statement in this will on which strong reliance has been placed by Mr. Gauba and that is that she says : 'Altogether he has made my life a misery at my age and in my sick and helpless condition.'
Mr. Gauba also relies on an affidavit made by the testatrix on 6-11-1952 in certain proceedings relating to her husband's will, which affidavit has been exhibited, and in that affidavit she says that she was in a state of shattered health and also refers to her bad state of health; and the argument of Mr. Gauba is that a woman who on her own admission was in such a state of health would be amenable to importunity or undue, influence and once her state of health is established to be bad the Court must look with suspicion on her will which leaves all the property to the person with whom she was staying and must require the propounder to remove that suspicion.
Now, women are not unknown to use the language of exaggeration and one must not forget that the testatrix was about 70 years of age and she was by no means in a very robust state of health. But what we have to consider is, what is the actual evidence on the record with regard to the state of her health at the time she made her will, and that evidence is not her own view about her own health but the view of the expert and that is the doctor who has given evidence and which we have already referred to earlier.
That evidence is clear that there was nothing seriously wrong with her health. Therefore, if she was in normal state of health to be expected of a woman of about 70 years, the Court cannot presume that she was liable to be influenced or should feel suspicious about the making of the will. Mr. Gauba has also tried to satisfy us that some of the nasty things that the testatrix has said about his client were not true.
We are not concerned with that aspect of the matter at all. Whether true or not, that is what the mother felt about her son and as we pointed out that supplies a very strong motive for the fact that she left nothing at all to him. There is one further tiring. The will itself contains no internal evidence of any undue influence.
If at all it contains Internal evidence of resentment felt by the mother against the conduce of her son, and therefore from that point of view also the Court could not say that on reading the will it would require some evidence to dispel any suspicion that might be formed as to the making of the will.
We might say that Mr. Gauba has not even attempted to argue that the testatrix did not have the necessary testamentary capacity and that the will was not duly executed. As we have already stated, the only contention put forward was that the making of the will was vitiated by undue Influence exercised by the parties referred to in the affidavit.
10. The order of the learned Judge will have to be modified in view of what we have stated in the earlier part of the judgment. We will direct that the probate should not Issue to the petitioners until they have paid the proper court-fees as indicated in the judgment.
We will also permit the petitioners, respondents before us, to amend the petition for probate and to bring it into conformity with the form contained in the third schedule to the Court-fees Act. Subject to this the appeal will be dismissed and the decree and order passed by the learned Judge will be confirmed. The appellant must pay the costs of the appeal..
11. Order accordingly.