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Trambaklal Dayalal Kothari Vs. L.K. Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3633 (W) of 1974
Judge
Reported inAIR1982Cal217
ActsCourt-fees Act, 1870 - Section 19H(3)
AppellantTrambaklal Dayalal Kothari
RespondentL.K. Dey and ors.
Appellant AdvocateShakti Pada Chatterjee, Adv.
Respondent AdvocateAshok Kumar Sengupta and ;Tapan Kumar Sengupta, Advs.
Cases ReferredGauri Nath Shastri v. State of West Bengal
Excerpt:
- .....valuation has been mentioned in paragraph 2 of the petition. it has further been stated that the probate duty of rs. 11,299/- was paid to the court, at the time of grant of probate, on due calculation, and the high court had accepted the valuations as made, to be correct. 3. thereafter, the respondent probate deputy collector, issued letters informing that enquiries into the matter of payment of probate duty, would be initiated and as such, the said officer wanted to see the original probate estate duty assessment papers and balance sheet, apart from other records. it is the case of the petitioner that the original probate and audited balance sheet for the relevant periods, were shown and on or about 17th july, 1973, it was informed that the estate duty assessment had not been.....
Judgment:
ORDER

Manashnath Roy, J.

1. In this Rule, which was obtained with a corresponding interim order On 21st June, 1974, the petitioner, Trambaklal Dayalal Kothari, has impeached certain orders made by the Probate Deputy Collector, being Respondent No, 1, and the particulars whereof would be available from the facts stated hereinafter.

2. One Umedlal Dayalal Kothari also known as Umedlal D. Kothari died at premises No. 18, Priya Nath Mullick Road, Bhowanipur at Calcutta on 19th June, 1963 and the petitioner in this Rule applied for probate of the last Will and testament of the said deceased in this Court and it has been stated that such probate was granted by this Court in its Original Side. Such probate order was made on 13th Aug. 1964. It was the case of the petitioner that at the time of making the application for the grant of probate as mentioned above, on or about 9th Sept. 1973, the petitioner, who incidentally was a brother of the deceased along with one Himatlal Umedlal Kothari, the son of the deceased, affirmed and filed the Affidavit of Assets showing the value of the estate as left at Rs. 2,57,097.25 paise. The said valuation has been mentioned in paragraph 2 of the petition. It has further been stated that the probate Duty of Rs. 11,299/- was paid to the Court, at the time of grant of Probate, on due calculation, and the High Court had accepted the valuations as made, to be correct.

3. Thereafter, the Respondent Probate Deputy Collector, issued letters informing that enquiries into the matter of payment of Probate Duty, would be initiated and as such, the said officer wanted to see the original Probate Estate Duty Assessment papers and balance sheet, apart from other records. It is the case of the petitioner that the original Probate and audited balance sheet for the relevant periods, were shown and on or about 17th July, 1973, it was informed that the estate duty assessment had not been completed and as such, the same should not be filed. It has been alleged now, that in spite of the aforesaid facts, the officer concerned ex parte assessed the valuation of the estate, in terms of the notice dated 16th Feb. 1973 and increased the valuation of the estate by Rs. 240,980/- (provisional) and asked the petitioner to amend the valuation and also to pay Rs. 14,735.15 paise. It has of course been stated that the above notice was cancelled and a fresh notice dated 15th Jan. 1974, was issued, whereby the petitioner was asked to amend the valuation by raising the sum of Rs. 2,40,980/- and to pay a sum of Rs. 14,735.15 paise, on account of additional stamp duty in terms of Section 19-H(3) of the Court-fees Act, as amended and also to deposit Rs. 2,473.50 paise by way of penalty under Section 19G of the said Act.

4. Section 19-H(3) lays down that the Collector within the local limits of whose revenue jurisdiction the property of the deceased or any part thereof is, may at any time inspect or cause to be inspected, and take or cause to be taken copies of the record of any case in which application for probate or letters of administration has been made, and if, on such inspection or otherwise, he is of opinion that the petitioner has. under-estimated the value of the property of the deceased, the Collector may, if he thinks fit, require the attendance of the petitioner (either in person or by agent) and take evidence and inquire into the matter in such manner as he may think fit, and, if he is still of opinion that the value of the property has been under-estimated, may require the petitioner to amend the valuation. Section 19G postulates that where too a court-fee has been paid on any pro-bate or letters of administration in consequence of any mistake, or of its not being known at the time that some particular part of that estate belonging to the deceased, if any executor or administrator acting under such probate or letters, does not, within six months after the discovery of the mistake or any effects not known at the time to have belonged to the deceased, apply to the said authority and pay what is wanting to make up the court-fee which ought to have been paid at first on such probate or letters, he shall forfeit the sum of one thousand rupees and also a further sum at the rate of ten rupees per cent on the amount of the sum wanting to make up the proper court-fee.

5. It has been contended by the petitioner that the officer concerned, had no power in law, to ask him to amend the valuation and the notice in question was illegal, inoperative, without jurisdiction and bad in law. In fact, it has been stated that an objection to the notice, by a letter was filed and having no response to the said letter and on receipt of the repeated reminders from the Probate Deputy Collector concerned, for the sums as mentioned above, failing which steps for realisation would be taken, another objection by the petitioner, through his lawyer was filed on or about 23rd Feb. 1974, challenging the order as passed or made by the Probate Deputy Collector, the particulars whereof have been mentioned hereinbefore. This letter, it has also been stated, was not appropriately replied to, and on such, the learned lawyer of the petitioner, met the probate Deputy Collector concerned on diverse dates, when it has been stated that he was assured that due intimation would be sent. It has been stated that even in spite of the above fact, the officer concerned, by his letter of 19th Apr. 1974, again asked for the payment. It is the case of the petitioner that having received further reminders for the payment of sums as mentioned above, his lawyer, saw the officer concerned on 4th June, 1974, when also, he was informed that as no notice informing the date of hearing of the concerned objection petition has been received by the petitioner or his Lawyer, the said objection petition has been impliedly rejected. As such, the petitioner has stated, that his learned Lawyer wrote another letter to the officer concerned, for necessary redress of his grievances. It has been categorically claimed by the petitioner that in making the ex parte rejection of the petition or in not considering the objection duly, the authority concerned, acted without jurisdiction, illegally, unlawfully and erroneously, apart from being in violation of principles of natural justice.

6. There was an application dated 28th Feb. 1977, for continuation of the interim order as made, in terms of the provision of Section 58 (3) of the Constitution (42nd Amendment) Act, 1976 and such application was allowed on 14th Sept. 1977, While allowing such application, directions were given for filing of affidavit in the main Rule. Even in spite of such directions, duly given, no affidavit-in-opposition has been filed in this proceeding, Mr. Sengupta, appearing for the answering respondents, produced the records and stated that since his clients had not filed the necessary affidavit-in-opposition in time, he will put forward his argument on the basis of the records.

7. There is no doubt the issue of the probate by this Court in its Ordinary Original jurisdiction. The Will of the executor as such, was probated on 13th Aug. 1964 and in 1971, the notice for necessary valuation was issued and in 1974, the ex parte order, as alleged was made, increasing the valuation. The order, making or directing the payment to be made, which the petitioner has claimed to be ex parte one, was dated 15th Jan. 1974 and the same has been annexed as Annexure-B to the petition. The whole question in the instant case would be and that too, on the basis of the pleadings, as filed and the argument as advanced, whether the Probate Deputy Collector, was required to give any notice and hear the petitioner, before making valuation of the property.

8. In fact, Mr. Chatterjee, appearing in support of the Rule, claimed that the respondent, Probate Deputy Collector, before coming to his conclusion regarding the valuation of the enhancement of the same should have given the petitioner, an opportunity of being heard. In support of such submissions, Mr. Chatterjee referred to the determinations in the case of Gauri Nath Shastri v. State of West Bengal, (1975) 79 Cal WN 961. In that case, a point arose as to whether under Section 19A of the Court-fees Act, 1870, it was the duty of the Collector, to give notice and hear the petitioner for probate, before making valuation of property and the effect of a threat by the Collector concerned, to impose penalty in case of failure to pay deficit of stamp duty, was also concerned. In that case, it has been observed that Section 31(3) of the West Bengal Court-fees Act, 1970 corresponding to Section 19-H(3) of the Court-fees Act, 1870, cast a duty on the Collector, to give an opportunity to the petitioner for probate, to produce evidence and be heard, before the Collector can require the petitioner to amend the valuation made by him. It has further been observed that Section 31(3) of the West Bengal Court-fees Act, 1970 contemplates three well defiend stages. First, after the Collector has been served with a notice of an application for probate by the Court in which the application is made, it is encumbent upon him to hold an enquiry by inspection or otherwise of the property and records in the said application. If on the materials examined by him, the Collector forms the opinion that the petitioner has underestimated the value of the property of the deceased, then the second stage is reached : he must then require the attendance of the petitioner and enquire into the matter, At this stage, there are two portions, one, as to the manner of the inquiry, which is left to the discretion of the Collector, but a duty is cast upon him to hold an enquiry after giving notice to the petitioner, then, the third stage is that, if after such hearing and enquiry or giving notice to the petitioner, the Collector is still of opinion that the valuation of the property has been underestimated, he must require the petitioner, to amend the valuation to the satisfaction of the Collector. If the petitioner fails to amend the valuation as required by the Collector, the Collector must, under Section 31(4), move the Court within the prescribed time, to hold an enquiry into the true value of the property, there-after, the Court should, under Section 31, hold an enquiry as to the true value of the property and the Collector is party to the said application. It has also been observed that Section 31 (6) and (7) of the Act lay down the procedure and finality of the decision and finding of the Court.

9. These apart, in the case as cited, it has been laid down, that a complete procedure for the determinations of the true value of the property, in respect of which an application for probate is made, has been laid down under Section 31 and a duty is cast upon the Collector to hear the petitioner, who is charged with under valuation. It has also been observed that it is no part of the duty of the Collector, to assess the true valuation of the property and ask the petitioner to pay the duty on such valuation and impose penalty on the failure of the petitioner to pay the same. It is only after the true value of the property is determined by the Court, on the application of the Collector and the failure of the petitioner, to pay the deficit stamp duty on such valuation, that a penalty can be imposed under Section 33.

10. As stated hereinbefore, the probatewas granted by this Court in anotherjurisdiction and at that time, no exception regarding valuation was raised ortaken by the Probate Deputy Collector.Such authority has certainly, the right tosee that revenue does not suffer by anymachination of a claimant and as such,such authority, certainly has the rightto initiate and enquire into the valuationand to arrive at a conclusion, as to whether proper valuation has been made orthere has been under-valuation of theproperty of the deceased. But, beforesuch decision is arrived at, not only, interms of the determinations of this Courtas mentioned above, but also in terms atthe intrinsic requirements of the statute,the Probate Deputy Collector, in the instant case, was required to hear the petitioner on due opportunities being given,so that, he could have satisfied that thevaluation as made, was due and proper,Such steps not having admittedly beentaken in this case, the Rule in my view,should succeed. As such, the Rule ismade absolute. There will be no order asto costs.

11. This will not now prejudice the respondents concerned, to make appropriate valuation of the property of the deceased and to come to a definite conclusion about the valuation of the same, after duly hearing the petitioner and opportunities to him, to establish his case.


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