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Kalicharan Gupta Vs. Smt. Prag Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O No. 56 of 1971
Judge
Reported inAIR1972All117
ActsCourt fees Act, 1870 - Sections 19D
AppellantKalicharan Gupta
RespondentSmt. Prag Devi and ors.
Appellant AdvocatePrakash Gupta, Adv.
Respondent AdvocateS.P. Gupta, Adv.
Excerpt:
.....- application for probate filed - court fee imposed - matter contested - whatever be the extent of trust property - no court fees to be imposed - fact that detail as to exemption is mentioned in annexure and not repeated in relevant article is irrelevant. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted..........court fee is payable therefor. in the schedule a attached to the application, the valuation of the trust property was riven as rs. 80,000 and in schedule b the details of liability in the said trust property was mentioned as rs. 11515.90. the application for probate was contested by the respondents. one of the grounds taken was that the appellant was liable to pay court fees for the application on the basis of the valuation of the property involved in it, i. e. rs. 68,500. on this, the court framed an issue and came to the conclusion that the appellant was liable to pay rs. 2588.75 as court fee under article 11 of schedule i of the court fees act (hereinafter referred to as the act) and the valuation of the property was fixed at rs. 66,500. hence this appeal.3. section 19-i of the act.....
Judgment:

Satish Chandra, J.

1. This is an appeal under Section 6-A of the Court Fees Act.

2. One Bhagwan Das executed his last will and testament on 22nd February 1965. He died on 14th April 1968. The will named the appellant Kali Charan as the executor. The executor applied for the grant of probate to him. In the application he mentioned that the property involved in the will is a Dharamshala belonging to a charitable trust established in 1912 and by the said will the testator laid down a scheme of management in respect of the said trust, and that no court fee is payable therefor. In the Schedule A attached to the application, the valuation of the trust property was Riven as Rs. 80,000 and in Schedule B the details of liability in the said trust property was mentioned as Rs. 11515.90. The application for probate was contested by the respondents. One of the grounds taken was that the appellant was liable to pay court fees for the application on the basis of the valuation of the property involved in it, i. e. Rs. 68,500. On this, the court framed an issue and came to the conclusion that the appellant was liable to pay Rs. 2588.75 as court fee under Article 11 of Schedule I of the Court Fees Act (hereinafter referred to as the Act) and the valuation of the property was fixed at Rs. 66,500. Hence this appeal.

3. Section 19-I of the Act provides that 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 the valuation of the property in the form set forth in the Third Schedule, and the court is satisfied that the fee mentioned in entry No. 11 of the First Schedule has been paid on such valuation. This section itself does not lay down any principles to determine what are the assets and liabilities of the deceased; that has to be determined in accordance with the general law. In the present case it is agreed between counsel that the deceased was the trustee of a charitable trust and that the will executed by him exclusively related to this trust property. In the will he laid down a scheme of management including the provision for successor trustees. It is, clear that the testator cannot claim any personal interest in the property which was governed by a public trust. The property appertaining to the trust not being his assets, could not form the basis of valuation for the purpose of payment of court fees for the application for probate, under Article 11. Under that article court fee has to be paid in accordance with Article 19-I.

4. The position that trust property is not liable to be included in computing the valuation of the properties upon which court fee has to be paid is corroborated by the Third Schedule. Annexure A of that schedule deals with valuation of moveable and immovable properties of the deceased, while Annexure B is the schedule of debts, etc. One of the items mentioned in Annexure B is:

'Property held in trust not beneficially or with general power to confer a beneficial interest.'

This wouldalso show a legislative intent that trust property is not to be considered an asset of the deceased. Further, Section 19-D also points in the same direction. It provides that the probate of the will, or the letters of administration of the' effects, of any person deceased, will be valid and available by his executors and administrators for recovering, transferring or assigning any movable or immoveable property whereto the deceased was possessed or entitled, either wholly or partially as a trustee, notwithstanding the amount or value of such property is not included in the amount or value of the estate in respect of which court fee was paid. Thus, even in a case where the estate of the deceased consists of his personal properties and also trust properties and though no court fee may have been paid on the trust properties, yet the probate would operate in regard to trust properties as well. These provisions clearly show that a person is not required to pay court fee for an application for probate in respect of trust properties. It is immaterial as to what the extent of trust property is involved in a particular will. In the present case the entire property which was subject-matter of the will related exclusively to a trust; therefore no court fee was payable.

5. Article 11 of the Second Schedule only gives the rate at which the court fee is payable on the valuation mentioned in Section 19-I. The fact that the exemption clause mentioned in Annexure B of Schedule III has not been repeated in Article 11 (1) is entirely irrelevant. The same view was taken by the Full Bench in Sri Ram v. Collector, Lahore, AIR 1942 Lah 173 (FB).

6. In the Goods of Lala Madho Prasad : AIR1935All449 it was observed that an application for probate cannot be allowed until the duty required by Article 11 has been fully paid. We do not see any relevance of this case in regard to the point that has been raised before us. If no court fee is payable upon an application for probate or for letters of administration in accordance with the provisions of the Act, Article 11 will not take away the effect of these provisions. As seen above, Section 19-D makes it explicit that even though no court fee may have been paid on trust property, yet a probate once granted would be effective qua trust properties.

7. The entire confusion stemmed from the defective nature of the application filed by the appellant. Schedule A attached to it mentioned the full value of the trust property while Schedule B stated the liabilities thereof. Actually the entire value of the property should have been mentioned in Schedule B alone. The court below will however permit the appellant to amend the schedule properly.

8. In the result, the appeal succeeds and is allowed. The impugned order is set aside and the matter is remitted to the trial court for passing a fresh order in accordance with law and in the light of the observations made above. The parties will however bear their own costs.


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