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Rana Rudra Pratap Jung Bahadur Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 1 of 1975
Judge
Reported inAIR1975All362
ActsCourt-fees Act, 1870 - Sections 19E and 19H; Uttar Pradesh Court-fees (Amendment) Act
AppellantRana Rudra Pratap Jung Bahadur
RespondentThe State of U.P. and ors.
Appellant AdvocateB.C. Dey, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
.....letter of probate or letter of administration has been issued may not produce the same before the chief controlling revenue authority - he has to make an application to that effect. - - the contention appears well founded. where any person on applying for probate or letters of administration has estimated the estate of the deceased to be of less value than the same has afterwards proved to be, and has in consequence paid too low a court-fee thereon, the chief controlling revenue authority for the local area in which the probate or letters has or have been granted may, on the value of the estate of the deceased being verified by affidavit or affirmation, cause the probate or letters of administration to be duly stamped on payment of the full court-fee which ought to have been..........19h require that, if the application is filed in the high court, notice shall be given to the chief controlling revenue authority and, if it is filed before any other court, notice shall be given to the collector of the district. subsection (3) of section 19h provides that, if the collector, after hearing the petitioner in the application for probate, is of opinion that the value of the property in the application for probate has been under estimated, he may require the petitioner to amend the valuation. sub-section (4) then provides :'(4) if the petitioner does not amend the valuation to the satisfaction of the collector, the collector may move the court, before which the application for probate or letters of administration was made, to hold an inquiry into the true value of the.....
Judgment:

C.C. Mathur, J.

1. The appellant applied to this Court for the grant of a probate of a will left by his father. The probate was granted on May 4, 1961. The appellant paid a court-fee of Rs. 5,665.20 before the probate was granted. An order dated August 23, 1971, was received by the general attorney of the appellant from the Board of Revenue U. P. Allahabad, demanding payment of a deficiency of Rs. 3.952.50 in the court-fee in the probate case and directing that an application, a duly attested affidavit and the original probate 'be sent to this office to enable us to grant a certificate under Section 19E of the Court-fees Act.' The appellant thereupon filed a writ petition in this Court, challenging the order dated August 23, 1971. The writ petition was dismissed by the learned Single Judge. Hence this appeal.

2. Sri B. C. Dey learned counsel for the appellant, has contended that the order of the Board of Revenue, demanding additional court-fee in the probate matter, is totally without jurisdiction and is illegal. The contention appears well founded. Court-fee on an application for probate is payable under Item 11 of Schedule I to the Court-fees Act. After an application for probate is filed. Sub-sections (1) and (2) of Section 19H require that, if the application is filed in the High Court, notice shall be given to the Chief Controlling Revenue Authority and, if it is filed before any other court, notice shall be given to the Collector of the district. Subsection (3) of Section 19H provides that, if the collector, after hearing the petitioner in the application for probate, is of opinion that the value of the property in the application for probate has been under estimated, he may require the petitioner to amend the valuation. Sub-section (4) then provides :

'(4) If the petitioner does not amend the valuation to the satisfaction of the Collector, the Collector may move the Court, before which the application for probate or letters of administration was made, to hold an inquiry into the true value of the property :

Provided that no such motion shall be made after the expiration of one year from the date of the exhibition of the inventory required by Section 317 of the Indian Succession Act.'

Sub-section (5) required the Court, when so moved, by the Collector, to hold an inquiry and to record a finding as to the true value of the property of the deceased. Sub-section (6) lays down the procedure for the inquiry. Sub-section (7) is in these words :--

'(7) The finding of the Court recorded under Sub-section (5) shall be final; but shall not bar the entertainment and disposal by the Chief Controlling Revenue Authority of any application under Section 19E.'

3. The scheme of Section 19H thus is that, after notices have been sent to the Collector or to the Chief Controlling Revenue Authority, the Collector may examine the valuation shown in the application for probate and, if he is of opinion that the value has been under estimated, he may require the petitioner to make the necessary amendment in the petition. If the amendment is not made, the Collector may move the Court, before which the petition is pending, and that Court will record a finding about the value of the property. The Collector can move the Court only within one year from the date of the exhibition of the inventory. After the ex-piry of this period, he cannot exercise this right. The finding of the Court regarding the value of the property is final. This finality does not bar the entertainment of an application under Section 19E.

4. In the present case, even though, admittedly, a notice under Section 19-H(2) was given to the Chief Controlling Revenue Authority, the Collector did not move the High Court under Sub-section (4) within the stipulated period of one year or at any time thereafter. The right of the Collector to move the Court under Sub-section (4) is now barred. The learned Standing Counsel has sought to justify the impugned order under Section 19E. If the order can be justified under Section 19E, then it is immaterial whether the Collector did or did not move this Court under Sub-section (4) of Section 19H.

5. We have then to see whether the impugned order could be passed under Section 19E. This section makes provision for cases where too low a court-fee has been paid on probates. Section 19E is in these terms :--

'19-E. Where any person on applying for probate or letters of administration has estimated the estate of the deceased to be of less value than the same has afterwards proved to be, and has in consequence paid too low a Court-fee thereon, the Chief Controlling Revenue Authority for the local area in which the probate or letters has or have been granted may, on the value of the estate of the deceased being verified by affidavit or affirmation, cause the probate or letters of administration to be duly stamped on payment of the full court-fee which ought to have been originally paid thereon in respect of such value and of the further penalty, if the probate or letters is or are produced within one year from the date of grant, of five times, or, if it or they is or are produced after one year from such date, of twenty times, such proper court-fee without any deduction of the court-fee originally paid on such probate or letters :

Provided that if the application be made within six months after the ascertainment of the true value of the estate and the discovery that too low a court-fee was at first paid on the probate or letters, and if the said Authority is satisfied that such fee was paid in consequences of a mistake or of its not being known at the time that some particular part of the estate belonged to the deceased, and without any intention of fraud or to delay the payment of the proper court-fee, the said Authority may remit the said penalty, and cause the probate or letters to be duly stamped on payment only of the sum wanting to make up the fee which should have been at first paid thereon.'

6. Sri Dey has urged that proceedings under Section 19E can be started only upon an application of the person who has filed the petition for probate and these proceedings cannot be initiated by the Chief Con-trolling Revenue Authority itself. He has relied upon the decision of a Division Bench of the Calcutta High Court in Nikunja Rani Chowdhurani v. Secretary of State AIR 1916 Cal 797. It was held by the learned Judges-

'Section 19E contemplates an application on the part of the person who has taken out probate and produces the same to be duly stamped.'

With respect we are in agreement with the learned Judges. Sub-section (7) of Section 19H provides that the finding recorded by the Court under Sub-section (5) shall not bar the entertainment and disposal by the Chief Controlling Revenue Authority of any application under Section 19H. This clearly indicates that the Legislature contemplated that the proceedings under Section 19H were to start on an application. The language of Section 19H also indicates the same. This section empowers the Chief Controlling Revenue Authority to act' on the value of the estate of the deceased being varified by affidavit or affirmation.' The verification by affidavit or affirmation can only be by the person who applied for the probate. The power of the Authority is to 'cause the probate or letters of administration to be duly stamped on payment of the full court-fee which ought to have been originally paid thereon.' This power can only be exercised if the probate or letters of administration is or are produced by the person to whom it or they has or have been granted before the Chief Controlling Revenue Authority. Such a person alone can produce it after making an application. The section also provides for imposition of penalty for late production of the probate or letters of administration. This section does not provide at all for calling upon any person to produce the probate or letters of administration before the Chief Controlling Revenue Authority. This clearly shows that the section applies only when the probate or letters of administration is or are produced voluntarily by the party to whom it or they have been granted. The proviso to the section empowers the Authority to waive the penalty if good cause is shown. This also indicates that the section applies when the probate or letters of administration is or are produced by the person to whom it or they has or have been granted. If the person, to whom the probate or letters of administration has or have been granted, does not make any application under Section 19H and does not produce the probate or letters of administration before the Chief Controlling Revenue Authority, none of the actions contemplated by this section can at all be taken by the Authority. In our opinion, Section 19H comes into operation only when the person, to whom the probate or letters of administration has or have been granted, discovers that, by mistake or ignorance, he had not correctly evaluated the estate and had not paid proper court-fees and he then moves the Chief Controlling Revenue Authority to rectify the defect by accepting the full proper court-fee and bycausing the probate or letters of administration to be duly stamped. No action under this section can be taken by the Authority in the absence of any such application. Since, in the present case, no application was made by the appellant for action under Section 19H, the Chief Controlling Revenue Authority had no power or jurisdiction to pass any order, demanding additional court-fees, or directing the appellant to produce the probate. The action taken by the respondents cannot be justified under Section 19H.

7. The appeal is accordingly allowed, the judgment of the learned Single Judge is set aside, the writ petition filed by the appellant is allowed, the order of the Board of Revenue dated August 23, 1971, is quashed and the respondents are restrained from demanding and recovering the sum of Rupees 3,952.50 on account of arrears of court-fees in respect of the probate granted to the appellant. The appellant is entitled to his costs of this appeal as well as of the writ petition.


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