ANITA REWAL Vs. STATE

JUDGEMENT

(1.) Mrs. Pushpa Tandon made a will dated 30th August, 1971. She died on 29th August, 1977. Mrs. Anita Rewal made the petition under Section 276 of the Indian Succession Act, 1925 (hereinafter called 'the Act') for the grant of the probate with an affidavit of valuation of the property and liabilities detailed in Annexures 'A' and 'B' attached to the petition. On 18th May, 1979 the Probate was ordered to be granted to her. The petitioner filed the Estate Duty Clearance Certificate and the necessary court-fees. The Registry prepared the Probate and also annexed details of property as Annexures 'A' and 'B' to the said probate. Mr. Bhagat, counsel for the petitioner states that the Probate prepared by the Registry is not in accordance with Section 289 read with Schedule VI of the Act. Under Section 276 of the Act in the application for the grant of the Probate the petitioner is required to state the amount of assets which are likely to come to the petitioner's hands only for purposes of court-fees. Under Section 19-1 of the Court-fees Act the petitioner is required to pay court-fees on such valuation. The petitioner accordingly paid the court-fees on the value of the property detailed in Annexures 'A' and 'B' of the affidavit of valuation. The details of the properties mentioned in these annexures are, however, not to be included in the Probate to be granted to the petitioner as the Form for Probate prescribed by Schedule VI of the Act does not contain any provision for the mention of details of property or the assets which are likely to come to the petitioner's hands and Section 289 of the Act is mandatory. Under this form a copy of the Will is to be annexed but the Registry has attached Annexures 'A' and 'B'. Section 289 of the Act is as under : "289. When it appears to the District Judge or Distt. Delegate that probate of a Will should be granted, he, shall grant the same under the seal of his Court in the form set forth in Schedule VI." As the words "as set out in Annexures 'A' and 'B' (annexed hereto)" in the Probate do not find place in the form prescribed in Schedule VI of the Act, they appear to be contrary to law. Section 289 of the Act is mandatory and prescribes the form for the grant of the probate. Moreover the probate is granted to the executor with a view to administer the entire estate of the deceased. The petitioner-executrix has been directed under Section 317 of the Act to file an inventory of all the assets and under Section 318 of the Act she has to state the value of such property in the inventory. Section 19E of the Court- fees Act provides for cases where too low a court-fees on the probate has been paid, and later on it is found that the value of the property was more. Section 19-E of the Courtfees Act is as follows : (......)

(2.) A reference in this connection may be made to Chanan Devi v. Des Raj Ram chand, AIR 1965 Punj 138. In this case copies of schedule indicating the amount of assets was annexed to the Probate granted on 4th February, 1957. The grantee of the Probate sought to recover the property of the deceased but it came to light that the property of the deceased to be realised was more than mentioned in the schedule annexed to the Probate. The grantee was therefore refused delivery of property not indicated in the schedule annexed to the Probate. On an application the High Court deleted the schedule of property attached in the Probate under its inherent powers by order dated 9th April, 1962. Thus it appears that schedule of property should not be part of Probate granted by the court. It is therefore ordered that the probate prepared by the Registry be amended so as to bring the same in accordance with the form set forth in Schedule VI of the Indian Succession Act, 1925 by deleting the words "as set out in Annexures 'A' and 'B' (annexued hereto)" from the Probate prepared by the Registry.

(3.) Mr. Bhagat, counsel for the petitioner further submits that affidavit of valuation with Annexures 'A' and 'B' attached to the petition also should not form part as Annexure to the Probate. He submits that this affidavit is only meant for the purpose of determination of the court-fees payable on the probate in accordance with Section 19I of the Court-fees Act and that there is no provision in the Indian Succession Act, 1925 for making the affidavit of valuation as part of the Probate. He further submits that clause 9 of the Original Side Practice Direction No. 7 pertaining to Testamentary and Interstate Jurisdiction is not in accordance with Indian Succession Act, 1925 and that his client would be put to great inconvenience if this affidavit of valuation along with Annexures 'A' and 'B' is attached to the probate. Mr. Bhagat again relies upon the said judgment of the Punjab High Court in support of this contention. It appears that the affidavit of valuation is filed under the Court-fees Act and there is no provision under the Indian Succession Act to incorporate the affidavit of valuation or the details of the assets of the deceased in the Probate itself or by means of Annexures to the probate. Under Section 273 of the Indian Succession Act the probate has effect over all the property and estate, movable or immovable, of the deceased. In view of these provisions I hold that it is also not necessary to attach with the probate the affidavit of valuation accompanying application for the grant of Probate. The Probate be corrected in the light of this order and delivered to the petitioner who would comply with provisions of Sections 317 and 318 of the Indian Succession Act, 1925.