The main legal point established in the judgment is the interpretation of the categories of property exempt from duty under the Court Fees Act, 1870, and the application of these categories to the case.

Ralph Benson, Offg., C.J.

1. In this case one Manavala Chetty prayed for Letters of Administration in respect of property standing in the name of his deceased father, Emberumanar Chetty, but forming the joint ancestral property of the undivided Hindu family of which, the petitioner and his late father were the only members. He stated that though his fathers share in the property passed to him by survivorship, he was obliged to take out Letters of Administration because part of the property consisted of shares in certain companies which in accordance with their articles of Association, refused to recognise his title to the shares unless he obtained such letters. He claimed to be exempt from payment of stamp duty on the Letters on the ground that his father was in possession of the property and held it as manager of, and trustee for the family. The learned Judge who heard the application decided that Letters of Administration could be granted only on payment of the ordinary duty. Against this decision this petitioner appeals.

2. Section 191(1) of the Court Fees Act, 1870, as amended by Act XI of 1899, provides, that "no order entitling the petitioner to the grant of Probate or Letters of Administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the third schedule; and the Court is satisfied that the proper fee has been paid" on such valuation.

3. That form consists of an affidavit with two annexures, in one of which, Annexure A, is to be specified the property and credits of the deceased, and in Annexure B is to be set forth the items which the applicant "is by law allowed to deduct." Among these items are "property held in trust not beneficially or with general power to confer a beneficial interest, and other property not subject to duty." The question is, whether the property for which the petitioner seeks Letters of Administration can be said to come under either of these categories, and, if so, whether wholly or partially. The petitioner contends that the property was trust property in the hands of the deceased; and he relies on the decisions in the cases of In the goods of Pokurmull Augur Wallah 23 C.k 980 and Collector of Kairu v. Chunilal 29. B.k 161 and also on two unreported decisions of this Court. It is to be observed that in the Calcutta cases there was no argument and the decision proceeded on a statement drawn up by the taxing officer in which great stress was laid on the fact that under the Mitakshara Low (as administered in Bengal) "an undivided co-parcener cannot dispose of his share in the joint property, unless in case of necessity without the consent of his co-parceners." In neither the note of the taxing officer nor in the order of the Court, is there any reference to the words "not beneficially or with general power to confer a beneficial interest" which follow the words "Property held in trust," in Annexure B. In the case of Collector of Kairu v. Chunilal 29. B.k 161 the chief question considered was whether the limited grant sought for in that case could be granted at all. The character of the property as trust property was not discussed in the judgment, but was held to be concluded by the decision in In the goods of Pokurmull Augur Wallah 1 C.W.N. 31. In neither of the unreported cases in this Court was the question argued. In the earlier of them In re T. Swaminatha Aiyar (deceased) the question was raised by the taxing officer in a "note for order" in which he referred to In the goods of Pokurmull Augur Wallah 1 C.W.N. 31 as supporting the contention that the ancestral joint property was held by the deceased as trust property and, therefore, not liable to duty on taking out Letters of Administration, and the learned Chief Justice accepted the suggestion of the taxing officer. In the latter case, "no note for orders" is forthcoming, but Wallis, J. seems to have followed the precedent "In re Swamina