1. This is an appeal by the defendant in a suit for recovery of a penalty imposed on her under Section 19E of the Court Pees Act, 1870. The facts material for the determination of the questions of law raised before us are undisputed, and lie in a narrow compass. The appellant applied for Probate of a Will executed by her husband Kailas Chandra Choudhury. Thereupon notice was issued to the Collector of Faridpore under Sub-section 1 of Section 19H of the Court Pees Act. As no reply was received from the Collector, Probate was issued to the petitioner on the 28th August 1900 on payment of Rs. 1,563, the duty payable upon her valuation of the estate. On the 10th December 1908, the Collector, of Faridpore, who had meanwhile communicated with the Collector of Backergunge where some of the properties were situated, held that the value of the estate was Rs. 1,69,128, and not Rs. 78,122 as stated by the petitioner in her application for Probate. He accordingly directed the petitioner to amend the valuation and to explain the cause of under-valuation. Notice was served upon her on the 15th December 1908. On the 2nd January 1909, she presented a petition to the Collector, in which she stated that the valuation as made by her agents and accepted by her in good faith was correct, as the majority of the properties were small shares in various estates and could not fetch large values. She added, however, that she had no desire to litigate the matter and deposited Rs. 1,821, the additional fee payable, on the hypothesis that the valuation of the Collector was correct. On the 16th January 1909, the Collector recommended to the Commissioner that the additional sum might be accepted, and the Probate amended. This was endorsed by the Commissioner and submitted by him to the Board of Revenue for sanction. The Board, however, on the 4th July 1909, directed that double the fee payable, that is Rs. 6,768, be levied as penalty from the petitioner under Section 19E of the Court Fees Act. This order, made without any notice to the petitioner, was communicated to her on the 15th August 1909. On the 11th September 1909, she petitioned to the Board to re-consider the matter, but during the pendency of her application for review, the Collector instituted the present suit on the 11th December 1909 for recovery of Rs. 6,768. On the 16th January 1910, the Board, on review, reduced the penalty to Rs. 3,384. On the 8th August 1910, the plaint was amended and the claim was reduced to that sum. The defendant resisted the claim substantially on three grounds, namely, first, that the suit as framed was not maintainable, secondly, that the penalty had not been imposed in accordance with statutory provisions, and consequently could not be recovered, and thirdly, that even if the penalty was recoverable, no decree could be made against the estate in her hands. The Subordinate Judge overruled these contentions and decreed the suit. Upon appeal that decree has been affirmed by the District Judge. The present appeal was summarily dismissed under Rule 11 of Order XLI of the Civil Procedure Code by Brett and Sharf-ud-din, JJ. The appellant then applied for review of judgment and obtained a Rule. After the retirement of Brett, J., the Rule was made absolute by Sharf-ud-din, J., on the ground that important questions of law were involved in the appeal. The appeal has now come up before us for final disposal, and on behalf of the appellant the three grounds urged in the primary Court in answer to the claim have been reiterated.
2. As regards the first objection, namely, that the suit is not maintainable, we are of opinion that there is no foundation for it. Assuming that the penalty has been rightly imposed, there must be some method for its recovery. A suit for its recovery is not barred either explicitly or impliedly. There is no provision in the law for recovery of the penalty by summary process, as Section 19E is not mentioned in Sub-section 1 of Section 19J. But even if a summary remedy had been provided, it would not follow that the Crown was not entitled to the ordinary remedy by a suit, which is open to all its subjects. In England, where the Crown claims sums due to it by way of penalty or otherwise, the recovery may be had by information: Attorney-General v. Freer (1822) 11 Price 183 : 147 E.R. 441; Bradlaugh v. Clarke (1883) 8 A.C. 354 : 52 L.J.Q.B. 505 : 48 L.T. 681 : 31 W.R. 677 : 47 J.P. 405; Cawthorne v. Campbell (1790) 1 Anst. 205 at p. 214 : 145 E.R. 846. We feel no doubt that unless there is a statutory bar, a suit is maintainable by the Secretary of State for India in Council for recovery of a penalty lawfully imposed.
3. As regards the second objection, namely, that the penalty has been imposed in contravention of the Statute and is consequently not recoverable, the question has been raised whether it is open to the Civil Court to determine the matter. The decision in Manekji v. Secretary of State for India (1896) Bom. P.J. 751 shows that a Civil Court has no jurisdiction to review the decision of a Revenue Authority on the ground that the valuation had been incorrectly made or that the discretion in the imposition of the penalty had been erroneously exercised. But the position is different when the order for imposition of penalty is assailed on the ground that it has not been made in accordance with the Statute. If the action of the Revenue Authority is ultra vires, if he has not followed the procedure prescribed by the Statute which is the source of his authority, there is no enforceable claim which a Civil Court is bound to recognize. We must consequently determine whether the imposition of the penalty in the case before us, was ultra vires.
4. Section 19-I of the Court Fees Act contemplates the pre-payment of duty before an Order for grant of Probate is made: In the goods of Omda Bibi 26 C. 407 : 3 C.W.N. 392. In the case before us, this appears to have been done. A notice was thereupon issued to the Collector under Section 19H to enable him to test the valuation. As no communication was received from him, the Court issued the Probate. Subsequently, the Collector called upon the petitioner to amend the valuation under Sub-section 3 of Section 19H. The applicant for Probate did not accept the valuation made by the Collector. She maintained, on the other hand, that the original valuation made by her was not inadequate, Wt with a view to avoid expense and litigation, she deposited the excess sum demanded. The Board of Revenue thereupon proceeded to impose a penalty on the applicant under Section 19E. In our opinion, Section 19E had no application in the events which had happened. As pointed out in the case of Manekji v. Secretary of State for India (1896) Bom. P.J. 751, Section 19E contemplates an application on the part of the person who has taken out Probate and produces the same to be duly stamped. There was no such application in the present case. The section further contemplates that the estimated value of the estate is less than what the value has afterwards proved to be. In the present case, there was no determination of the valuation by the Probate Court; there was, on the one hand, an estimate by the petitioner, there was on the other hand, an assessment by the Collector which was not accepted as correct by the applicant; indeed, she disputed the correctness of the grounds for the higher assessment. There was consequently no room for the application of Section 19E. If it was intended to take proceedings under Section 19E, as the petitioner disputed the correctness of the assessment by the Collector, the Court should have been moved for an enquiry into the true value of the assets under Section 19H and if the Collector had adopted such a course, it would have been incumbent upon him, as explained in the case of In the goods of Stevenson 6 C.W.N. 898, to make out al case for enquiry upon definite facts. No such step was, however, taken, possibly for the reason that the Collector was of opinion that no penalty should be imposed. But whatever the reason might be, it is plain that there was no compliance with the statutory requirements and that the contingency contemplated in Section 19E had not arisen. Nor was action taken under Section 19G, which is moulded on Section 43 of 55 Geo. III, Ch. 184, and Section 122 of 56 Geo. III, Ch. 56. We may here point out the reason why Section 19J, which prescribes the mode of recovery of penalties, makes no mention of Section 19E. In a case where that section is properly applicable, the petitioner is entirely in the hands of the chief controlling Revenue Authority, who is at liberty to refuse to stamp the Probate till the penalty has been paid; no occasion can consequently arise for recovery, by summary process or by suit, of the penalty imposed under Section 19E. We are of opinion that the action of the Board of Revenue was entirely misconceived and that the imposition of the penalty under Section 19E was ultra vires. There is thus no legal foundation for the claim.
5. As regards the third objection, namely, that the penalty is personal and is not recoverable from the estate, we need only say that it raises a question of first impression and of some nicety, which need not be determined in view of our decision on the second objection.
6. The result is that this appeal is allowed, the decree of the District Judge reversed and the suit dismissed with costs in all the Courts.