1. This is a court-fee matter arising out of a reference under Section 5 of the Court Fees Act. There is no dispute about the facts relating to the present case. The sole question that arises is one of law, and relates to the amount of court-fee that would be payable on the application for the grant of a probate of the Will of one Ernest Raymond Yakchee who died on the night of the 9th/10th September 1954. The deceased had executed a Will in respect of his property on the 16th July, 1946. On 15-1-1955, en application for the grant of a Probate of the said Will was made by the Rt. Rev. Dr. L. Raymond, the Bishop of the Roman Catholic Diocese of Allahabad.
The property which was the subject-matter of the Will was valued at Rs. 5,09,179/-. The office assessed the court-fee at an amount of Rs. 31,553-3-0. This assessment having been contested by the applicant, the matter was placed before the Taxing Officer. The Taxing Officer, being of the opinion that the question involved in the case was one of general importance, referred the case to the taxing Judge for final decision. The case was heard by a learned single Judge of this Court. In the opinion of the learned single Judge, the proper court-fee payable on the petition was only Rs. 803-3-0.
In view, however, of the importance of the question involved, he directed that the file of the case be placed before the Hon'ble the Chief Justice with a suggestion that a Bench may be constituted to decide the matter. In accordance with the said suggestion, the Hon'ble the Chief Justice constituted this Bench to dispose of the matter. The case has, accordingly, come up before us today.
2. Before the hearing of the case, the learned counsel for the petitioner raised a preliminary objection to the effect that this Bench has no jurisdiction to near this case. He relied on Section 5 of the Court Fees Act, and argued that the Taxing Officer having referred the matter to the Taxing Judge, this case can only be heard by the Taxing Judge and no other Judge. I, however, find myself unable to uphold his contention. The words 'Taxing Judge' are not used in Section 5 of the Court Pees Act. All that Section 5 lays down is that when any difference arises between the Taxing Officer and the petitioner, and the Taxing Officer is of the opinion that the question is one of general importance,'he shall refer it to the final decision ofthe Chief Justice of such High Court, or ofsuch Judge of the High Court as the Chief Justiceshall appoint either generally or specially in thisbehalf.'
Under the aforesaid provision, therefore, the matter could have been decided either by the Hon'ble the Chief Justice himself or by any other Judge of the High Court whom he might appoint. This matter was originally sent to my learned brother Desai J., for decision. After hearing the matter, my learned brother directed that, as the question involved was of great importance, the file of the case be placed before the Hon'ble the Chief Justice with a suggestion that he might constitute a Bench to decide the matter.
The file of the case was, accordingly, placed before the Hon'ble the Chief Justice, and thereafter the case was fixed before the Bench.
3. Section 5 of the Court Fees Act does not prescribe any form in which the order of the Chief Justice appointing a Judge or constituting a Bench to hear a matter should be passed, The order, as the section itself shows, might be a general or special one. It might be a written or even an oral one. This Bench was constituted after the file of the case was placed before the Chief Justice with the suggestion that he should constitute a Bench for hearing this matter.
The Cause List of the Court is prepared with the approval of the Chief Justice, and it must, therefore, be taken that he has constituted this Bench to decide the question. I am, accordingly of opinion that there is no force in the preliminary objection raised by the learned counsel.
4. Coming to the merits of the case, the only Question raised before us relates to the amount of court-fee payable in respect of the application for the grant of probate of the Will relating to property valued at Rs. 5,09,179/-. The relevant provision of law dealing with this matter is contained in Schedule I of Article 11 of the Court Fees Act, The particular (provision of the Act according to which the court-fee on an application for the grant of probate is to be levied under Schedule I of Article 11 is Section 19-I(i) of the Court-fees Act, according to Section 19-I(i).
'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, in the form set forth in the third schedule, a valuation, according to the market rates current on the date of the application of all the assets and liabilities of the deceased in the States, at the time of the latter's death, and the Court is satisfied that the fee mentioned in Article 11 of the first schedule has been paid on such valuation.'
A perusal of this section would indicate that it requires two things to be done. Firstly, it states that a valuation of all the assets and liabilities of the deceased at the time of the latter's death should be made according to the market rates current on the date of the application. Secondly,it lays down that after the said valuation is arrived at, a fee should be levied 'on valuation' in the manner mentioned in Article 11 of the first schedule. According to Section 19-I(i), therefore, the first step consists in making a valuation of the property, and the second step consists in making an assessment of court-fee on such valuation.
It is, therefore, clear that under Section 19-I(i) of the Court Fees Act, the court-fee on an application for the grant of probate bears a direct relation to the valuation of the property and is levied 'on such valuation.' This intention of the Legislature should be steadily kept in mind in interpreting Article 11 of the first schedule of the Court Fees Act.
5. Proceeding to Schedule I of the Court Fees Act, we find that it contains three columns in respect of each Article. Column I specifies the particulars of the document or documents to be charged with court-fee. Column 2 specifies the conditions under which the court-fee is to be charged. Column 3 specifies the proper amount of court-fee to be charged. The three columns are thus inter-related, and are to be read together for the purposes of the construction of the various articles and the determination of court-fee under each. Coming now to the particular Article viz. Article 11, we find that it contains eight clauses.
These eight clauses may conveniently be divided into two groups The first group consists of the first three clauses i.e., Clauses 1 to 3; and the second group consists of the remaining five clauses, that is, Clauses 4 to 8. According to the first clause, property upto the value of one thousand rupees is exempt from taxation, but when the amount of value of the property in respect of which the application for grant of Probate is made exceeds one thousand rupees, but does not exceed ten thousand rupees, then according to column 3, a court-fee of two and a half per cent., is to be levied on such amount or value.
According to Clause 2 of Schedule I of Article 11, when such amount or value exceeds ten thousand rupees, but does not exceed fifty thousand rupees, then according to column 3, a court-fee of three and one fourth per cent., is to be levied on such amount or value. According to Clause 3, when such amount or value exceeds fifty thousand rupees, but does not exceed one lakh of rupees, then according to column 3, a court-fee of three and three-fourth per cent., is to be levied on such amount or value.
6. Three common features of all the three clauses that fall within this group should, however, be noted. Firstly, all these three clauses lay down the minimum as well as maximum limit of the valuation of the property for the purposes of application of each clause. The result is that if a particular matter falls within one clause, it cannot fall within any other clause; because, not only the minimum limit is specified but also, the maximum limit. Once the valuation exceeds the maximum limit, the matter falls outside that clause altogether.
Thus, both the lower as well as the upper limit having been fixed in each clause itself, the result is that each clause in this group is self-contained. Only one clause can, therefore, apply to a case where the property falls within any of the first three clauses. Upto one lakh, therefore, it is not possible to apply more than one clause to a particular case. In other words, the three clauses of the first group are mutually exclusive.
7. The second point to note in connection with this group is that the court fee is levied not on any portion of the amount of the property which is the subject-matter of the Will, but on the entire property. For the purposes of the application of each of the three clauses of the first group, what is to be seen is the aggregate value of the property, and the court fee is assessed on such aggregate value not by dividing it into various portions, but by treating the whole aggregate as one total amount.
8. The third, feature to note is that in order to achieve the purpose of assessing the court fee on one total amount, the Legislature has in the third column used the words 'on such amount or value.' The addition of these words in the third column was made deliberately, as that is the column which specifies the proper amount of court fee leviable. The purpose of the addition of these words in that column was to make it clear beyond any shadow of doubt that the total value was to be treated as one aggregate amount for the purpose of the assessment of the court fee.
9. We may now take the remaining five clauses which comprise the second group mentioned above. These remaining clauses are Clauses 4, 5, 6, 7 and 8. According to Clause 4, when such amount or value exceeds one lakh of rupees, then according to column 2, court-fee is to be paid on the portion of such amount or value which is in excess of a lakh of rupees upto two lakhs of rupees.' According to column 3, the court-fee leviable under this clause is five Per cent, on such amount or value, i.e. the portion referred to in column 2.
Similarly, according, to Clause 5, when such amount or value exceeds two lakhs of rupees, a court-fee of six and one-fourth per cent., is to be levied 'on the portion of such amount or value which is in excess of two lakhs of rupees upto three lakhs of rupees.' According to Clause 6, when such amount or value exceeds three lakhs of rupees, a court-fee of seven and half per cent., is to be levied 'on the portion of such amount or value which is in excess of three lakhs of rupees; upto four lakhs of rupees.' According to Clause 7, when such amount or value exceeds four lakhs or rupees, a court-fee of eight and one-fourth per cent., is to be levied 'on the portion of such amount or value which is in excess of four lakhs of rupees upto five lakhs of rupees.'
According to Clause 8, when such amount or value exceeds five lakhs of rupees, a court-fee of eight and three-fourth per cent, is to be levied 'on the portion of such amount or value which is in excess of five lakhs of rupees.'
10. It is obvious that the Legislature has used quite a different language in all the clauses falling within the second group, and the difference in the language was deliberately made, as the method of computation of court-fee on Property above one lakh of rupees is quite different from the method of computation of court-fee on property below one lakh of rupees. The three features of the second group as contrasted with the first group may be noted at this stage. The first important point that strikes one is that the maximum limit which is a feature of all the clauses of the first group has been removed.
In all the clauses of the first group, for the purposes of computation of court-fee, the Property, which is the subject-matter of the application for Probate, is to be above a certain value as well as below a certain value, that is, in order to attract a particular clause, it should exceedcertain value and should not exceed certain value. The maximum limit having been removed in all the clauses of the second group, the necessary result of this removal is that, unlike the clauses in the first group, the operation of these clauses has ceased to be exclusive, More than one clause in the second group can, therefore, operate simultaneously.
The number of clauses in the second group which can be applicable would depend upon the value of the property.
11. The second important feature to note in connection with the clauses in the second group; is that the method of taxation under each of the clauses is not on the aggregate or total amount of valuation as in the first group, but only 'on the portion' of the amount or value which falls within a particular clause. The words 'on the portion' did not find a mention in any of the clauses of the first group. The introduction of these words in Clause 4 and in all the subsequent clauses upto Clause 8 would indicate that these methods of computation of court-fee under these clauses is altogether different from that of the clauses an the first group.
For the purposes of computation of court-fee under the clauses in the second group, the court-fee is not to be assessed on one total or aggregate amount as under the clauses in the first group, but on the particular portion which falls under a particular clause. In other words, for the purposes of the clauses of this group, the Legislature has not treated the value of the property for the purposes of court-fee as one aggregate amount, but has divided the entire value into various portions, each portion toeing taxable as laid down in the particular clause under which it falls. The very use of the word 'portion' in each clause would indicate that the amount to be taxed is a larger one, and forms but a part of the remaining amount.
12. The third common feature of this group is that the words 'on such amount or value', which are found against all the clauses in the first group, have been removed from column 3, and showed into column 2 with the qualification relating to portion attached to the same. The intention of the Legislature in doing this was obviously to make it clear that the method of computation of court-fee in this group was not the assessment of court-fee on one total or aggregate amount, taut on the portion or various portions of the entire amount, according as the said portion or portions fell within one or the other clause of the second group.
13. To sum up, it appears that whereas the first three clauses which constitute the first group are mutually exclusive in their operation, the remaining five clauses, that is Clauses 4 to 8, which constitute the second group, are cumulative in their operation.
14. In my opinion, this interpretation of the clauses of the second group would be in consonance with the intention of the Legislature as shown by Section 19-I(i) which lays down that the court-fee should be paid on the entire valuation of the property as made under that section.
15. On behalf of the petitioner, it was argued that the clauses in the first and second group should be uniformly interpreted, i.e. clauses in the second group should be interpreted exclusively like the clauses of the first group. I am unable to agree with this contention. I have pointed out the drastic changes that the Legislature has made In all the clauses after Clause 3. In my opinion, it is not possible to give uniformconstruction to the clauses in the two groups as the language of the clauses in the second group is materially different from the language of the clauses in the first group.
16. On behalf of the applicant, it was argued that under clauses of the second group, the court-fee should be levied only on the portion exceeding the minimum amount as laid down in the various clauses. In the present case, therefore, according to the petitioner, the court-fee would be payable only on an amount of Rs. 9,179/-, under Clause 8, which is the amount in excess of five lakhs of rupees and no court-fee at all would be payable on the remaining five lakhs. The court-fee on this amount of Rs. 9,179/-/-, according to eight and three-fourth per cent, comes to Rs. 803/3/-. I find it difficult to accept this contention.
This would, in my opinion, be against the intention of the Legislature as indicated by Section 19-I(i) mentioned above, namely, to assess the court-fee on the entire valuation of the Property. This interpretation would not only be against the plain intention of the Statute but would also reduce the whole position to an absurdity.
17. Further, it was argued on behalf of the petitioner that the court-fees Act being a fiscal statute, the benefit of the ambiguity should be given to the petitioner. I am of opinion that there is no ambiguity so far as the above interpretation is concerned. If the valuation, of the property exceeds five lakhs of rupees, it is quite clear that Clauses 4, 5, 6, 7 and 8 are all simultaneously applicable to different portions in view of the fact that the maximum limit has been removed and the court-fee in all the clauses of this group has been made leviable on the various portions of the entire amount.
18. Next, it was argued that in the absence of any express provision to the effect that the clauses in the second group should have cumulative effect, they should be applied separately. I am unable to accept this contention also, as, in my opinion, the meaning of the Legislature having been already made clear by the above-mentioned three changes effected in all the clauses of the second group, any such words would, have been only superfluous. Thus, if the property is valued between two to three lakhs, there is nothing to prevent Clause 4 from applying along with Clause 5. Clause 4 will apply on the portion between one to two lakhs, and Clause 5 will apply on the portion between two or three lakhs.
Similarly, if the property is between three to four lakhs in value, there is nothing to prevent both the preceding clauses (viz. Clause 4 as well as 5) from applying along with Clause 6 to various portions falling within them. Similarly, where the property is between four to five lakhs in value, Clauses 4, 5, 6 and 7 will apply simultaneously to various portions. Lastly, where the property exceeds five lakhs in value, all the Preceding clauses of the second group viz. Clauses 4, 8, 6 and 7 will apply to various portions of the total amount.
19. It was further argued that the Court Fees Act should be so interpreted as not to cause any hardship on the subject. This argument again appears to me to be without foundation, as it overlooks the important fact that the same amount is not being taxed twice. It is to be noted that the court-fee is being levied on different portions of one aggregate amount at proportionately enhanced rates as in a slab system. The first (sic) lakh would obviously not be taxable where the (sic) value of the property exceeds five lakhs of rupees.
The second lakh would be taxable underClause 4. The third lakh would be taxable under Clause 5. The fourth lakh would be taxable under Clause 6. The fifth lakh would be taxable under Clause 7 and the amount exceeding five lakhs would be taxable under Clause 8. There can, therefore, be no grievance of any hardship.
20. I am, however, of opinion that, even on an acceptance of the above interpretation which is suggested by the Advocate-General, and which appears to me to be more reasonable that the one which is suggested on behalf of the petitioner, the provisions of Article 11 if the first schedule would be hit by Article 14 of the Constitution. The necessary result of accepting the above interpretation suggested on behalf of the State by the Advocate-General is that the first lakh out of the estimated value of Rs. 5,09,179/- escapes taxation. It cannot fall under Clause 3 of the first group, because Clause 3, as contended by the Advocate-General, is exclusive in application.
It can only apply if the value of the property does not exceed one lakh of rupees. In the present case, it exceeds five lakhs of rupees; hence Clause 3 cannot apply. This would be in accordance with the contention on behalf of the State that all the clauses of the first group are exclusive. Clause 4 cannot apply to the first lakh, because under Clause 4 only the portion, which is in excess of one lakh, is taxable. The result of this interpretation would, therefore, be that whereas a man who claims Probate of a Will in respect of a property worth one lakh of rupees would have to pay a court-fee of Rs. 3,750/-, a man who wants Probate in respect of a Will covering a property of one lakh and one hundred would have to pay only a court-fee of Rs. 5/-.
This would create an obvious discrimination between the two cases. This discrimination is neither based on reason nor has it any logical connection with the object of the Act. The object of the Act, as pointed out by Section 19-I(i) was to lay down a method of progressive taxation according as the value of the property is enhanced. Further, the object of the Act appears to be to tax the value of the entire property with the exception of the property worth over one thousand rupees. It could not be the object of the Act to exempt any property upto a lakh of rupees when its value exceeds one lakh.
21. In State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284: (AIR 1952 SC 75) (A) the conditions for determining when a statute can pass the test of equality before law was laid down by Das, J., in the following words:--
'In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differential which distinguishes those that are grouped together from others and (2) that that differential must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.'
(at pp 334 and 335 (of SCR) : at P. 93 (of AIR).)
In the present case, the classification created as a result of the exemption of the first one lakh in the case of properties which fall under the second group cannot be said to be founded on any intelligible differentia, and cannot therefore, fulfill condition No. 1. Secondly, it has no rational relation to the object which is sought to be achieved by the Act, and cannot, therefore, fulfill condition No. 2. There is no nexus between the basis of classification and the object of the Act. In my opinion, therefore, Clause 4 is hit by Article 14 of the Constitution, and ceases to be a valid piece of legislation after the coming into force of the Constitution.
It is not possible to separate Clause 4 from the remaining clauses of the second group. Each of the five clauses of the second group are knit together into one common scheme. If Clause 4 is removed from that scheme, the foundation of the scheme itself disappears. If Clause 4 is struckdown, then the remaining clauses of the second group cannot remain standing. In my opinion, therefore, all the clauses of the second group fall to the ground as invalid pieces of legislation, having been drawn within the destructive range of Article 14 of the Constitution. I may also add that if all the clauses of the second group are invalidated, their removal from the Court Fees Act will have repercussion on the three clauses of the first group as well.
The result of maintaining the three clauses of the first group and sweeping away the remaining ones would be that whereas properties below one lakh of rupees would be chargeable with court-fee, properties above one lakh of rupeeswould not be chargeable with court-fee at all. This again would create an arbitrary discrimination and would fail to pass the two tests laid down by their Lordships of the Supreme Court in the case referred to above. Article 13 of the constitution lays down that all laws in force in the territory of India immediately before the commencement of the Constitution shall be void in so far as they are inconsistent with the Constitution.
The entire Article 11 of schedule I of the Court Fees Act being thus inconsistent with Article 14 of the Constitution has, therefore, become void after the commencement of the Constitution.
22. There is no other provision of the Court Fees Act on which reliance is placed on behalf of the State. In my opinion, therefore, in the existing state of law, it is not possible to levy any court-fee on this application for probate.
23. I agree with my learned brother that article 11 of Schedule I of the Court-Fees Act infringes Article 14 of the Constitution inasmuch as it divides applications for probate into different clauses for purposes of taxation under the Court-Fees Act on no principle at all. There is no connection whatsoever between the amounts involved in the applications and the court-fees demanded on them with the result that the taxation becomes wholly arbitrary and void under Article 14 of the Constitution. At first Clause (4) becomes void and when it is ignored, the next clause becomes void on similar reasoning.
When the next clause is ignored, Clause (6) becomes void and so on; thus all the Clauses (4)to (8) become void. Clauses (1) to (3) also may become void on a parity of reasoning, but it is unnecessary for me to deal with them, because they do not apply in the present case at all.
24. As regards the other question whether the Clauses (4) to (8) are to be applied cumulatively or alternatively I have very little to add to what I said in my referring order. I am not convinced that the view taken by me there is incorrect. Merely because the clauses can be applied cumulatively it does not follow that they must be applied cumulatively. When two provisions of law can apply either cumulatively or alternatively to a given state of facts, there is no presumption that they are to be applied cumulatively any more than that they are to be applied alternatively.
If the statute does not lay down, that they are to be applied cumulatively, they cannot be applied cumulatively. Even if the Court finds that the intention of the Legislature was to apply them cumulatively but it has not expressed its intention in words capable of being construed to indicate it, it is not for the court to supply the missing words and hold that it has applied them cumulatively. A court can construe or interpret existing words but cannot supply missing words. In the absence of a provision that whatever court-fees are payable under Clauses (4) to (8) must be totalled up and paid by the applicant he cannot be required to pay the total of the court-fees.
There are no words used by the Legislature to describe the exact process involved in the payment of the court-fees according to the interpretation placed on behalf of the State; the court is simply asked to assume their existence, which cannot be done. It was contended that Clauses (4) to (8) tax different portions; they certainly do, but there is nothing to indicate that they tax different portions of one estate. The language used in them is quite consistent with their taxing different portions of different estates. The contention that Clauses (4) to (8) tax different portions of one estate fails when one comes to Clause (4) which does not tax the first lakh.
If Clause (4) does not tax the first lakh, there is no reason why Clause (5) should be interpreted to tax the first two lakhs under Clause (4) and the balance over under Clause (5).
25. As regards the competency of this Bench to dispose of the reference I do not see any substance in the contention of the applicant. It is not necessary that the Chief Justice must specify the Judge to dispose of a reference before it is made; he can specify the Judge on receiving the reference. Even if he has specified a Judge to dispose of references generally, he has the power to specify another Judge to dispose of a particular reference even after the reference has been made; in that event the particular Judge becomes the Judge to whom the reference is to be made.
Naturally if the Chief Justice desires a reference to be disposed of by a Judge other than the Judge authorized generally in this behalf, he can make a special appointment only after receiving the reference. We are informed by the office that our brother Raghubar Dayal was the Judge generally authorized in this behalf by the Chief Justice; but when the Chief Justice ordered the reference to be listed before me, it amounted to his appointing me as the Judge to dispose of it.
When I heard the reference, it was not contended on behalf of the applicant that I had no jurisdiction to dispose of it; what was contended on the other hand was that I should decide it myself and had no power to refer it to a Bench. If the Chief Justice could validly appoint me as the judge to dispose of the reference, he could revise his order, whether at my suggestion or not and appoint a Bench of two Judges to dispose of it. We have, therefore jurisdiction to dispose of the reference.
By The Court:--
26. We hold that the relevant clauses of article 11 of Schedule I of the Court-fees Act are void and that no court-fee is payable on the application for probate.