Valuation of property for determining court fees on probate application to be made as on date of application and not date of death of deceased.

( 1 ) THIS is to consider a revisional application under Article 227 of the constitution of India which is directed against Order No. 19 dated 3. 1. 2004 passed by Sri P. K. Roy, District Delegate in the Court of District Delegate, tamluk in connection with J/misc. Case No. 49 of 1973 arising out of an application for Probate of a Will under Section 276 of the Indian Succession act.

( 2 ) IT appears from the order impugned that the ma n dispute relates to the payment of Court Fees in granting probate. In the instant case, what happened is that the petitioner filed an application for granting probate in the year 1978 and on 25. 2. 1978 the learned District Delegate passed the ex-pane order to the effect that the applicant not the probate of the Will (Exbt. 1) executed by the testator, Sashi Bhusan Maity since deceased. Thereafter, no step was taken by the petitioner for grant of probate and it was only in 2004 the petitioner came before the Court with a prayer to grant probate. The learned District Delegate in such circumstances passed in order on 16. 5. 2003 directing for writing a letter to the Collector in order to submit a report regarding the valuation of the scheduled properties. Thereafter, the petitioner filed another application with a prayer for modification of the said order dated 16. 5. 2003 and whereby the learned district Delegate sought for the report from the Collector as regards the valuation of the property in schedule. It is also insisted on by the petitioner that the learned District Delegate should act on the accepted valuation by the Court. But that prayer was refused and hence, this revisional application.

( 3 ) MR. P. B. Sahu learned Counsel appearing along with Mr. Sudhakar biswas and Mr. Amit Baran Das, the learned Advocates for the petitioner submits that valuation once accepted cannot be changed but the Court fees on such valuation at the present rate is to be paid. In order to substantiate his claim Mr. Sahu has referred to the ratio decided in the case of In the Goods of R. N. Clerk (AIR 1933 Lahore 936) wherein it was decided that the date of valuation of the estate is the date of application for probate and Court fees to be paid by the applicant may be revised subsequently. Mr. Sahu has also referred to a ratio decided in the case In the matter of Court Fee reference (AIR 1952 Allahabad 639 ). It was held in that case that the valuation has to be according to the market rates prevalent on the date of the application. In the other case, In the Re-Ramchand (AIR 1951 Madras 277) as referred to by Mr. Sahu it was held as below :-"reading the words of Paragraph 3 into words of Paragraph-1 of the affidavit given in Schedule III of the Court Fees Act, it is clear that in the case of a probate duty as is levied by Article 11 of the First schedule of the Court Fees Act, the value of the estate as on the date of the death of the deceased is not the criterion and that the critical date for fixing the value is the date of the application for probate or letters of administration. Further, the mere fact that an executor has been able to obtain payment of an interest which accrued to him after the date of the death of the deceased testator is not to be excluded from the computation of the value for the purpose of probate duty. Thus, the interest received by the executor after the date of the death of the deceased testator and before the application has to be included in the affidavit of assets and Court fee paid on the same. "

( 4 ) IT is argued by Mr. Sahu from "the Indian Succession Act, 1925 9th Edition by Paruk" that the fee payable is on the value of the movable and immovable property and such valuation is to be made as on the date of the petition and not the date of death of the deceased. Mr. Sahu has also referred to the decision made in the case of Mihir Saha v. Tanmoya Saha (2005 (1) CHN Calcutta 606 ). It was held in that case that the Court fee is to be paid on the grant of prob