SUNDERJI LALJEE KHAKHAR Vs. STATE

JUDGEMENT

(1.) THIS is a reference under Section 5 of the Court-fees Act, a controversy having arisen with regard to the amount of fees which must be paid in taking out a succession certificate. The contention of the petitioner is that on a proper reading of Articles 11 and 12 of the Court-fees Act, 1870, as superseded by the Bombay Finance Act (II of 1932), the fee is to be charged on the amount or value of every security mentioned separately in the three schedules to the petition and not on the aggregate amount or value of the securities and therefore as the value of each share certificate separately mentioned in the schedules is less than Rs. 1,000 the petitioner is not liable to pay any fee at all. The question actually referred by the Assistant Prothonotary is: Whether the petitioner is liable to pay probate Court-fees on the succession certificate on the aggregate value of the shares mentioned in the three schedules annexed to the petition ?

(2.) NOW before approaching Articles 11 and 12 of the Court-fees Act as extended it is necessary to go to the charging sections which provide for the taking out of the succession certificates. They are to be found in Part X of the Indian Succession Act, 1925. It is necessary to say this by way of introduction that under the Indian Succession Act it is not in respect of every estate that either probate or letters of administration have to be taken out, and in the case of a Hindu who dies intestate-which is the case before us-no probate or letters of administration need be taken out at all. But, in order to get over the difficulty which arises when such an estate has comprised in it stocks and shares and debts for which banks or companies have to make some transfer or accept some receipt, it is necessary that the administrator should have a document of title; hence arises the succession certificate. Section 370 of the Indian Succession Act says that a succession certificate shall not be granted under Part X of the Act with respect; to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. Subsection (2) defines "security" and included in such definition is "any stock or debenture of, or share in, a company or other incorporated institution". Section 372 provides the manner in which the application for a certificate has to he made. It may be made by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of the plaintiff, and setting forth" the following particulars: Then in later sub-paragraphs are set out particulars, including under letter (f) the debts and securities in respect of which the certificate is applied for. Pausing there for a moment it is to be observed that the applicant need not apply for a certificate in respect of all the debts and securities, but only in respect of such as he requires to have a paper title. Section 373 provides that the District Judge must be satisfied that the applicant has a right to apply for a certificate. Section 374 lays down what the contents of the certificate are to be. Section 376 provides for the extension of a certificate, i. e. so as to include further debts and securities in respect of which a title is required but which were not included in the original certificate. Section 377 provides that a certificate should be granted and extensions of certificate should be made as nearly as circumstances admit in the forms set out in schedule VIII. Then we come to Section 379 which is the section which provides for the payment of a fee. It runs as follows: Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870, in respect of the certificate or extension applied for. In the eighth schedule are set out two forms, one in respect of the original certificate and the other of the extension of a certificate, and in the preamble to the former are the words, Whereas you applied on the. . . day of. . . for a certificate under Part X of the Indian Succession Act, 1925, in respect of the following debts and securities, namely: and likewise in the other form are included the words, On the application of A. B. made to me on the. . . day of. . . I hereby extend this certificate to the following debts and securities, namely. NOW until the coming into operation of the Government of India Act, 1935, it was the Court-fees Act, 1870, which was the relevant statute. But, since the coming into operation of List III of the seventh schedule of the Government of India Act, 1935, it is the Provincial extension of the Court-fees Act which becomes material. Article 11 of that Act provides for the court-fees payable in respect of the probate of a will or letters of administration with or without the will annexed, and in the second and middle column of that schedule is set out the method of quantifying the fee, that is to say, when the amount or value of the property in respect of which the grant of probate or letters is made exceeds one thousand rupees, on the part of the amount or value in excess of one thousand rupees up to ten thousand rupees, two per centum, and so on going up in unequal blocks of rupees to a maximum of seven per cent. Then we turn to Article 12 which deals with certificate under Part X of the Indian Succession Act, 1925, and in the column of proper fees are the words, The fee leviable in the case of a probate (article 11) on the amount or value of any debt or security specified in the certificate under Section 374 of the Act, and one and a half times this fee on the amount or value of any debt or security to which the certificate is extended under Section 876 of the Act. NOW the point which has been argued by Mr. Kallianiwalla on behalf of the petitioner is that "any debt or security" means that a separate fee has to be computed in respect of each of the items specified in the certificate. But it is to be borne in mind that under Article 11 and Article 12 the fees which are payable are on the probate and the certificate respectively. It is the contents of the probate or certificate as specified therein respectively which qualifies or fixes the amount of the fees. Under Article 11 it is too plain for argument that the words "when the amount or value of the property in respect of which the grant of probate or letters is made" means the aggregate of all the property contained in the grant. Under Article 12 the words are '' on the amount or value of any debt or security specified in the certificate". Clearly in my opinion the word "any" used in this context embraces all the debts and securities specified in the certificate, and it must be the aggregate of all of them which determines the amount of the fee which has to be paid. We have been referred to three cases of other High Courts in India. Two of them, namely one from Nagpur (Premalabai v. Priya Kumari [1940] A. I. R. Nag. 400) and the other from Oudh (Pirthtvi Nath v. Estate of Late Trilok Nath [1934] A. I. R. Oudh 414) are in favour of the petitioner whilst a case from the Calcutta High Court, In re Nalinikanta Pal (1933) I. L. R. 60 Cal. 1262, is to the opposite effect. With respect to the learned Judges who decided the cases in the Nagpur and Oudh Courts I am unable to agree with them. It seems to me that when the scheme of the Succession Act, considered in conjunction with the Court-fees Act, is appreciated, it is quite clear that the intention of the Legislature was to make one aggregate fee payable in respect of a succession certificate, in the same way as it had done in respect of protate and letters of administration. Nor do I find any difficulty in construing the language to arrive at that result, In my opinion the words "any debt or security", used in the context in which they are found, mean "all the debts and securities" specified in the certificate. I would therefore answer the question referred to us in the affirmative.

(3.) THE contention of the petitioner is that having regard to the wording of the, Finance Act (II of 1932) which deals with the court-fees payable in respect of a succession certificate, no fee is payable because each share certificate covers one hundred shares, and the market value of one hundred shares is less than Us. 1,000. It is argued on behalf of the petitioner that the words "any debt or security specified in the certificate'' used in Article 12 must be construed to mean the individual value of the security or debt. In this connection the definition of the word "security" given in Section 370 (2) of the Indian Succession Act, 1925, is relied upon. It is conceded that if this contention is upheld some very strange results will follow. For example, it was conceded that if a man died leaving one hundred shares, each being of the market value of Rs. 900, if he left fifty certificates representing one share each and one certificate covering fifty shares, the court-fee will be payable under Article 12 in respect of fifty shares covered by one certificate, while no duty will be payable in respect of the fifty shares represented by the individual share certificates. It has also to be remembered that on this construction, if each item for which the succession certificate is asked for is of the value of less than Us. 1,000, no duty will be payable although the certificate may entitle the holder to recover estate which may total even five or ten lacs of rupees. THE contention urged on behalf of the petitioner is that the Court has not to take into consideration the result of the construction. THE Court has to construe the words used by the Legislature, It is argued that this being a fiscal statute the liability of the subject must be clearly spelt out of the words actually used and it is improper to consider what was the intention of the Legislature.