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J.M. Rodrigues Vs. A.M. Mathias and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1911)21MLJ481
AppellantJ.M. Rodrigues
RespondentA.M. Mathias and anr.
Cases Referred and Upadhya Thakur v. Pershdi Singh I.L.R.
Excerpt:
- .....proper valuation was found to be rs. 26.547-14-6. the counter-petitioner has now appealed and has paid stamp duty ad valorem on. rs. 14,031-9-2. it is contended by the petitioner that stamp duty should be paid on rs. 26, 547-14-6. the counter petitioner replies that he need not have paid more than rs. 2 stamp duty as the appeal falls under article 1 or article 11, schedule ii, of the court-fees act, and that in any case he is not bound to pay on more than the petitioner's valuation. we do not think article 11 of schedule ii applies, for the order appealed against undoubtedly has the force of a decree as it decides the representative title and to this extent we agree with the decisions of this court in appeal no, 94 of 1900 and appeal 54 of 1900. in support of the contention that article.....
Judgment:

1. The petitioners in their Application for probate valued the assets at Rs. 14,031-9-2. The counter-petitioner objected that their valuation was too low and the proper valuation was found to be Rs. 26.547-14-6. The counter-petitioner has now appealed and has paid stamp duty ad valorem on. Rs. 14,031-9-2. It is contended by the petitioner that stamp duty should be paid on Rs. 26, 547-14-6. The counter petitioner replies that he need not have paid more than Rs. 2 stamp duty as the appeal falls under Article 1 or Article 11, Schedule II, of the Court-Fees Act, and that in any case he is not bound to pay on more than the petitioner's valuation. We do not think Article 11 of Schedule II applies, for the order appealed against undoubtedly has the force of a decree as it decides the representative title and to this extent we agree with the decisions of this Court in Appeal No, 94 of 1900 and Appeal 54 of 1900. In support of the contention that Article 1 of Schedule II applies, we are referred to the case of Jamsang Devabhai v. Goyabhai Kikhabhai I.L.R. (1891) B. 408 and Upadhya Thakur v. Pershdi Singh I.L.R. (1896) C. 723. These decisions undoubtedly support the contention. The question of the applicability of Article 1 of Schedule II was not considered in Appeals Nos. 54 and 94 of 1900 already referred to, and we are prepared to follow the Calcutta and Bombay decisions. We also think that on principle an ad valorem stamp should not be levied in such cases. The only title which the order appealed against gives to the petitioner is the right to administer the estate and if he has to sue to recover the estate he will have to pay stamp duty on its value. We do not think stamp duty on the value of the estate should be twice exacted. On the merits, taking the evidence at the highest, there is no evidence that the witnesses signed in the presence of the testator as required by Section 50 of the Succession Act. The will is therefore not proved and the order of the District Judge is set aside. No costs will be allowed throughout.


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