1. This matter arises out of office note put up in regard to the Court fee payable for issue of probate in this case. The question has arisen on account of the amendment made to the Karnataka Court-fees and Suits Valuation Act. 1958, (hereinafter referred to as the 'Court-fees Act') by the Karnataka Taxation Act and Certain Other Laws Amendment Act, 1982, (hereinafter referred to as the Amendment Act). By S. 4 of the Amendment Act, the Court-fees Act has been amended. We are concerned with the amendment made to Art. 6 of Schedule-: by which 5 per cent court-fee is payable where the amount of the value of the property in respect of which the grant of probate or letters is made exceeds 1000 rupees but does not exceed Rs. 3 lakhs and in all other cases if the amount exceeds Rs. 3 lakhs the probate duty chargeable is 10 per cent of the value of the estate.
2. Probate Civil Petition No. 2/1982 was allowed by an order made by me on 31-3-1982. The practice of this Court has been to call upon the petitioner to produce the necessary court-fee for issue of probate as directed by the Court after the petition praying for probate has been allowed and an order made in that behalf.
3. It is stated from the Bar that even the Courts of the District Judges or the City Civil Judges as the case may be have the same practice.
4. On the date the probate was ordered to be granted, the court-fee payable for grant of probate in addition to the Court fee on the memorandum of probate civil petition was governed by Art 6 of the first schedule as it was before its amendment with effect from 1-4-1982. The question is whether the petitioner should be called upon to pay the court-fee in accordance with the rate of fee prescribed for grant of probate as on 31-3-1982 or at the rate now obtaining after the amendment with effect from 1-4-1982 which is the same as calling upon the petitioner to pay court-fee as on the date of actual issue of probate.
5. The office has raised one other question, namely, whether the fee should be charged as on the date of the application? It really does not arise in this petition. But nevertheless in deciding the other question, this question also will automatically be answered.
6. On 21-7-1982 a notice was ordered to the Government Advocate as any decision in the case would affect public revenue of the State and he has been heard Mr. K. S. Setlur, who appears for petitioner who is required to make the payment also has been heard. Shri Lasle D'Silva, Advocate, who has some petitions filed before 1-4-1982 which are pending in other Courts with permission has intervened and submitted his arguments.
7. Mr. Setlur has argued for the proposition that court-fee should be paid at the rate that was obtaining on the date the court made the order directing granting probate while Mr. Lesle D'Silva has argued for the proposition that the date of petition is the relevant date and therefore the Court-fee on probate should be paid as obtaining on the date of the presentation of the memorandum of petition and not of any order date.
8. Before adverting to the arguments advanced and the citations made, it is useful to state that these question are not free from doubt on account of not only the conflicting decisions of the High Courts in India but also because the provisions of the Indian Succession Act as well as the provisions of the Court-fees Act and the probate Rules of this High Court are not specifically clear in this behalf. In fact, the probate rules of this Court are totally silent on this aspect of the matter of payment of court-fee.
9. It would be useful to advert to the arguments of Mr. Lesle D'Silva as he has placed reliance essentially on the decision of the Division Bench of this Court in the case of Re: Court-fee (1961 Mys LJ 496) in support of the proposition canvassed by him.
10. In that case the Division Bench of this Court consisting of Somanath Iyer and Narayana Pai, JJ.. as they then were, was concerned with the court-fee payable on a memorandum of appeal when presented on account of the increase in the rate of court-fee between the time the suit claim was presented in the trial court and the time the appeal was presented. The two views canvassed were more or less the same as in this case. One was that the court fee payable would be in accordance with the rate prescribed as on the date of presentation of the appeal while the opposite view was that the court-fee payable would be as on the date of the institution of the suit. This Court came to the conclusion after examining certain decided cases of other High Courts and the Supreme Courts that the court-fee payable would be at the rate applicable on the date of the presentation of the suit, as an appeal was a mere continuation of the suit. Reliance was essentially placed on the decision of the Supreme Court in the case of State of Bombay v. M/s. Supreme General Films, Exchange Ltd. : 3SCR640 Das. J., (as he then was) in reaching the conclusion of the Supreme Court gave the following reason:-
'An impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only: it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.'
In other words, the ratio of the Supreme Court decision as followed by the Division Bench of this Court was entirely based on the language of the amending Act. It is, therefore, useful to refer to the relevant provision in the amending Act which is as follows:-
'S. 1 Short little and commencement.- (1) This Act may be called the Karnataka Taxation and Certain other Laws (Amendment) Act, 1982.
(2) Section 5 shall come into force on the first day of July. 1982 and the other provisions shall come into force on the first day of April 1982.
Sections 4 (1) to (3)......................................
(4) In Sch. I. for Art 6. the following Article shall be substituted, namely;-
(6) Probate of a will or letters of administration with or without will annexed;
When the amount or value of he property in respect of which the grant of probate or letters is made exceeds one thousand rupees, on the part of the amounts or value in excess of 'one thousand rupees, up to three lakhs of rupees. ....................... Five per centum when the amount or value of the property in respect of which the grant of probate or letters is made exceeds three lakhs of rupees, on the part of amount or value in excess of three lakhs of rupees. ................ Ten per centum.'
(5) (not necessary)
11. The language of the amending section is clearly indicative that it is prospective in its application in other words, by process of substituting the new rate in accordance with the provisions of the new Schedule what was done was to remove the earlier Schedule and the rate prescribed therein and substitute the new Article in the Schedule to be effective from 1-4-1982. There is nothing in the language which is suggestive that the amendment is retrospective. There are no saving provision either in the section itself or in the whole of the amendment Act itself.
12. In the result, once this Court comes to the conclusion that it is prospective then the question which is required to be answered is whether a probate civil petition presented in this Court is the same as an appeal, against the judgment in a original suit instituted in a Civil Court. The answer is clearly in the negative. This Court acts as the Court of first instance when entertaining probate civil petition under the provisions of Part-IX of the Indian Succession Act. If the probate matter is contested, the rules require the same to be treated as testamentary original suit and proceeded with in accordance with the Civil P. C. as if it were a suit instituted in this Court. The position really does not alter even if it remains uncontested. Further, either an order without contest granting probate or an order granting or refusing probate after contest is appealable to a Division Bench of this Court. In the result, though the amendment Act is prospective the benefit of the ruling of this Court in the aforementioned case is not available for application to support the proposition of Mr. Lesle D'Silva.
13. He next drew my attention to the decision of the Patna High Court which is also a decision rendered by a Division Bench of that High Court in the case of Mundrika Prasad Singh v. Mst. Kachnar Kuer : AIR1955Pat362 . The question in regard to payment of court-fee in somewhat similar circumstances was gone into in great detail with reference to several earlier decided cases of that High Court as well as the other High Courts. After discussing several other decisions, the learned Judges came to the conclusion that the date on which the court-fee should be paid is the date on which the Court directs payment of such court-fee, but before the hearing of the petition has commenced. This is evident from the last but one para of their Lordships' Judgment as reported in the All India Reporter. However, in order to reach that conclusion. Banerji, J., who wrote the leading judgment with which Raj. J., concurred relied on the language of Sec 19-1 which is in part material (substantially) with Section 54 of the Court-fees Act (Karnataka). According to the learned Judge, there are four stages in disposing of a probate civil petition, the first stage is when an application is made for probate and at that time the court-fee to be paid is according to what is prescribed in the relevant Court-fees Act. In the instant case, sub-Art (n) of Art. 11 of the II Sch to the Court-fees Act is applicable. In other words, the reference is to the payment of court-fee on the memorandum of petition and not on the probate which is yet to be granted or refused. It is useful at this stage to make it clear that it appears to be the universal practice in this Country at least that two sets of court-fees are paid one on the memorandum of petition presented to the Court and the other when probate is granted or is to be granted. The court-fee paid on the memorandum is nominal and fixed while the probate court-fee is on basis of the valuation fixed by the Court either by accepting the valuation put by the petitioner or in accordance with the provisions of the Act. The payment of court-fee on the memorandum of petition is not at all open to any doubt as the provisions in to Court-fees Act are clear.
14. The second stage is the stage of fixing of the valuation of the assets of the deceased. The third stage is the stage of hearing of the petition directing the grant of probate or refusing the same and the fourth and the last stage is actual issue of probate in the prescribed form by the Office of the High Court.
15. I am certainly in agreement with the view of the Division Bench of the Patna High Court as to the interpretation of Section 54 of the Court-fees Act (corresponding to Section 19(1) of the Act considered by that Bench). But I am unable to agree, with respect, with the order of the four stages of the proceedings arranged by them. The prohibition imposed in Section 54 of the Court-fees Act is only to the extent of not granting the probate unless the prescribed court-fee thereon is paid. That cannot be read so as to mean that an application for grant of probate should not be entertained and heard as has been held by the learned Judges of the Patna High Court in the decision under reference. The very fact that probate fee is more akin, to levy of duty, when a court-fee is separately prescribed as against the fixed court-fee on the memorandum of petition itself, is suggestive of the construction that the legislative intent was to entertain the application on payment of the fixed court-fee on the memorandum of petition and at the appropriate stage direct payment of probate fee or probate duty if I may so refer to it. Therefore, the Court directing payment of probate fee will depend on the facts of each case (sic). One has to be practical in working the Indian Succession Act subject to law relating to court-fees.
16. In this very case after the probate was ordered to be granted, the Court had to issue a direction to the Bank to release part of the funds of the estate of the testator to the executor of the will in order to enable him to pay the probate court-fee as the executor did not have funds. Such circumstances can frequently come up before the Court. Some executors may not have the necessary funds at their disposal to pay huge probate court-fee and they cannot be denied the probate for nonpayment of court-fee if they are otherwise entitled to the grant of probate or letters.
17. Therefore, I am of the view, if pragmatic view is taken of the matter it should be left to the discretion of the Court as to at what stage probate fee should be charged. The present practice appears to be a convenient one which does not put any one in difficulty except when a rise in the probate fee is occasioned by amendment of the Court-fees Act.
18. I am therefore of the view that the various stages in the matter of grant of probate as explained by the Division Bench of the Patna High Court need not be in the order mentioned by them.
19. Mr. Lesle D'Silva also relied upon the decision of the Division Bench of the Bombay High Court in the case of In Re Jerbai K. Kapadia (AIR 1945 Bom 1). I do not think any useful purpose is served in adverting to the discussion in that case because while undoubtedly Section 19(1) of the Court-fees Act did fall for consideration. the decision turned entirely on the High Court Probate Rules which required the taxing master of the Court to indicate on the memorandum of petition, the probate fee to be paid with a direction such probate fee be paid before the matter is taken up before the Court. I have already pointed out, in our Rules no such provision is made for taxing the petitioner directing payment of court-fee on the value of the net assets of the estate probated before the petition is posted for orders before the Court. Undoubtedly it will be useful to make appropriate rules indicating the stage at which the probate fee for issue of probate should be charged. But in the absence of such rule what is pragmatic and convenient for all concerned and prudence directs, should be followed.
20. A similar question arose for consideration before the Travancore-Cochin High Court in the case of P. K. Mundan v. State (AIR 1954 Trav-Co 520) (FB) After considering a number of decided cases of other High Courts including that of the decision of the Bombay High Court to which I have referred, their. Lordships of the Full Bench of the erstwhile High Court of Travancore-Cochin came to the conclusion that the relevant date for purpose of calculating the court-fee payable would be date on which the court ordered the grant of probate and not any other. Adopting the reasons of their Lordships I am inclined to agree with that view. The reasons I wish to add are the following:-
(1) There may be instances when a probate petition may not be pressed and therefore to charge probate fee even at the stage of petition for granting of probate would be too harsh on the petitioner.
(2) A petition for probate may be contested or may not be contested. If contested, as already pointed out the court-fee payable remains nominal. To ask the petitioner to pay probate duty in full even before the contest has begun is to put the cart before the horse:
(3) The petitioner as already pointed out may be enabled to pay under directions of the court when he lacks ready funds to pay court-fee on probate: and
(4) Issue of probate is an administrative action to be carried out by the court and though it may be issued at a subsequent date than the order of the court, and in fact and in law takes effect from the date the order for grant is made by the Court and actually is effective by the operation of law from the date of death of the testator and therefore the date of order granting probate is the relevant date for charging the fee or levy.
21. So, for all these reasons. I must hold though it adversely affects the petitioner in the instant case the fee payable by him for issue of probate will be the fee that was obtaining on the date the probate was granted, which in the instant case is 31-3-1982.
22. Order accordingly.