Gouri Bala Sadhukhan vs Jiban krishna Sadhukhan

Sankar Prasad Mitra, J.—This Rule is directed against Order No. 5 dated August 12, 1971, of the District Judge, 24-Parganas, in Original Suit No. 21 of 1971. A testator executed a Will on April 4, 1970. On April 11, 1970, the testator died. An application for probate was made before the District Delegate at Alipore on September 16, 1970. This was marked as Act XXXIV, Case No. 156 of 1970. Citations mere issued on November 4, 1970. The opposite parties Nos. 1, 3, 4 and 5 filed on April 20, 1971, a petition of objection. Thereupon, the District Delegate returned the application for probate on April 23, 1971, as the case became contentious and the application for probate was refiled before the District Judge, Alipore, on April 28, 1971 and registered as Original Suit No. 21 of 1971. The District Judge directed on April 28, 1971, that one half of the ad valorem Court-fees on the market value, of the estate less the fees already paid on the application is to be deposited in view, of the proviso to Schedule II, Article 1(g)(ii) of the West Bengal Court-fees Act, 1970. The, propounder then filed an application on May 13, 1971, u/s 151 of the CPC for proceeding with the case without payment of ad valorem Court-fee. On August 12, 1971, the District Judge passed the impugned order rejecting the application u/s 151.

Let us, at the outset, set out schedule II, Article 1(g) of the Court-fees Act, 1970. It runs thus:

Number Schedule II Proper Fee

1 Application or petition. (g)(i) For probate or letters of administration to have effect throughout India. Twentvfive. rupees

Schedule II Proper Fee

(ii) Application for probate or letters of administration not falling under Clause (i)

(1) If the value of the estate does not exceed Rs. 1,000 Seventyfive paise

(2) If the value exceeds Rs. 1,000. Five rupees

Provided that if a caveat entered and the application is registered as a suit, one half the scale of fee prescribed in Article 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied.

We are called upon to construe the proviso aforesaid to Article 1(g)(ii). The plain meaning seems to be that this proviso is applicable when (i) a caveat is entered and (ii) an application is registered as a suit.

Now, a ''caveat'' has not been defined in, the Court-fees Act. But, u/s 284(4) of the Indian Succession Act, 1925, it is stated that the caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.

The form set forth in Schedule V is as follows:

Form of Caveat Let nothing be done in the matter of the estate of A.B. late

of...deceased, who died on the...day of...at...without notice to C.D. of....

It is clear, therefore, that a caveat is entered before an application for probate. A caveat is a warning given by a person having or asserting an interest in the estate of the deceased against the Court issuing any probate without notice to the caveator. A caveat is not a notice to any particular person but is a notice to the Court not to allow proceedings to be taken in the matter of the Will of the deceased without notice to the caveator. A caveat does not commence litigation nor does it institute proceedings. The whole object of the caveat is to prevent the issue of any grant without notice to the caveator. The main purposes for which a caveat is entered are to give time to the caveator to make enquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant or to give him an opportunity of raising any question arising in respect of the grant or to enable the caveator to apply for an order that the sureties to the administration bond shall justify or as a step preliminary to an action or to the issuing of ''citation.'' The form of caveat under the Indian Succession Act makes it abundantly clear that it is nothing more than a warning. The form does not require that any grounds of objection should be stated in the caveat. Under the procedure laid down in the Indian Succession Act nothing follows upon the filing of a caveat except that the caveator becomes entitled to notice before the grant, the object being that he, gets an opportunity to appear and contest the grant : Vide In the goods of Nanda Lal Sett (1954) 58 C.W.N. 568 (571).

It is apparent, therefore, that there is a good deal of difference between a caveat and a petition of objection upon receipt of citation. In point of time, the caveat is filed before the application for probate whereas the petition of objection is filed after citations are issued and served.

Then again, from the scheme in the Indian Succession Act, particularly the provisions in Sections 276, 278, 283, 284, 285, 286, 288 and 295, it appears that a case does not become contentious merely on the filing of the caveat of the filing of a petition of objection. Section 286 of the Indian Succession Act lays down:

A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate of letters of administration ought not to be granted in his Court.

There is an explanation to Section 286. The explanation is:

''Contention'' means the appearance of any one in person, or by his recognised agent or by a pleader duly appointed to act on his behalf to oppose the proceeding.

This shows that only when some one appears to oppose the proceeding for probate there is a ''contention'' as to the grant within the meaning of the Indian Succession Act.

If we now look again at the proviso to Schedule II, Article 1(g)(ii), we find that this proviso is invoked when two conditions are satisfied, namely, (i) a caveat has been entered and (ii) the application is registered as a suit.

The learned Government Pleader has argued, before us that the word ''and'' in this proviso should be read, as ''or'' to bring out the real object of the Legislature. According to him, the object was that this proviso would be applicable either when a caveat is entered or when the application is registered as a suit.

To us it seems that the argument of the learned Government Pleader is not in conformity with the well-known canons of construction of fiscal statutes. In A.V. Fernandez Vs. The State of Kerala, it has been stated that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law If the Revenue satisfies the Court that the case falls strictly within the provisions of law, the subject can be taxed. If, on the other hand the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter. We must, of necessity, therefore, says the Supreme Court, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that a party was liable to assessment.

Then again, in the Central India Spinning and Weaving and Maunfacturing, Co. Ltd. The Empress Mills Nagpur v. The Municipal Committee Wardha (1958) S.C.J. 604 (611) the Supreme Court approves of the observations made in Bedord v. Johnson 102 Colo. 203, 78 Pac (2) 373. The observations were as follows:

Statutes levying taxes or duties, upon; citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing upon a close analogy and all questions of doubt will be resolved against the Government and in favour of the citizen and because burdens are not to be imposed beyond what the statute expressly imparts.

Applying these principles to the proviso under consideration, we shall not be justified in reading the word ''and'' as ''or'' as suggested by the learned Government Pleader.

There is one other way of approaching the problem before us. In Article 13 of Schedule II to the Court-fees Act ''caveat'' has been specifically mentioned and the proper fee is ten rupees. It is well-known that when precision is required, no safer Rule can be followed then always to call the same thing by the same name. Vide Maxwell on Interpretation of Statutes (10th ed., p. 322). Applying this maxim to the provisions we are considering in this Rule, we cannot say that caveat has one meaning in Article 13 and another meaning in the proviso to Article 1(g)(ii). Caveat in both the cases has the same meaning. It cannot have a wider meaning in the proviso to include petitions of objections as well. From this point of view it appears that the approach of the learned Judge in the impugned order is not correct. The learned Judge is of opinion that the word ''caveat'' should not be given a narrow connection in the proviso. We do not agree with this view. The learned Judge has followed a decision of the Madras High Court in Flarence Chelliah Vs. Soundararaj Peter and Others, . In the concluding lines of this judgment it is stated:

Merely because a caveat does not beer stamp, it cannot be said that it if not a caveat any more than a plaint, which bears less than the required Court-fee, ceases to be a plaint on that account. Where an application for probate becomes contentious and is tried as a suit, it should be assumed for the purpose of the proviso that a caveat is impliedly entered.

In view of the well-settled rules of fiscal statutes, we are of opinion that there is no scope for any implication. One has to go by the express terms of the statute alone.

In the result, this Rule is made absolute. There will be no order as to costs. Let the records be sent back to the trial as expeditiously as possible.

Janah J.

I agree.