1. The order of the District Judge was passed before the Court Fees Amendment; Act, 1899, came into operation. The question for determination is, therefore, governed by the Act of 1970. The stamp duty payable on an application for probate is 2 per cent. on the amount or value of the property in respect at which the grant is made. When the amount or value does not exceed Rs. 1,000 no stamp duty is payable. In the present case the deceased's estate consists of property in possession to the value of about Rs. 125 and a chose-in-action, viz., a suit which she instituted before her death in which she claims some Rs. 17,000. In a case like this there is nothing In enable the Court to determine the amount or value of the right which the deceased was seeking to enforce in her suit and we cannot Bay that the petitioner, in assessing the amount or value of the estate at a sum under Rs. 1,000 under-estimated its value.
2. The case of In the goods of Ram Chunder Ghose I.L.R. 24 Calc. 567 was a case in which the liability to pay any Court fee in respect of a debt, the recovery of which was uncertain, was disputed. The case of In the goods of Abdool Aziz I.L.R. 23 Calc. 577 was a decision that where there were no materials upon which the Court could assess the value of a chose-in-action there was nothing to prevent the Court from accepting the valuation of the person applying for probate. It is scarcely necessary to add that the mere fact that an item of property is the subject of litigation does not in itself prevent the value of the property from being assessed for the purposes of stamp duty on an application for probate. The question is one of fact.
3. In a case like this the revenue is protected by Section 19 E of the Court Fees Act.
4. We accordingly direct probate to issue without payment of stamp duty, but we direct the executor (the petitioner) on the termination of the suits referred be in the petition to file in Court a statement showing the result of these suits and to furnish the Government Pleader with a copy of this statement.