- (1.) The proper court-fee payable on the Probate of a Will for which application has been made by one Rai Bahadur Mangharam Wadhwani of Bombay was considered by Ramaswami, J. on the original side of this Court and in view of the difficulty, in the interpretation of the relevant provisions of the Court-fees Act and the importance of the question raised, the learned Judge has referred it to a Bench for decision.
(2.) One Gurdasmal, who had acquired a large fortune consisting of assets in India as well as in South Africa died on 13-3-1953 leaving a will dated 9-1-1953. Under this will he appointed five executors for the administration of his Indian properties with which alone we are here concerned. One of these Indian executors Rai Bahadur Mangharam Wadhwani filed an application for probate of the Will on the original side of this Court on 27-8-1954. The original side office returned this application 'inter alia' on objection that the affidavit of assets which was appended to it was not in proper form. The applicant carried out some corrections and re-presented it. The office, however, was not still satisfied that the application was in proper form and as the applicant contested this position, the unnumbered application was placed before Ramaswami, J. for orders. The other objections raised have been decided by him and are not before us; on one point, however, the learned Judge felt difficulty and for that reason directed the papers to be placed before a Bench for final decision. This is set out in the order of reference in these terms: "The levying or non-levying of duty on amounts already collected before the filing of the Probate application and which an executor is entitled to receive without the intervention of Court is a matter of considerable importance and nicety. Therefore, this may be posted before a Bench for an authoritative decision as this matter is likely to occur in future also".
(3.) In the application as it finally emerged, and as it was when re-presented, the item relevant to the present context is item No. 9 of schedule A which consists of 'other property not comprised under the foregoing heads'. This is composed of ten items, nine of which are debts due to the testator from nine named debtors. Eight of these debts carry interest ranging from 5 to 6 per cent, per annum. The total principal amount of these claims is Rs. 12,03,853-3-0. On the date of the testator's death the amount of interest accrued due on the total of these loans amounted to Rs. 12,192-1-6. On the date of the application for probate, that is, on 27-8-1954 the total interest due on the aggregate of these out standings was Rs. 1,06,027-3-9. Out of this sum, the executors had before the application for probate collected Rs. 85,297-3-9 from several debtors. The applicant for probate set out the value of the principal amount 'inter alia' of these items of out standings as also the total amount of interest which had accrued due upto 27-8-1954. This was certainly in accordance with the form prescribed. But he went on to add a new schedule being the receipts by him of interest from the eight debtors totalling Rs. 85,297-3-9 claiming that no court-fee was payable on this sum. It is the correctness of this contention that is the subject-matter of this reference.;