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V. Ramaswami Aiyangar and anr. Vs. A.R.S.M.S. Sundaresan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 598 of 1947
Judge
Reported inAIR1952Mad25; (1951)2MLJ523
ActsCourt-fees Act, 1870 - Schedule - Article 11; Succession Act, 1925 - Sections 275 and 276
AppellantV. Ramaswami Aiyangar and anr.
RespondentA.R.S.M.S. Sundaresan Chettiar and ors.
Appellant AdvocateV. Ramaswami Iyer and ;V. Meenakshisundaram, Advs.
Respondent AdvocateR. Kesava Iyengar and ;K. Parasaram, Advs.
DispositionAppeal allowed
Excerpt:
- .....settle the matter between themselves it cannot be said that they can be compelled to paystamp duty for engrossing the final decree on stamppaper. in our view the order of the learned subordinate judge directing that the receivers will de-posit into court necessary amount for the issue ofa probate on the quantum of the legacies involvedunder the will cannot be maintained. we therefore set aside the order of the lower court anddirect that it is unnecessary to deposit the stampsfor issuing the probate. there will be no order asto costs in this appeal.
Judgment:

Govinda Menon, J.

1. when once it is con-ceded that with respect to Wills executes by Hindu outside the City of Madras it is unnecessary to take out a probate in order that the under the will should be effective, the question Will arise as to whether any order by a Court directing the issue of a probate will necessarily involve compulsory deposit of stamps necessary for the issue of the probate. It is conceded that no probate has been issued on the strength of the will which has been declared valid by the High Court to the extent of the personal properties of the testator and what the Court has done is to direct, that the executors should pay as much of the Court-fee as is necessary on the amount of the legaciesbequeathed under the Will. We are not satisfiedthat the mere fact that the Court has directed theissue of a probate would necessarily involve theduty on the party to deposit the stamps. It maybe that the legatees may settle the matter outsidewithout getting a probate. To take an analogouscase, supposing there is a decree for partitionamong the members of a joint family and if afterthe preliminary decree is passed and before thefinal decree is engrossed on stamp papers, theparties settle the matter between themselves it cannot be said that they can be compelled to paystamp duty for engrossing the final decree on stamppaper. In our view the order of the learned Subordinate Judge directing that the receivers will de-posit into Court necessary amount for the issue ofa probate on the quantum of the legacies involvedunder the will cannot be maintained. We therefore set aside the order of the lower Court anddirect that it is unnecessary to deposit the stampsfor issuing the probate. There will be no order asto costs in this appeal.


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