Chandrabati Kuar vs The Collector of Darbhanga

Saiyid Sharfuddin, J.—This application was ordered to be heard first with regard to the question whether this Court had jurisdiction or not to interfere with the order passed by the District Judge on the application of the petitioner for a reduction in the Court-fees charged as probate duty on a sum equal to the capitalized value of Rs. 150 per mensem.

It appears that one Chandi Prasad Singh died leaving a Will; and also leaving two widows and a mother. In the Will the deceased appointed the senior widow as the sole executrix; and it was provided in the Will that the junior widow was to get an annuity of Rs. 50 a month and the mother an annuity of Rs. 100 a month.

The petitioner made a valuation of the net value of the property of the deceased and the Collector of Darbhanga generally accepted and approved of the valuation, but he disallowed the reduction as observed above. The learned District Judge agreed with the Collector on this point, and from the order of the District Judge the present application is made.

The present application is u/s 115 of the Code, and the question for determination is whether u/s 115 we can interfere with, and set aside, the order of the District Judge. There can be no doubt that the District Judge had full jurisdiction to pass the order that he did. No doubt, if the District Judge had been guilty of passing a totally perverse order we might have been justified in interfering with it; but the order that he has passed was passed after careful consideration of the Act and we, therefore, hold that this Court has no jurisdiction to interfere with his order.

Apart from this consideration, however, the application must also fail on its merits.

The contention of the applicant is that, inasmuch as a charge has been made on the income of the estate to the extent of Rs. 150 a month, this should be treated as a debt, and that, therefore, in accordance with Schedule III, Annexures A and B of the Court Fees Act, a deduction should have been allowed.

Annexure A of Schedule III deals with the valuation of moveable and immoveable property of a deceased person; and at the bottom of the annexure it is provided that a deduction should be made on account of the items mentioned in Annexure B, and these items are:--

(1) Amount of debts due and owing from the deceased, payable by law out of the estate;

(2) Amount of funeral expanses;

(3) Amount of mortgage encumbrances;

(4) Property held in trust not beneficially or with general power to confer a beneficial interest;

(5) Other property not subject to duty.

There can be no doubt that these charges have to be deducted in assessing Court-fees.

It is contended that the fourth item of Annexure B relates to property held in trust under the Will not beneficially to the interest of the executrix of the Will. In my opinion, the trusts here referred to are trusts held not beneficially by the testator during his lifetime, but trusts created by the Will, That being the view I take, I must hold that the Court-fee chargeable should be calculated on the net value of the whole estate which is the subject of the Will.

On behalf of the petitioner reliance is placed on the decision in In the goods of Rushton 3 C. 736 : I Ind. Dec. (N.S.) 1051. That was a reference made by the Taxing Officer to the Chief Justice of Calcutta, and it appears from the report that the order made must have been passed in Chambers as nobody appeared in the matter. The decision is quite contrary to that in In the goods of Ram Chunder Doss 18 W.R. 153 : 9 B.L.R. 30. Another decision relied upon on behalf of the applicant is that in 18 CWN 153 (Privy Council) . Reliance is also placed on the decision in the goods of In Re: In the goods of Harriett Teviot Kerr . That was not a case of annuity and what was held was that the Court-fee payable upon the property under the Act is to be calculated upon the net value of the estate after the deduction of debts from the gross value of the estate. In the present case there was no debt. If there had been a debt or a non-beneficial trust, created in the life time of the testator, no doubt under the Act a deduction would have to be made; but this is not a case in which there is any such debt or trust. Therefore, I hold that on the merits even applicant has no case.

The application is, therefore, rejected.

Reginald Roe, J.

I agree. The deduction allowed under Schedule III, Annexure B, for property held in trust, not beneficially, undoubtedly applies only to "property which a deceased person was possessed of or entitled to not beneficially but as trustee for any other person or persons." [see Financial Resolution No. 2004, dated the 14th July, 1871, quoted at page 153 of Sutherland''s Weekly Reporter, Vol. XVIII.]