CHINMATHA NATH PAL CHOUDHURI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The facts of this case may shortly be summarised as follows: On the 12 of April, 1920, the appellant applied for probate of the Will of one Braja Nath Pal Choudhuri, deceased. The application was registered on the 14 April, 1920, and intimation thereof was sent to the Collector. On the 3 July, 1920, the learned District Judge ordered that the probate of the Will was to be granted to the applicant. On the 15 September, 1921, the Collector's valuation was received in the Office of the District Judge. The value according to that valuation was Rs. 41,053-8-0, being much in excess of the value stated in the application filed by the applicant. The applicant not having amended the valuation to the satisfaction of the Collector, the Collector, on the 5 December, 1921 filed a petition in the Court of the learned District Judge under the provisions of Section 19-H, Clause (4) of the Court-Fees Act asking that an enquiry might be held into the question of the true value of the properties. The learned District Judge on the same date made an order purporting to be under Clause (5) of Section 19-H, of the Court-Fees Act directing an enquiry to be held by the learned Munsiff of Ranaghat. When the enquiry was being held by the learned Munsiff, it appears that on the 14 February, 1922, an application was filed before him by the applicant alleging that certain properties which had been included in the Schedule attached to his original application were properties which ho was not churning under the Will but were properties covered by a deed of gift and he prayed that these properties might be excluded from the Schedule for the purpose of the valuation that he was going to make. There was a further prayer worded rather curiously to the effect that a fresh valuation might be made in respect of certain properties which were being mentioned in a separate list which the appellant was filing before the learned Munsiff inasmuch as he wanted the probate to be in respect of those properties only. The learned Munsiff rejected that application. A further application to the same effect, made on the 20th February, 1922, was also rejected by the learned Munsiff. The learned Munsiff was of opinion that inasmuch as he had been asked by the terms of the order by which the enquiry had been directed to make a valuation in respect of the properties which were mentioned in the Schedule attached to the original application ho had no jurisdiction to go into the question of valuation of the properties mentioned in the fresh list filed before him, that is, to the remaining properties after excluding from the list of properties originally mentioned in the Schedule which were alleged to be covered by the deed of gift. He also found that it was not possible to identify the properties in the aforesaid two lists. In this view of the matter, he submitted a report which came in the usual course before the learned District Judge on the 21 April, 1922.

(2.) It appears that it was argued before the learned District Judge on that day that, inasmuch as those properties which were being claimed as having been declared to be debutter or trust properties in a suit between the applicant and his brother, were properties which had been wrongly included in the Schedule attached to the original application the valuation of the properties left by the deceased must be reduced by excluding the value of those properties. The learned District Judge thereupon passed the following order: The petitioner, on the strength of a decree to which Government is not a party and which was made while the present matter was pending, claims exemption for the value of that portion of the estate which was there declared to be debutter or trust property. The Government Pleader contends that this decree cannot now be taken notice of, and he relies on the doctrine of lis pendens. This contention appears to be correct and is allowed. The petitioner will pay stamp duty on the total net valuation found above by the 17 May on which date the probate must be produced.

(3.) As against this order the present appeal has been filed by the applicant. An objection has been taken on behalf of the respondent to the effect that no appeal lies against this order, inasmuch as it is not an order passed under any of the provisions of the Probate and Administration Act and under Section 86 of that Act an appeal only lies from such orders as are passed by the District Judge or District Delegate by virtue of the powers conferred on him by that Act. Now, it appears to us that the order was passed by the learned District Judge under the provisions of Section 19-H of the Court- Fees Act. The section clearly lays down the procedure which is to be followed when an application is made by the Collector on the refusal of the applicant for a probate to amend the valuation to his satisfaction and it lays down that if such an application is presented before the District Judge on behalf of the Collector asking that an enquiry may be held into the true value of the property the Court shall hold or cause to be held an enquiry accordingly and shall record a finding as to the true value, as near as may be, at which the property of the deceased should have been estimated. It further says that the finding of the Court recorded under Sub-section (5) shall be final. Now, the learned District Judge, on receipt of the report from the learned Munsiff, recorded the finding as quoted above under the provisions of Sub-section (5) of Section 19-H of the Court-Fees Act; and by Sub- section (7) of that section his finding is final. No appeal lies from this finding, and therefore, the objection of the respondent as to the maintainability of the appeal must succeed and the appeal must fail.