PRITISH KUMAR MITRA Vs. PROSANTO KUMAR MITRA

JUDGEMENT

(1.) This Rule issued upon an application under Section 115 of the Code of Civil Procedure against an order passed by the learned Additional District Judge of Alipore in a pending probate proceeding numbered as Other Suit No. 6 of 1969. In that proceeding Pritish Kumar Mitra has applied for grant of Letters of Administration with a copy of the Will annexed propounding therein a Will which he alleges is the last testament of his uncle Probodth Kumar Mitra. When that proceeding was pending, the propounder Pritish Kumar Mitra made an application to Court stating that the requisite Court-fees have already been paid in a proceeding No. 131 of 1949 under Act XXXIX of 1925, and that he would deposit the ad valorem Court-fees on the Affidavit of Assets in the present proceeding at the appropriate stage. That matter was heard by the learned Additional District Judge on 14th of August, 1969.

(2.) The background of that petition made by Pritish Kumar Mitra was that in the previous proceeding No. 131 of 1949 the same Will of Probodh was propounded by Pritish's eldest brother Prafulla Kumar Mitra who was named as an Executor in the Will. There was no contest raised in that proceeding and the District Delegate made a grant of Probate upon a stamp duty of Rs. 5460/- being paid in that proceeding. Thereafter there was an application for revocation of the grant by a person who was a brother of the testator Probodh and the grant was revoked. The Probate proceeding was at that stage contentious and was therefore being dealt with in the Court of the District Judge or a specially authorised Subordinate Judge. During the pendency of that contentious Probate proceeding which started upon the application by Prafulla, Prafulla died. Thereupon Pritish Kumar Mitra made a fresh application praying for Letters of Administration with a copy of the Will annexed and the present proceeding has commenced upon that application.

(3.) The learned Additional District Judge in his Order No. 144 dated 14th of August, 1969 held that a stamp duty of Rs. 5460/- was deposited in the case No. 131 of 1949 in December, 1949 upon a valuation of Assets at Rs. 1,42,000/- in the Affidavit of Assets, while the Collector after enquiry assessed that valuation at Rs. 4,47,200/-. Consequently the Executor Prafulla in that proceeding was directed to pay the additional stamp duty of Rs. 17,258/-. That stamp duty, tt appears, has not been paid.