- (1.) The Court: This is a testamentary suit in the goods of one Phani Bhusan Sinha, generally known as P.B. Sinha, deceased. Smt. Purnima Sinha, wife of the deceased has claimed to be the executrix and beneficiary under the Will. She is the propounder herein. Her only issue, Sri Debungshu Sinha is the caveator. At present the family consists of the widow (the propounder, the only son (the caveator), daughter-in-law and the sole grand-daughter of the deceased. The property under the Will consists of a three-storied house within a total land area of 3 cottahs and 9 sft. more or less.
(2.) One day after the death of the deceased, the Will came out from the custody of the propounder who, in turn, filed an application for grant of probate of the Will in this Court. Special citation was served. The caveator lodged the caveat and, thereafter, filed an affidavit in support of such caveat. Thus, it become contentious cause. The following issues framed hereunder: ISSUES 1. whether the signature of the executor under the Will is genuine or not? 2. whether there is any surrounding circumstances available to refuse the Will? 3. what reliefs the party or parties are entitled to? ADDITIONAL ISSUE 1. whether the propounder has paid the appropriate ad valorem Court fee or not on the assets?
(3.) Since the additional issue is related to maintainability of the proceeding let the same be decided by me at first. The learned counsel for the caveator raised a dispute that under section 32 of the West Bengal Court Fees Act, 1970 no order entitling a person to grant a probate or Letters of Administration shall be made upon an application for such grant unless the petitioner pay the Court fees as per valuation of the property in the form set forth in Schedule III therein. The Court is to be satisfied that the fees mentioned in No. 10 of Schedule I has been paid on such valuation. Schedule III speaks about the market valuation of the assets etc. In determining such valuation for the purpose of payment of Court fees the date of application is to be counted as appropriate date but not the date of death as per Schedule I Article 2 of the Court Fees Act. The Court Fees Act is not the statute introduced for making order but it only shuts out the grant of probate or Letters of Administration so long the party claiming it, fails to disclose the valuation in respect of estate of the deceased and to pay the appropriate Court fees on it. He has relied upon paragraph 13 of the judgment reported in AIR 1965 All 211 (Smt. Rajeswari Misra & Anr. v. Markandeshwar Mahadeo & Ors.). According to him, section 19(h) and sub-clause (ii) of the West Bengal Court Fees Act stipulate that High Court shall cause notice of the application to be given to the Chief Controlling Revenue Authority for the area in which the property situates when such application is made before the High Court. No order can be made without ascertaining such position.;