- (1.) THIS is an appeal under Section 6-A of the Court Fees Act.
(2.) ONE Bhagwan Das executed his last will and testament on 22nd Febru ary 1965. He died on 14th April 1968. The will named the appellant Kali Cha-ran as the executor. The executor ap plied for the grant of probate to him. In the application he mentioned that the property involved in the will is a Dharamshala belonging to a charitable trust established in 1912 and by the said will the testator laid down a scheme of management in respect of the said trust and that no court fee is payable there for. In the Schedule A attached to the application, the valuation of the trust property was given as Rs. 80,000 and in Schedule B the details of liability in the said trust property was mentioned as Rs. 11515-90. The applica tion for probate was contested by the respondents. One of the grounds taken was that the appellant was liable to pay court fees for the application on the basis of the valuation of the property involved in it, i. e. Rs. 68,500. On this, the court framed an issue and came to the conclusion that the appellant was liable to pay Rs. 2588.75 as court fee under Article 11 of Schedule I of the Court Fees Act (hereinafter referred to as the Act) and the valuation of the property was fixed at Rs. 66,500. Hence this appeal. Section 19-1 of the Act pro vides that no order entitling the peti tioner 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 the valuation of the property in the form set forth in the Third Schedule and the court is satisfied that the fee men tioned in entry No. 11 of the First Sche dule has been paid on such valuation. This section itself does not lay down any principles to determine what are the assets and liabilities of the deceas ed; that has to be determined in accord ance with the general law. In the pre sent case it is agreed between counsel that the deceased was the trustee of a charitable trust and that the will ex ecuted by him exclusively related to this trust property. In the will he laid down a scheme of management includ ing the provision for successor trustees. It is, clear that the testator cannot claim any personal interest in the property which was governed by a public trust. The property appertaining to the trust not being his assets, could not form the basis of valuation for the purpose of payment of court fees for the applica tion for probate, under Article 11. Under that article court fee has to be paid in accordance with Article 19-1.
(3.) THE position that trust pro perty is not liable to be included in computing the valuation of the proper ties upon which court fee has to be paid is corroborated by the Third Sche dule. Annexure A of that schedule deals with valuation of moveable and Immovable properties of the deceased, while Annexure B is the schedule of debts, etc. One of the items mentioned in Annexure B is: "Property held in trust not bene ficially or with general power to con ifer a beneficial interest." This would also show a legislative intent that trust property is not to be considered an asset of the deceased. Further, Section 19-D also points in the same direction. It provides that the probate of the will, or the letters of administration of the effects, of any person deceased, will be valid and available by his executors and administrators for recovering, transfer ring or assigning any movable or im-moveable property whereto the deceased was possessed or entitled, either wholly or partially as a trustee, notwithstand ing the amount or value of such pro perty is not included in the amount or value of the estate in respect of which court fee was paid. Thus, even in a case where the estate of the deceased consists of his personal properties and also trust properties and though no court fee may have been paid on the trust properties, yet the probate would operate in regard to trust properties as well. These provisions clearly show that a person is not required to pay court fee for an application for probate in respect of trust properties. It is im material as to what the extent of trust property is involved in a particular will. In the present case the entire pro perty which was subject-matter of the will related exclusively to a trust; therefore no court fee was payable. ;