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THE ESTATE OF KALPANA DAS NEOGI REPRESENTED BY ASHOKE KUMAR DAS V/S DIPALI DAS NEOGI & OTHERS, decided on Monday, December 17, 2012.
[ In the High Court of Calcutta, C.O. 2717 of 2012 (Appellate Side). ] 17/12/2012
Judge(s) : SOUMEN SEN
Advocate(s) : Siddhartha Chowdhury, Sanjib Kr. Ghosh. Opposite Abhinaba Banerjee.
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    West Bengal Court-fees Act 1970 - Section 32 -Court-fees Act 1970 - Section 32 -     Soumen Sen J.The subject-matter of challenge in this revisional application is a direction passed by the Civil Judge Senior Division in directing the petitioners to pay court-fees over and above Rs.50 000/- for granting the certificate for Letters of Administration on the ground that the value of the assets which is to be administered is of Rs.20 lakhs. The petitioners filed an application for granting of Letters of Administration in favour of the applicants over or in respect of assets and articles lying with S.B.I. Balurghat Branch vide Locker No.76 worth Rs.20 00 000/- presently deposited in the name of the deceased in the said Branch of the State Bank of India. The said application was filed upon payment of court-fees of Rs.50 000/-. The petitioners applied for such grant on 13th August 2010 and the said grant was initially treated as a succession case in lieu of Letters of Administration.It is contended that in terms of the provisions of the Succession Act as well as Court-fees Act the maximum court-fees payable is Rs.50 000/- as if the said grant is treated as a case for granting a succession certificate. The learned Judge overruled the said contention on the ground that Sheristadar of the trial Court has calculated/assessed the stamp duty at Rs.97 000/- for the value of the articles of Rs.20 00 000/- in terms of the provisions of the Court-fees Act. Originally when the petition was filed the petitioners/applicants prayed for issuing succession certificate. In the Misc. Case there was a prayer was made for issuance of Letters of Administration under the Indian Succession Act along with a prayer that the Court may be pleased to admit the said petition and grant Letters of Administration in favour of the petitioners. While admitting the said succession case the concerned office of the trial Court made an endorsement that it is for issuance of succession certificate. The learned Judge on a reading of the said application held that the applicants in fact have prayed for issuance of Letters of Administration and on consideration of the provisions of the West Bengal Court-fees Act 1970 as amended by the West Bengal Court-fees (Amendment) Act 2002 the petitioners are bound to deposit ad valorem court-fees as per the provisions of Schedule I (10) of the Court-fees Act. The learned Judge also observed that this Hon’ble Court in a decision reported in AIR 2005 Cal 231 (Mihir Saha & Anr. Vs. Tanmoy Saha & Ors.) held that ad valorem court-fees is payable on the basis of valuation made in terms of Serial No.10 of the Schedule I which is set out hereinbelow:-“I (10). Probate of a Will or letters of administration with or without Will annexed.(a) When the amount or the value of the property in respect of which the grant of probate or letters of administration is made exceeds ten thousand rupees on such amount or value up to twenty-five thousand rupees; Three per centum and(b) When such amount or value exceeds twenty-five thousand rupees on the portion of such amount or value which is in excess of twenty-five thousand rupees upto one lakh of rupees; Three and a half per centum and(c) when such amount or value exceeds one lakh of rupees on the portion of such amount or value which is in excess of one lakh of rupees up to five lakh of rupees; Four and half per centum and when such amount or value exceeds five lakhs of rupees on the portion of such amount or value which is in excess of five lakhs of rupees: Five and a half per centum.Provided that when after the grant of certificate under the Indian Succession Act 1925 (39 of 1925) in respect of any property included in an estate a grant of probate or letters of administration is made in respect of the same estate the fee payable in respect of the latter grant shall be reduced by the amount of the fee paid in respect of the former grant.”In Mihir Shah (supra) the question that had fallen for determination was whether the enhanced rate prescribed by virtue of the West Bengal Court-fees Amendment Act 2002 for payment of court-fees as provided in serial No.10 of Schedule I shall apply to the probate proceedings instituted prior to coming into force of the said amendment if the Court grants probate after coming into operation of the amended Act.In deciding the said application the learned Judge held that an application for grant of probate is required to be filed initially before the District Delegate with a fixed court-fees as provided in serial No.9 of the Schedule II. As soon as the said proceedings become contentious then the applicant would be required to take back the said application for the purpose of re-filing it before the District Court and affix court-fees in accordance with the direction contained in the proviso to the said serial No.9 of the Schedule II. Finally if the Court grants probate in favour of the executor the executor would be under an obligation to pay further court-fees on the basis of entire valuation of the property covered by the Will as provided in serial No.10 of Schedule I. If the applicant is otherwise unsuccessful in such a situation the executor would not be required to pay any further court-fees apart from those paid in terms of serial No.9 of Schedule II. Accordingly the liability to pay the final court-fees in terms of serial No.10 of Schedule I on the basis of valuation of the subject-matter covered under the Will accrues only when the Court decides to grant probate. It was thus held that a successful executor would be required to pay such court-fees at the rate prevailing on the date of grant of probate and not earlier.Before the West Bengal Court-fees Amendment Act 2002 it was held in Indumati Goenka Vs. The State of West Bengal & Ors. reported in 1994(1) CLJ 345 that where a proceeding for grant of probate and letters of administration becomes a contentious matter it is registered as a suit. So where in respect of all other suits an upper limit of Court-fees is fixed there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of any upper limit. As such there should be a declaration that the part of Section 12 read with Item 10 of Schedule I of the West Bengal Court-fees Act 1970 which provides levy of Court-fees in excess of Rs.10 000/- in any probate case is ultra vires Article 14 of the Constitution and is invalid. It was thus held that the writ petitioner is entitled to refund of the amount of Court-fees paid in excess of the said amount.The levy of ad valorem Court-fees imposed without any upper limit in respect of grant of Probate and Letters of Administration as provided by the West Bengal Court-fees Act 1970 is ultra vires the provisions of Article 14 of the Constitution of India. (Subrata Das Vs. The Collector of 24 Parganas (South) & Ors. 1995 (2) CHN 313)When an application is made for probate or Letters of Administration to any Court other than High Court it is a duty of the Court to give a notice of the said application to the Collector within whose local limit to jurisdiction of the property of the deceased or in part thereof is situated and the Collector is required to inspect and file a report with regard to the value of the said property. If it appears to the Collector that the petitioner has underestimated the value of the property of the deceased the Collector may give notice to the petitioner to appear and after holding an inquiry if it appears to the Collector that the property has been under valued the Collector may require the petitioner to amend the valuation. In the instant case the petitioners prayed for grant of Letters of Administration in respect of the assets and articles lying under the SBI Balurghat Branch Locker which had been assessed at Rs.20 00 000/- on the basis of a report filed by the Commissioner appointed in the said proceeding. Such valuation arrived at by the Inventory Commissioner has been accepted by the parties. The trial Judge on recording a satisfaction with regard to the said valuation and being prima facie satisfied that the petitioners/applicants are legally entitled to obtain a grant of Letters of Administration allowed the said application and such Letters of Administration was issued in favour of the applicants on resisting of proper court-fees. The Sheristadar was requested to assess the proper court-fees. The Sheristadar calculated and assessed the stamp duty at Rs.97 000/- for the value of the articles of Rs.20 00 000/-. The basis of the said calculation was accepted by the learned trial Judge after rejecting the objection raised by the applicants/petitioners that the highest court-fees payable under Letters of Administration is only Rs.50 000/- and accordingly the petitioner cannot be directed to pay any sum over and above Rs.50 000/-.The court-fees payable of a petition for Probate and Letters of Administration is according to the scale of fees prescribed in Schedule I Article 10 as required under Section 32 of the Court-fees Act 1970. Section 32 of the West Bengal Court-fees Act 1970 (as amended) is reproduced hereinbelow:-“S. 32. Payment of court-fees in respect of probates and letters of administration. – (1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in Schedule III and the Court is satisfied that the fee mentioned in No.10 of Schedule I has been paid on such valuation.(2) The grant of probate or letters of administration shall not delayed by reason of any motion made by Collector under sub-section (4) of Section 31.”Under Section 32 of the West Bengal Court-fees Act 1970 the grant of Probate or Letters of Administration will not be granted until the petitioner has filed in Court a valuation of the property in the form set forth in Schedule III and the Court is satisfied that the fee mentioned in No.10 of Schedule I has been paid on such valuation. The original valuation was amended on the basis of the report of the inventory commissioner and the Letters of Administration is now granted over the assets and properties of the deceased worth Rs.20 00 000/-. It has to be calculated on the basis of Schedule I Article 10 of the West Bengal Court-fees Act 1970 and not on the basis of ad valorem fees leviable on the institution of suits. The applicants would be required to pay such court-fees as may be determined on the basis of Schedule I Article 10 of the West Bengal Court-fees Act 1970. The learned trial Judge has proceeded on the basis that the plaintiff would be required to deposit court-fees on the basis of the report filed by the Sheristadar disregarding the fact that the petitioners have already deposited the maximum court-fees of Rs.50 000/-. If it had been a contentious cause the Court could not have collected and in fact cannot collect more than the maximum court-fees under Court-fees Act 1970. In view of the fact that maximum court-fees of Rs.50 000/- have been deposited the Court could not have directed the petitioner to deposit further court-fees over and above Rs.50 000/-.In view thereof the revisional application succeeds.The impugned order is set aside.Urgent xerox certified copy of this judgment if applied for be given to the parties on usual undertaking.