Gangadevi Poddar vs Gopi Krishna Sangmeria and Others

P.K. Misra, J.—The present Civil Revision is at the instance of one of the applicants in a proceeding for grant of letters of Administration pending before the trial Court. Originally, Misc. Case No. 28/92 (Letters) had been filed before the District Judge, Cuttack, but after appearance of opposite party No. 1, the case was transferred to the Court of the Civil Judge (Senior Division), 1st Court, Cuttack, and converted to O.S. No. 2 of 1994.

The facts giving rise to the present Civil Revision are as follows : It is alleged that one Gouri Shankar Sanganeria executed a will on 21-9-1989 bequeathing certain properties in favour of the present petitioner and others. The present petitioner and pro forma opposite party No. 4 filed Misc. Case No. 28/92 in the Court of the District Judge, Cuttack, for grant of Letters of Administration with the copy of the Will annexed. The applicants in the said Misc. Case had valued the property at Rs. 2,00,000/- (two lakhs) and had paid Court-tee accordingly. Thereafter, the Collector on being noticed submitted a Valuation Report. The applicants filed objection to the valuation report mainly contending that the said report related to the entire building, whereas the applicants were the legatees in respect of some of the rooms and not of the entire building. It appears that the aforesaid contention was turned down by the trial Court by order dated 31 -9-1996. Thereafter, the applicants filed a petition for an enquiry as contemplated u/s 19M(4) of the Court-Fees Act. In the said petition, it was stated that the valuation report was in respect of the entire house, whereas the applicants were to get some of the rooms of the house. It was further contended that though the Collector had submitted a valuation report, no motion had been made by the Collector as contemplated u/s 19-M(4) of the Court-Fees Act. Before the trial Court, it was also contended that the Collector had not enquired into the matter in presence of the applicants and it was also contended that the hearing of the probate proceeding may be taken up even without considering the question of valuation. The aforesaid contentions having been rejected, the present Civil Revision has been filed.

In the present Civil Revision, the learned counsel for the petitioner has raised the following contentions :--

(i) The present petitioner and opposite parties 3 and 4 being ladies are exempted from payment of Court-fee in view of the Notification dated,7th June, 1994, issued by the Law Department exempting certain categories of persons from paying Court-fee payable under Schedules I and II of the Court-fees Act for filing/instituting cases or proceedings in any Court in Orissa :

(ii) The Collector having not called upon the. applicants to amend the valuation as per Section 19-M(3) of the Court-Fees Act and further having not moved the Court thereafter, as contemplated in Section 19-M(4), the trial Court should not have called upon the applicants to pay the excess Court-fee; and

(iii) The applicants are liable td pay probate duty or Court-tee in proportion to the valuation of the rooms given to them and not on the valuation of the entire house.

Coming to the first contention, it is apparent that the Notification, the benefit of which is being claimed by the petitioner, was issued on 7th June; 1994. The present probate proceeding had been started in the year 1992. From the Scheme of the provisions contained in Chapter-IIIA of the Court fees Act, 1870, relating to probates, letters OP administration and certificates of administration, it is apparent that the Court-fee becomes payable on the filing of the application, but if the Court fee paid is insufficient, the same can be realised under the various provisions contained in Chapter-III of the said Act. Similarly, if the Court-fed paid is, in fact, more, provision is made for refund of the same, However, ii is clear that at the time of making the application. Court-fee is to be paid. In the present case, the Notification of the year 1994 cannot have any application to the proceeding which had been started in the year 1992. It has been decided by this Court in the decision reported in Neshtar Kaur and Others Vs. Arbail Singh and Others, , that the Notification issued by the Law Department is applicable where cases are instituted after the notification. Following the ratio of the aforesaid decision, the first contention raised on behalf of the petitioner is bound to be rejected.

The learned counsel for the petitioner then contended that the Collector having not followed the procedure contained in Section 19-M(3)of the Court-Fees Act, the trial Court is not justified in calling upon the applicants to pay the balance Court-fee. The learned counsel for the petitioner has relied upon the decision of the Calcutta High Court reported in Trambaklal Dayalal Kothari Vs. L.K. Dey and Others, , in support of such contention. It is, of course, true that Section 19-M(3) contemplates that the Collector should make an enquiry relating to the valuation and if upon such enquiry, is of the opinion that the value of the property had been under-estimated, he may require the applicant to amend the valuation and if the applicant does not amend the valuation, the Collector may move the trial Court to hold an enquiry into the true value of the property. Section 19-M(5) contemplates that the trial Court after holding an enquiry itself or after causing an enquiry to be held, shall record a finding regarding the true valuation of the property. A combined reading of Section 19-M(3), (4) and (5) makes it clear that the valuation given by the Collector is not final and the valuation has to be fixed thereafter by the trial Court.

In the present case, the Collector after making an enquiry found that the valuation given by the applicants was not correct and had submitted a report giving certain valuation. Thereafter, objection was filed by the applicants. In the objection, the applicants had not raised objection relating to the valuation of the house itself, but had contended that the proportionate valuation of the rooms willed in favour of the applicants should be considered. Though in letter the procedure contemplated in Sub-sections (3), (4) and (5) of Section 19-M had not been complied with, the procedure had been followed in substance. In the decision of the Patna High Court reported in Mundrika Prasad Singh Vs. Mst. Kachnar Kuer and Others, almost under similar circumstances, it was held that the party had ample opportunity to lay his grievances before the trial Court and there was no substantive departure from the procedure contemplated u/s 19-M. Since the ultimate decision relating to valuation has to be taken by the Court, the irregularities, if any, in the proceeding before the Collector would not vitiate the ultimate decision of the Court. It is, of course, true that the report of the Collector is not binding on the Court and an enquiry has to be made relating to the valuation by the Court. If the Collector submits a report and no objection is raised by the applicants, it may be validly assumed that they accept the valuation made by the Collector. If, on the other hand, objections are raised by the applicants, the Court should enquire into the matter. Merely because the Collector does not pass a specific order calling upon the applicants to amend the valuation and thereafter if valuation is not amended, does not make a formal application before the trial Court for causing an enquiry, the ultimate order of the Court would not be vitiated if order is passed after due enquiry. Where after receipt of report from the Collector, the Court proceeds to entertain objection from the applicants and proceeds to decide about the valuation after holding enquiry, it must be taken to be in substantial compliance with provisions contained in Section 19-M(5) of the Court-Fees Act. The decision reported in Lamshmi Prasad Vs. Badri Ram, , fortifies my above conclusion. It may also be noted that the decision reported in Mundrika Prasad Singh Vs. Mst. Kachnar Kuer and Others, had been followed by a Division Bench of this Court, of course, on another point, in the decision, reported in (1979) 48 CLW 282 Ananta Keshari alias Rama Sarkar v. Collector, Cuttack. For the reasons indicated in the decisions, reported in Mundrika Prasad Singh Vs. Mst. Kachnar Kuer and Others, and Lamshmi Prasad Vs. Badri Ram, I am unable to accept the contrary decisions, reported in Trambaklal Dayalal Kothari Vs. L.K. Dey and Others, and Ashok Bhojwani and Another Vs. In The Matter of: Estate of Mira Bhojwani, .

The learned counsel for the petitioner had raised the contention that the valuation of the entire house cannot be considered and only the valuation of the rooms claimed by the applicants should have been considered. The trial Court has rejected the aforesaid contention by saying that earlier the contention to that effect had been rejected by the trial Court and the said earlier order had not been impugned in any higher forum. In this context, the learned counsel for the petitioner submitted that, in fact, a petition for recalling the earlier order had been filed and was pending before the trial Court. Since a petition for recalling the earlier order is said to be pending before the trial Court, I do not express any opinion on this aspect of the matter leaving it open to the petitioner to press that review application before the trial Court. It is made clear that such application should he disposed of by the trial Court on its own merit without being influenced by any observations made in the subsequent order or in the present Civil Revision.

Subject to the aforesaid observations, the Civil Revision is dismissed. There would be no order as to costs.