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IN THE MATTER OF VEERA JIWATRAM CHUGANI V/S NONE, decided on Monday, September 4, 1978.
[ In the High Court of Andhra Pradesh, Original Petn. No. 1 of 1978. ] 04/09/1978
Judge(s) : RAMACHANDRA RAO
Advocate(s) : M. Jagannadha Rao, M. Krishna Mohana Rao. A. Rangacharyulu, Amicus Curiae.
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  "1979 AIR (AP) 144"  ==   "1979 (1) Andhwr 97"  ==   "1978 (2) APLJ 265"  ==   ""  







    Ramachandra Rao J.1. In this petition the question that arises is the payment of proper court-fee on the value of the amount mentioned in the schedule attached to the letters of administration granted to the petitioner. The learned counsel for the petitioner contended that the petitioner need not pay court-fee on the assets of the deceased mentioned in Schedule B which are outside India. The assets mentioned in Schedule B are as follows :Estate to be recovered and be administered :1. Amount of $ 14 583-53 in Saving Account No. 3440649544 in the First National City Bank New York Standing to the credit of the petitioner's husband the late Jiwatram Mulchand Chugani.2. Amount of $ 7.85 in the account of the petitioner's husband the late Jiwatram Mulchand Chugani in the Banque National de Paris Ltd. Knights Bridge Branch 60 Brompton Road S.W. 3 London.2. I requested Sri A. Rangacharyulu to assist me as Amicus Curiae and he has investigated into the matter and placed before me several rulings and other material having hearing on this question.3. Sri M. Jagannadha Rao the learned counsel for the petitioner submits that though letters of administration has been granted for the entire assets both within anal outside India Court-fee need he paid only on the assets in India and not on the assets situated outside India.4. Under Section 53 of the Andhra Court-fees and Suits Valuation Act 1956 the fee chargeable for the grant of probate or letters of administration shall be calculated at the rate or rates specified in Article 6 of Schedule I. Article 6 of Schedule I provides for payment of court-fee at different rates depending upon the value in respect of which the amount of probate or letters of administration is made. It is well settled that Court-fee is not a tax but a fee. (Vide Govt. of Madras v. Zenith Lamps AIR 1973 Supreme Court 724.)5. It is also clear that probate or letters of administration must be applied for for the entire will or estate as the case may be unless there are any facts justifying an exception. (Vide Goverdhan Lal v. Kamalabai Govardhan Lal (1970) 2 Andh WR 62 : (AIR 1970) Andh Pra 109).6. In the Goods of Gladstone (1875) ILR 1 Cal 168 the testator died in England leaving a will in respect of the assets which were in Calcutta Rangoon and India and he appointed two executors one in England and one in India. The executor in England paid duty in respect of the entire assets in England and India and the executor in India claimed exemption from probate duty in respect of the properties in India. But this contention was rejected and it was held that he was not entitled to the exemption. This case does not relate to the question as to whether duty was payable on the assets situate outside India.7. In the Goods of Murch (1879) ILR 4 Cal 725 the testator died at Plymouth in England and his widow as the sole executrix proved the will in England and also in the High Court at Calcutta and she paid probate duty on the estate in England and ad valorem fee under the Court-fees Act VII of 1870 on the estate in India. The widow having died the Administrator-General obtained from the High Court of Calcutta letters of administration de bonis non of the testator's unadministered property and effects. The difference between the value of assets in India when probate was obtained from the High Court of Calcutta and its increased value was made up of assets obtained from England upon which duty was paid in England. It was held that the assets obtained from England were within the jurisdiction of the High Court of Calcutta at the time of the grant of letters of administration and the Administrator-General could not have obtained possession of them otherwise than by virtue of the grant and therefore they were clearly liable to ad valorem duty and that the fact that probate duty upon the same property was previously paid in England by the deceased executrix was no ground for exempting it from duty in the hands of the Administrator-General.8. In Deputy Commr. Singhbhum v. Jagadish Chandra Deo AIR 1921 Patna 206 it was held that for the purpose of court-fees the true value of the estate must be its value at the date of the application for probate or of letters of administration and not the value at the death of the testator. This case also does not deal with the question whether the duty was payable in respect of the assets situate outside India.9. In In re G.T. Williams AIR 1924 Calcutta 115 the Calcutta High Court dealt with the question of payment of duty on the estate of the deceased which was within India and therefore that does not help us in deciding the question that arises for consideration in this case.10. In In re Leslie Devison Miller AIR 1956 Madras 200 it was held that the dividends payable on the shares which the deceased held would form accretions to the estate unless they were unlawfully subtracted and the mere fact that those dividends were remitted abroad would not make any difference as those who remitted the dividends abroad had no legal authority to do so and consequently those dividends should be considered as accretions to the deceased and that duty must be paid on them.11. In In the matter of Ramchand AIR 1956 Madras 277 it was held that in respect of interest received by the executor after the death of the deceased-testator and before application for probator the same should be included in the affidavit of assets and court-fee paid on the same.12. Thus all the aforesaid authorities go to show that duty is payable on the assets situate in India in the hands of the executor on the date of application for probate or letters of administration. But the question whether duty is payable in respect of assets situate outside India on the date of application did not directly arise in those cases.13. Sri M. Jagannadha Rao the learned counsel for the petitioner places strong reliance upon the ruling of the Bombay High Court in In Re Exekiel Joshua Abraham (1897) ILR 21 Bombay 139. In that case the deceased left assets of the estimated value of Rs. 10 06 892-5-8 out of which Rupees 4 29 415-5-8 was the estimated value of the property left by the deceased in Bombay and Rs. 5 16 477/- was the estimated amount of remittance expected from Shanghai in respect of proceeds of opium and twist (?) consigned by the deceased to his son and agent at Shanghai while the balance of Rupees 61 000/- was money remitted from Shanghai by telegraphic transfer after the death of the deceased to certain banks in Bombay and detained by them until production of probate. It was contended by the petitioners therein that probate duty could not be charged on either of the last two items as being outside the jurisdiction of the Court at the time of the deceased's death. The Registrar of the High Court in his testamentary and intestate jurisdiction opined that probate duty was payable on the whole of the amount. The taxing master referred the question under Section 5 of the Court-fees Act 1870 to the Chief Justice Strachey Chief Justice held that probate duty was payable only on the assets which at the time of the testator's death were in British India. The Chief Justice further held :Where the assets of the testator are at the time of his death in another country the Indian probate will not enable the executor to recover them although when in any way he does so they fall within his general duty to administer and although the court of the foreign country in granting probate or administration for the purpose of their recovery may as a matter of comity follow the decision of the British Indian Court.This judgement therefore clearly supports the contention of the petitioner that the court-fee need not be paid on the whole of the assets but only on the assets situate in India.14. In view of the aforesaid ruling I uphold the contention of the petitioner that he need not pay court-fee under Article 6 of Schedule I of the Andhra Court-fees and Suits Valuation Act on the value of the assets mentioned in Schedule B which are situate outside India and the question is answered accordingly.Order accordingly.