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1992 Supreme(Cal) 10
HIGH COURT OF CALCUTTA
Suhas Chandra Sen, J.
Subrata Das
Vs.
The Collector of 24 Parganas (South) & Ors.
C.O. No. 1677(W) of 1991
Decided On : January 13, 1992
N.C. Roychowdhury, Salil Kumar Mukherjee for the petitioner:
S. Ghosh for the State respondents.
The levy of ad valorem probate duty without any upper limit is unconstitutional as it violates the equal protection guarantee under Article 14 of the Constitution.
Headnote:
PROBATE DUTY - WEST BENGAL COURT FEES ACT, 1970 - SECTION 7(2)(v) - Levy of ad valorem probate duty without any upper limit is ultra vires Article 14 of the Constitution.
Fact of the Case:
The petitioner, the sole executor of his father's Will, applied for Probate. The Probate Deputy Collector delayed the valuation of the assets, causing financial distress to the petitioner and his mother, the sole beneficiary. The petitioner sought to pay the maximum court fee of Rs. 10,000/- under the West Bengal Court Fees Act, 1970, arguing that the unlimited probate duty was unconstitutional.
Finding of the Court:
The court held that the levy of ad valorem probate duty without any upper limit in the West Bengal Court Fees Act, 1970 was ultra vires Article 14 of the Constitution. It relied on a Supreme Court judgment which held that the levy of unlimited court fees on probate or letters of administration was unconstitutional in the State of Maharashtra.
Issues: Whether the levy of ad valorem probate duty without any upper limit in the West Bengal Court Fees Act, 1970 was constitutional.
Ratio Decidendi: The court reasoned that the discrimination between probate duty and court fees for other suits, where an upper limit of Rs. 10,000/- was fixed, was arbitrary and violative of the equal protection guarantee under Article 14 of the Constitution.
Final Decision: The court declared that the levy of ad valorem probate duty without any upper limit was unconstitutional and directed the respondents to accept Rs. 10,000/- as probate duty in the petitioner's case and dispose of the Probate Case accordingly.
Suhas Chandra Sen, J.: Banamali Das died on or about October 13, 1984. He left behind a Will by which he appointed his son Subrata Das the sole executor of Will. The petitioner on about 1.7.1988 applied for Probate (Probate Case No. 191 of 1988) before the District Delegate at Alipore. In the Will, the widow of Banamali Das, Sm. Uma Das has been named as the sole beneficiary-cum-legatee. The petitioner along with his application made an affidavit of assets showing the valuation of the movable assets as Rs. 4,11,011/- The value of the immovable property located at 18/3, Ballygunge Circular Road, Calcutta, was shown at Rs. 2.80 lacs. Subsequently, the petitioner filed a fresh report of valuation by a Chartered Valuer who valued the immovable property at current market value of Rs. 5,67,194/-. The Probate application could not be taken up and disposed of because no valuation report was sent by Probate Deputy Collector. This application had to be made because the delay was causing great prejudice to the petitioner and his mother who was the sole beneficiary-cum-legatee. It has been stated in the petition that Sm. Uma Das, the widow was lying ill and was in financial distress.”
2. Since the respondent No. 2 was not showing any sense of urgency in the matter inspite of repeated applications:, the petitioner made a prayer for grant of Probate on the basis of depositing probate duty on self assessment. The petitioner thereafter was compelled to take a further application to the respondent No.2, the Probate Deputy Collector to finalise the valuation of the assets. But no action has been taken by the respondent No.2, the Probate Deputy Collector was most unfortunate. The petitioner has stated that the Fixed Deposits standing in the name of the deceased cannot be utilised by the widow, she is in very difficult financial condition because of total inaction on the part of the Probate Deputy Collector.
3. The petitioner has: come to know of the• judgment of the Supreme Court in the case of P.M. Ashwathnarayana Setty and Others vs. State of Karnataka and Ors., M/s. Lavina Mansion vs. State of Karnataka; A. Abdul Rahim Sherif and Ors. vs. State of Karnataka and Ors., G. Ramiah vs. State of Karnataka, The City Municipal Council etc. etc. vs. State of Karnataka, State Bank of India vs. State of Rajasthan, Bank of Baroda etc. vs. State of Karanataka, S. Mohmood Iqbal and Ors. vs. State of Karnataka & Ors. and State of Mahashtra vs. Mrs. Jyoti Nikul jariwala & Ors. and Dr. Prafulla Chandra and Anr. vs. State of Karnataka, where the Supreme Court held that in the State of Maharastra the Probate Duty cannot exceed the upper limit of the Court fees fixed by the Statute.
4. The petitioner has now made an application to pay the maximum court fee payable under the West Bengal Court Fees Act, 1970 being the amount of Rs. 10,000/-.
5. The petitioner has contended that in so far as the West Bengal Court Fees Act has laid down an upper limit of Rs. 10,000/-. Hearing of suit and no upper limit has been laid down for payment either for Court fee in respect of probate duty, the provision of the West Bengal Court Fees Act were ultra vires the Constitution and must be struck down.
6. Since the constitutional validity of the Statute has been changed notice was sent to the Advocate General, West Bengal.
7. The aforesaid judgment of the Supreme Court on which reliance has been placed by the petitioner is squarely applicable to the facts of the instant case. West Bengal Court Fees Act, 1970 in Schedule-l has laid down a table of ad valorem fees leviable on the institution of suits. There is however an upper limit if a maximum fee of Rs. 10,000/- whereas there is no upper limit for Court fee on Probate of a Will or Letters of Administration with or without Will.
8. Mr. Ghosh, Advocate, on behalf of the State argued that the Supreme Court in that very judgment did not strike down the levy of unlimited court fees by the State of Karnataka and Rajasthan but merely gav
