1. The facts of this case may shortly be summarised as follows: On the 12th of April, 1920, the appellant applied for probate of the Will of one Braja Nath Pal Choudhuri, deceased. The application was registered on the 14th April, 1920, and intimation thereof was sent to the Collector. On the 3rd July, 1920, the learned District Judge ordered that the probate of the Will was to be granted to the applicant. On the 15th September, 1921, the Collector's valuation was received in the Office of the District Judge. The value according to that valuation was Rs. 41,053-8-0, being much in excess of the value stated in the application filed by the applicant. The applicant not having amended the valuation to the satisfaction of the Collector, the Collector, on the 5th December, 1921 filed a petition in the Court of the learned District Judge under the provisions of Section 19-H, Clause (4) of the Court-Fees Act asking that an enquiry might be held into the question of the true value of the properties. The learned District Judge on the same date made an order purporting to be under Clause (5) of Section 19-H, of the Court-Fees Act directing an enquiry to be held by the learned Munsiff of Ranaghat. When the enquiry was being held by the learned Munsiff, it appears that on the 14th February, 1922, an application was filed before him by the applicant alleging that certain properties which had been included in the Schedule attached to his original application were properties which ho was not churning under the Will but were properties covered by a deed of gift and he prayed that these properties might be excluded from the Schedule for the purpose of the valuation that he was going to make. There was a further prayer worded rather curiously to the effect that a fresh valuation might be made in respect of certain properties which were being mentioned in a separate list which the appellant was filing before the learned Munsiff inasmuch as he wanted the probate to be in respect of those properties only. The learned Munsiff rejected that application. A further application to the same effect, made on the 20th February, 1922, was also rejected by the learned Munsiff. The learned Munsiff was of opinion that inasmuch as he had been asked by the terms of the order by which the enquiry had been directed to make a valuation in respect of the properties which were mentioned in the Schedule attached to the original application ho had no jurisdiction to go into the question of valuation of the properties mentioned in the fresh list filed before him, that is, to the remaining properties after excluding from the list of properties originally mentioned in the Schedule which were alleged to be covered by the deed of gift. He also found that it was not possible to identify the properties in the aforesaid two lists. In this view of the matter, he submitted a report which came in the usual course before the learned District Judge on the 21st April, 1922.
2. It appears that it was argued before the learned District Judge on that day that, inasmuch as those properties which were being claimed as having been declared to be debutter or trust properties in a suit between the applicant and his brother, were properties which had been wrongly included in the Schedule attached to the original application the valuation of the properties left by the deceased must be reduced by excluding the value of those properties. The learned District Judge thereupon passed the following order:
The petitioner, on the strength of a decree to which Government is not a party and which was made while the present matter was pending, claims exemption for the value of that portion of the estate which was there declared to be debutter or trust property. The Government Pleader contends that this decree cannot now be taken notice of, and he relies on the doctrine of lis pendens. This contention appears to be correct and is allowed. The petitioner will pay stamp duty on the total net valuation found above by the 17th May on which date the probate must be produced.
3. As against this order the present appeal has been filed by the applicant. An objection has been taken on behalf of the respondent to the effect that no appeal lies against this order, inasmuch as it is not an order passed under any of the provisions of the Probate and Administration Act and under Section 86 of that Act an appeal only lies from such orders as are passed by the District Judge or District Delegate by virtue of the powers conferred on him by that Act. Now, it appears to us that the order was passed by the learned District Judge under the provisions of Section 19-H of the Court- Fees Act. The section clearly lays down the procedure which is to be followed when an application is made by the Collector on the refusal of the applicant for a probate to amend the valuation to his satisfaction and it lays down that if such an application is presented before the District Judge on behalf of the Collector asking that an enquiry may be held into the true value of the property the Court shall hold or cause to be held an enquiry accordingly and shall record a finding as to the true value, as near as may be, at which the property of the deceased should have been estimated. It further says that the finding of the Court recorded under Sub-section (5) shall be final. Now, the learned District Judge, on receipt of the report from the learned Munsiff, recorded the finding as quoted above under the provisions of Sub-section (5) of Section 19-H of the Court-Fees Act; and by Sub-section (7) of that section his finding is final. No appeal lies from this finding, and therefore, the objection of the respondent as to the maintainability of the appeal must succeed and the appeal must fail.
4. We have been asked to treat the memorandum of appeal filed in this case as an application for the exercise of our powers in revision under Section 115, C. P.C. It appears to me that the learned Munsiff who was asked to hold the enquiry with regard to this matter was of opinion that by the terms of the order under which he was holding the enquiry he had no jurisdiction to go into the question as to whether the properties were debutter or trust properties or not. It appears to me on the plain words of Section 19-H, of the Court-Fees Act that be was to ascertain the value of the property of the deceased for the purpose of determining the stamp-duty. Now, if those properties were, as a matter of fact, debutter or trust properties and were not properties which the applicant was claiming under the Will, the Munsiff, in order to make a valuation of the property of the deceased, would be bound to go into that question; and it would be obligatory upon him to enquire whether these properties were debutter properties or not. The learned Munsiff seems to have acted upon an erroneous view of the law and to have refused to exercise a jurisdiction which undoubtedly he had when he was proceeding under the provisions of Sub-section (5) of Section 19-H.
5. When the matter came before the learned District Judge he, too, does not appear to have gone into the question at all. He refrained from going into the question upon the ground suggested by the Government Pleader before him, that the decree which was produced as showing that the properties were as a matter of fact debutter could not be taken notice of by him upon the doctrine of lis pendens. Now speaking for myself, I have not been able to understand how the doctrine of lis pendens can be said to apply to the present case. The litigation in which that decree had been passed had come to an end; the decree no doubt was passed while the present proceedings were pending, and the Secretary of State could not in any sense be said to be bound by it: but the doctrine of lis pendens has no application at all. The decree Was a piece of evidence which in the absence of facts and circumstances showing that it was fraudulent or collusive, would show that the applicant was not claiming the properties under the Will. The matter, therefore, was one which deserved consideration and, in any event, the learned District Judge was bound to go into the matter and come to a decision as to whether those properties should or should not be treated as being property of the deceased within the meaning of Section 19-H of the Court-Fees Act. As I have said he, too, has not gone into the question and in that respect I think, he has failed to exercise a jurisdiction which was vested in him by law.
6. In this view of the matter, I would treat the memorandum of appeal as an application under Section 115, Civil Procedure Code and would set aside the order passed by the learned District Judge on the 21st April 1922, and remit the matter to him for a further consideration of the question involved.
7. In this case no order is made as to costs.
8. The petitioner has paid only Rs. 5 Court-fee on his memorandum of appeal. But as it has been held that the memorandum of appeal is to be treated as an application for revision a Court-fee of Rs. 15 is payable. The petitioner is allowed one week's time to pay the deficit Court-fee of Rs. 5.
9. I agree.