Framjee Cursetjee Heerjeebhoy Rustomjee vs Board of Revenue and Others

B.C. Mitra, J.—In this application the petitioner seeks appropriate Writs and orders directing the respondents Nos. 1 and 2 to cancel, recall and set aside the orders passed by them to the effect that they could not entertain the petitioner''s application for refund of the amount of excess court-fee, on the ground that the said application could not be entertained by them unless the total amended valuation of the estate was accepted by the High Court. The petitioner in this case is a solicitor of this Court and by a power of attorney dated December 12, 1960, he was authorised by the executors to the estate of one Hugh Carl Joseph Smith (since deceased) to apply for and obtain letters of administration, with a copy of the will annexed, to the estate of the said deceased in India. As such constituted attorney, the petitioner applied to this Court on August 11, 1961, for grant of letters of administration. In the affidavit of assets affirmed by the petitioner on May 1, 1961, and filed with the application for grant of letters of administration, the estimated value of the estate left by the said deceased in India was shown at Rs. 1,03,815.51 paise. On the basis of this valuation the petitioner paid court-fees in the sum of Rs. 3,590 under the provisions of the Court Fees Act, 1870.

On August 14, 1961, letters of administration were granted by this court to the petitioner in respect of the estate of the deceased. The petitioner''s case is that at the time of the usual enquiries made in connection with the application for grant of letters of administration by the Probate Deputy Collector, for the purpose of ascertaining or finding out, if assets and properties were correctly valued, it was found that the assets left by the said deceased in India were over-valued by Rs. 14,598.95 paise. Due to such overvaluation, the petitioner paid excess Court-fee in the sum of Rs. 630.95 paise. In the circumstances, the petitioner claimed refund of this excess Court-fees paid.

On March 14, 1962, the petitioner made an application to the respondent No. 1, u/s 19A of the Court Fees Act, 1870 (hereinafter referred to as the Act), for refund of the said excess court-fee, that is Rs. 630.95 paise. An affidavit was also forwarded by the petitioner to the respondent No. 1 containing the particulars of the said over-valuation. The respondent No. 1 refused to entertain and consider the petitioner''s said application and put forward the plea, that since the High Court had accepted the valuation of the assets while granting the letters of administration, the High Court should amend the valuation of the assets, before the respondent No. 1 could accept or act upon the petitioner''s application for refund. It was on this basis that the petitioner''s application for refund was not dealt with by the respondent No. 1 and thereupon the petitioner moved this Court and obtained a rule nisi.

Mr. R. Pyne, learned counsel for the petitioner, referred to section 19A of the Act, which provides that where a person applying for probate or letters of administration of a deceased, has estimated the property of the deceased to be of greater value than the same as afterwards proved to be and on that basis paid a higher court fee, if within six months after the true value of the property has been ascertained, such a person produces the probate or letters to the Chief Controlling Revenue authority (which, in this case is the Board of Revenue) and furnishes such authority with the inventory and valuation of the property, and if such authority is satisfied that a greater fee was paid on the probate or letters than the law required, then such authority may do one or other of the three things specified in clauses (a), (b) and (c). Relying upon the provisions of this section Mr. Pyne submitted, that the practice followed with regard to the applications for probate or letters of administration in this Court, has all along been that after the grant of letters of administration or probate, as the case may be, an enquiry was made by the Probate Deputy Collector with regard to the valuation of the property left by the deceased, and if the property was over-valued, in consequence of which higher court fees were paid, the Board of Revenue acting on the valuation of the property made by the Probate Deputy Collector refunded the excess amount in one of the three manners prescribed in section 19A of the Act. It was argued that in this case also the Probate Deputy Collector has found that the property of the deceased was over-valued as mentioned above and, therefore, the excess court fee stamp in the sum of Rs 630.95 paise was paid. It was submitted by Mr. Pyne that the respondent No. 1 was not justified in contending that the High Court having accepted the valuation of the property, and having acted on such valuation, should first amend the valuation by reducing the same before the respondent No. 1 could act upon it. It seems to me that there is a patent fallacy in this contention which was raised on behalf of respondent No. 1. This Court does not go into the question of valuation of property of a deceased, nor does this Court make an estimate of such valuation. All that this Court is concerned with, is to see if the Court fee due on the valuation declared by an applicant for letters of administration or probate has been paid, and if the court fee due on the declared value has been paid, there remains nothing else for this Court to do. This question had come up before this Court, and the position was clearly stated by Costello, J. In the In Re : Aratoon Stephen . In that case it was clearly pointed out that this Court has only to be satisfied that appropriate duty has been paid on the net valuation of the estate as setforth in the affidavit of the applicant, and it was no part of the duty of this Court to check the correctness of the valuation, which task has been reserved for the Revenue authorities to be performed by them, if considered necessary after receipt of the usual notice of the application from the Court. So far as this Court is concerned, the position has always remained the same namely, that the Court never went into the question of valuation of the property of the deceased and the only matter which the Court looked into was if the court-fee due on the valuation declared by the applicant had been paid.

Mr. D. Gupta, learned counsel, for the respondents Nos. 1, and 2, however, relied upon the provisions in sections 19E, 19F, 19G, 19H and 19I of the Act. Section 19E provides for cases where too low a court-fee has been paid on probate or letters of administration. This section lays down that where any person applying for probate or letters of administration has estimated the estate of the deceased to be of less value than the same as afterwards proved to be, and for that reason had paid too low a court fee, the Revenue authority for the local area may, cause the probate or letters of administration to be duly stamped on payment of the full court fee which ought to have been originally paid. The section also provides for imposing penalty. Section 19H(1) deals with an application for probate or letters of administration to any court other than the High Court, and it provides that where such an application is made, the court shall cause a notice of the application to be given to the Collector. Section 19H(2) provides that where such an application as aforesaid is made to a High Court, the High Court usually causes a notice of the application to be given to the Chief Controlling Revenue Authority. Sub-sections (3), (4), (5) and (6) provide for enquiry by the Collector and also amendment of the valuation and thereafter application to Court for reducing the valuation of the properties. Mr. Gupta contended that in the case of applications to Court other than High Court, provision has been clearly made by the statute for enquiry by the Collector and also for an application to court for amending the value of the property declared by the applicant. But he submitted there was no corresponding provision in the statute for an enquiry with regard to applications made to the High Court. He, therefore, argued that the respondent No. 1 was justified in holding that the petitioner in this case must move this Court for reducing the valuation of the property which this Court had accepted, while dealing with the application for letters of administration.

As I have pointed out already, this Court does not go into the question of valuation of the property at all. That is a matter with which this Court is not concerned. This Court is only concerned with the question if the Court fee due on the valuation declared has been duly paid. It appears to me that the practice followed so long, namely, that the valuation declared by an applicant is checked and verified by the Probate Deputy Collector has worked well all these years. It is on the report of the Probate Deputy Collector that deficit court fees, if any, that is to say, when smaller amount was paid than was actually due, was recovered from the estate of the deceased and it is again on this report that refund was granted in appropriate cases where over-payment was made by an applicant. I do not see any reason why a departure should be made from this practice, particularly because no instance has been cited before me where the practice followed so far has been found to be wanting in any respect whatsoever.

Mr. Gupta, however, submitted that u/s 19A of the Act, the respondent No. 1 had a discretion in the matter and that discretion should not be interfered with. It is not my intention by the observations made in this judgment, in any way to interfere with or curtail any discretion which the statute has given to the respondent No. 1. I, therefore, direct that the respondent No. 1 should accept the report of the Probate Deputy Collector, with regard to the valuation of the estate of a deceased person, and act upon it. But the manner in which relief is to be given to an applicant is a matter entirely within the discretion of the respondent No. 1 and it would be for him to consider what relief would be granted to the applicant. That discretion vested in the respondent No. 1 by the statute cannot be taken away from him except by amendment of the statute itself.

In that view of the matter, this Rule is made absolute and the respondent No. 1 is directed to act according to law in the light of the observations made in this judgment. Each party to pay its own costs002E