ARNOLD DOMINIC RODRICKS Vs. SUNDER VINAYAK NAVALKAR

JUDGEMENT

(1.) THIS is an appeal against a Judgment of Desai J. by which he ordered probate to issue to the petitioners of a will of one Louisa Catherine Rodricks. The will was opposed by the appellant substantially on two grounds. One was that the petition for probate was not in We proper form and that proper court-fees had not been paid, and the other ground was that the will had been obtained by undue influence. With regard to the first ground the position is this. In the petition for probate in Schedule I the two petitioners have shown the value of moveable properties as Rs. 850/ -. That is the only property which has been shown in this Schedule. Then they have annexed Schedule III and in that Schedule they have shown the value of immoveable property at Rs. 35,000/-, and with regard to this Schedule there is an averment in para 9 of the affidavit, in support of the petition that this property is the subject-matter of the suit filed by the deceased testatrix in which suit she claimed this property as belonging to her. Admittedly, no court-fees have been paid on the value of this immoveable Property viz. , Rs. 35,000/- and the direction given by the learned Judge with regard to this property was that the petitioners should file a statement in the Court showing the result of the suit and the petitioners should undertake to pay the probate duty if the suit was determined in their favour, and Mr. Gauba on behalf of the appellant has contended that the order passed by the learned Judge is not justified by the provisions of the Court-fees Act and that the insertion of Schedule in to the petition, is also not in accordance with the Court-fees Act.

(2.) TURNING to the Court-fees Act, Section 19-I provides :

(3.) IT may be pointed out, in view of certain authorities to which reference will be Presently made, that in the case of book debts what has got to be shown are debts other than those which are bad and there is also a column in Annexture A "other property not comprised under the foregoing heads", in which case the petitioner has got to give the estimated value of this Property. If the immoveable property to which reference has been made in the third schedule was the property to which the deceased was entitled, then It must be shown in Annexture A whether it was actually in the hands of the executor or was likely to come to his hands, It is difficult to understand under what provision of the law this property can be shown in an entirely independent schedule. The fact that this property is the subject-matter of the suit in our opinion is an entirely irrelevant consideration. Either the deceased, accord ing to the petitioners, was entitled to this property or not. If the deceased was entitled to the property, then the property must be shown in Annexture A, and if the property is shown in Annex-tare A then it can only be valued in the manner laid down In Annexture A itself, and as this property which is the subject-matter of the suit is land, what the petitioners have got to show is its market-value and having shown its market-value court-fee on this valuation has got to be paid. The answer given by Mr. Sanghvi is that the property has not been brought into possession, that it is still the subject-matter of a litigation, that whether the petitioners would get this property or not would depend upon the decision of the suit and that at present all that the peti tioners have is a right of action with regard to this property. In our opinion, this contention is entirely untenable. A mere right of action cannot be property which need be shown at all in Annexture A. What has got to be shown in Annexture A, as we have already pointed out, is some property moveable or immoveable which the deceased died possessed of or to which the deceased was entitled, and the sole reason why the petitioners have brought in this property at all in this petition is because in their opinion the deceased was entitled to this property. Once the deceased was entitled to this property, then the property to which the deceased was entitled has got to be valued and the possibility that the executors of the deceased may not be able to establish the title of the deceased in the litigation cannot possibly affect the valuation of that property. If ultimately the suit fails and the title of the deceased to the property is not established, it may be -- we express no opinion on it -- that the petitioners may be entitled to claim a refund with regard to the court-fees paid on this property. But at the stage of application for probate the property must be shown on the basis that the deceased was entitled to that property, and if it is shown on that basis then the valuation must be in accordance with Annexture A and not in accordance with an estimate put by the petitioners based upon the possibility of the litigation with regard to the property failing. If the property which was shown in Annexture A was other property which was not comprised under the foregoing heads included in Annexture A, then undoubtedly the petitioners are entitled to put a value upon the other property and the value can only be an estimated value. But if, a property falls under any one of the heads enumerated in Annexture A; it is not open to the petitioners to bring it under "other property" and to put an estimated value. It is difficult to understand how these lands, in respect of which a suit is pending and which lands were claimed by the deceased and in respect of which the petitioners themselves say that the deceased was entitled, could be said to be not immoveable property falling under one of the heads in Annexture A but other property which is not comprised, under any of the foregoing heads. Therefore, in our opinion, the petitioners should have shown this property in the first schedule to their petition for probate, that it was not open to, them to show It in the third schedule, and also it was not open to them not to pay court-fees on the valuation of this property.