Bhaskar Bhattacharya, J. - (1.) This application under Article 227 of the Constitution of India is at the instance of Joint Executors in proceedings for grant of probate and is directed against Order No. 57 dated April 25, 2004 passed by the learned District Delegate, Burdwan in Misc (Will Probate) Case No. 38 of 1996 thereby directing the petitioners to pay further Court-fees of Rs. 40,000/- for the purpose of getting probate of the Will or to wait for valuation report from the Collector. Burdwan regarding the property mentioned in item No. 2 of the schedule of the Will.
(2.) The following facts are not in dispute: (a) The petitioners as executors filed an application under section 276 of Indian Succession Act praying for grant of probate of the last Will and testament of one Promotho Nath Saha. Such application was filed with copy of the original Will annexed and it was registered in the Court of the learned District Delegate at Katwa, Burdwan and numbered as Misc (Will Probate) Case No. 38 of 1996. (b) The near relations, viz. Smt. Malati Saha, wife of Nandadulal Saha (since deceased) and Kakali Saha, daughter of Nandadulal Saha (since deceased) duly appeared and recorded their "no objection" to the grant of probate. The learned Court by Order No. 29 dated May 25, 2001 recorded such "no objection" to the grant of probate by those near relations of the deceased and fixed July 12,2001 for steps for obtaining valuation report from the Collector, Burdwan. On August 9, 2001 requisites for valuation was filed and on 13th September, 2001 notice was issued upon the Collector, Burdwan for submitting valuation report to by December 11, 2001. (c) On December 11, 2001 the Collector, Burdwan could not send the valuation report to Court and as such, the petitioners filed application praying for payment of maximum Court-fees, which at that time was Rs. 10,000/-. The said application was adjourned and was fixed for hearing on May 7, 2002. (d) By Order No. 35 dated May 7,2002, the application praying for deposit of maximum Court-fees on the application was allowed. The learned Court was pleased to grant liberty to the petitioners to deposit the Court-fees as prayed for. (e) In terms of the leave so granted by the learned Court, a sum of Rs. 10,000/- was deposited by way of Court-fees. By the said order, the filing of Court-fees of Rs. 10, 000/- was accepted. (f) By Order No. 52 dated March 25,2004, the learned Court was pleased to allow the petition for grant of probate in favour of the petitioners/ executors on payment of the requisite stamp-duty (should be Court- fees) admissible on the date of issue of the same in respect of item No. 2 of the schedule as mentioned in the petition and affidavit. An affidavit was affirmed stating that if it was found subsequently that amended West Bengal Court-fees Act applied in respect of the petition filed in 1996 and if the petitioners are directed to put in such enhanced Court- fees, they would pay the same without any objection. The said affidavit was filed in view of the Order No. 52 dated March 25, 2004 wherein the learned Court was pleased to allow the petition for probate on payment of the requisite Court-fees admissible on the date of the issue of the same. An application was filed on April 17,2004, stating therein that in view of the West Bengal Court-fees Act, 1970 (then in force) a sum of Rs. 10,000/- was already paid as Court-fees prior to coming into operation of the West Bengal Court-fees (Amendment) Act, 2002 and thus, no further Court-fees was payable by the petitioners upon grant of probate. (g) By Order No. 57 dated April 27,2004, the learned Court below rejected such application and directed the petitioners to file deficit stamp-duty (ought to be Court-fees) of Rs. 40, 000/- or they might wait for valuation report from the Collector, Burdwan regarding the property as mentioned in item No. 2 of the schedule of Will executed by Promotho Nath Saha.
(3.) Being dissatisfied, the executors have come up with the present application under Article 227 of the Constitution of India.;