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Judgment
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 to a Bench for decision. One
Gurdasmal, who had acquired a large fortune consisting of assets in India as well as in South Africa died on 13th March, 1953 leaving a will dated
9th January, 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 Raibahadur Mangharam Wadhwani filed an application for probate of the Will on the Original Side of
this Court on 27th August, 1954 The Original Side office returned this application inter alias 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 amount 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 Beach for an
authoritative decision as this matter is likely to occur in future also.
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 Sch. 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 percent per annum. The total principal amount of these claims is
Rs. 12,03,653-3 0. Of the date of the testator''s death the amount of interest accrued due on the total of these loans amounted to Rs. l2,192-1-6.
On the date of the application for probate, that, is on 27th August, 1954 the total interest due on the aggregate of these outstandings was Rs.
l.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 outstandings as also the total amount of interest which had accrued
due upto 27th August, 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. 85297-3-9 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.
The question has to be decided on the proper interpretation of the relevant provisions of the Court-Fees Act to which we shall immediately
refer, But before doing so, we might briefly set out the broad contentions of the learned Counsel for the applicant and of the Government Pleader
on behalf of the State. For the applicant it is urged that the title of the executor is under the will and as Probate when granted relates back to the
death of the deceased, what the Court has to consider is ""what is the property that pasted to the executor under the will at the moment of the
testator''s death""? His property at that date consisted of the principal amounts, with the interest of Rs. 12192-1-6, which had accrued due and the
rest of the interest which had been collected was income which accrued subsequent to the owner''s death and therefore from the property whose
title was vested in the executors immediately on death, and on this reasoning it is claimed that no court-fee is payable on this Rs. 73105-2-3 which
represents the income of the testator''s. assets which accrued due after they vested in the executor. Alternatively it is urged that even assuming that
this interest was constructively and fictionally deemed to be part of the estate of the deceased, still as they had been collected without the
imprimatur of the Probate, and therefore without the Court sanctioning or authorising this collection, they were not assets in respect of which the
applicant was seeking probate and he could therefore exclude these items in computing the value of the estate for the purposes of court-fee
payable.
On the other hand, the contention advanced on behalf of the State Was that for the calculation of the court-fee payable no difference is made
between Probates and Letters of Administration and the relevant and crucial point of time at which the value of the estate of the deceased should
be calculated was the date of the application for Probate or Letters and if on that date this interest could be deemed to be the property of the
deceased or whose Collection would be validated or retrospectively authorised by the Probate or Letters, court-fee was payable on this sum also
not withstanding-that this increase in value has taken place after the testator''s death and even at a time when the corpus of the properly Was
vested in the executors.
We shall now examine these contentions in the light of the provisions of the Court Fees Act. S. 19-I of the Court Fees Act which was inserted
by Act XI of 1899 runs in these terms:
No order entitling the petitioner to the grant of probate or letters of administration shall fee 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 fee
mentioned in No. 11 of the first schedule has been paid on such valuation.
No. 11 of the first schedule which is referred to here prescribes for ""probate of a will or letters of administration'''' varying percentages
depending on ""the amount or value of the property in respect of which the grant of Probate or Letters is made."" We have therefore to refer to Sch.
3 for determining the amount or value of the property in respect of which the grant is made. This schedule which was introduced along with S. 19-I
by the Amending Act of 1899 prescribes the form of valuation ""with such modifications as may be necessary."" The form consists of two parts, an
affidavit in three paragraphs and an annexure which is made part of the affidavit. Para 1 of the affidavit requires the applicant to state on oath that
he has truly set forth in Annexure A to it,all the property and credits of which the above named deceased died possessed or was entitled to at the
time of his death and which have come or are likely to come.
To the depondent''s hands. Para 2 provides for Annexure B containing a schedule of debts and funeral expenses etc., which the executor is
entitled to deduct for computing the value of the net estate. In paragraph 3 the deponent has to declare that the said assets that is those set forth in
paragraph 1 above exclusive of those included in Annexure B, but, inclusive of all rents, interest, dividend and increased values since the date of
the death of the said deceased are under the value of......."" stating the amount. It would therefore appear that not withstanding that in paragraph 1 it
is only the assets of which the deceased died possessed and which have or are likely to come to the hands of the executor that are mentioned-(in
the present context it would mean the principal sum of Rs. 12,03,653 plus the interest accrued due on the date of the death, namely, Rs. 12,192-
1-6) still by paragraph 3 the valuation is, so to speak pushed forward and is to be as on the date of the application, taking in to account ""the rents,
interest, dividend and increased values which have accrued due or resulted"" after the date mentioned in paragraph 1. The idea denoted by
paragraph 3 is brought out by the details which are required to be stated in Annexure A-entitled ""valuation of the moveable and the immoveable
properties of the deceased,"" containing detailed heads under which the assets have to be enumerated. In regard to property in Government
securities the form requires the description and value at the price of the day-that is, the day on which the affidavit is sworn to and the application is
filed; ""also interest separately calculating to the time of making the application."" Similarly, in regard to lease hold property there is a note which
requires the applicant to state the number of years'' purchase, the profits, rents are estimated to be worth and the value of such, inserting separately
arrears due on the date of death and all rent received or due since the date to the time of making the application.
So in regard to the property in Public Companies, that is, in shares, the deponent is required to state ""the particulars and the value calculated at
the price of the day; also the interest separately calculating it to the time of making the application."" Policies of insurance upon life, money lent out
on mortgage and other securities, such as bonds, mortgages, bills, notes and other securities for money under which the assets of the deceased
now under controversy would fall, the form requires the deponent to state ""the amount of the whole; also the interest separately calculating it to the
time of making the application.
It is in the light of these provisions that the question has to be determined. On the one hand there is the principle formulated in paragraph 1 of the
affidavit prescribed by schedule III which refers to the value of the assets of the deceased which has or is likely to come to the hands of the
applicant. In view, however, of the third paragraph of the affidavit effect cannot be given to this principle and we have necessarily to take the value
of the estate as at the date of the application for Probate as the governing consideration for determining the court-fee payable.
Further origin and history of the provisions to which we shall be adverting in an instant make it clear that it is the value at the date of the
application that governs duties such as is levied by Entry II of the first schedule which is in the nature of a probate duty. The original Court Fees
Act, VII of 1870, did not contain any elaborate provision regarding duties on Probate. Item II of the first schedule laid a fee of 2 percent on ""the
amount or value of the property in respect of which the Probate is granted"", and S. 19 exempted certain documents from the payment of court-
fees and included among them by Cl. (viii), was ""Probate of a will where the amount or value of the property in respect of which the Probate is
granted does not exceed one thousand rupees."" Act XIII of 1375 was an Act passed to amend the law relating to Probates and Letters of
Administration. It introduced S, 277-A into the Indian Succession Act of 1865 entitling the High Courts in British India to grant Probates or
Letters of Administration intended to have effect throughout the whole of British India, that is, in more than one Province and executors were
directed in such cases to include in the inventory the effects of the deceased situate in each of the Provinces stating the value of such property
situated in each Province. The enactment provided that ""the Probate or Letters of Administration shall be chargeable with a fee corresponding with
the entire amount or value of the property affected thereby wheresoever''s situate within British India."" This Act also inserted a new Chapter,
Chap. III-A into the Court Fees Act, 1870. The heading of this Chapter ran ""Probate. Letters of Administration and certificates of administration.
The present Ss. 19-A to 19-G of the present Court Fees Act were contained in this Chapter. There was however no amendment to entry 11 of
the first schedule and the position therefore remained as it was when Act VII of 1870 was passed. The next relevant enactment is Act VI of 1889;
which made amended provisions for the exhibition of inventories by executors and administrators showing the assets which had come into their
hands and the manner in which they had been disposed of-by way of amendments to the Indian Succession Act and the Probate and
Administration Act, but so far as court-fees were concerned though certain changes were made, they are not relevant to the present context and
the position as it stood under Act VII of 1870 remained unaltered. The variation in the language of the relevant provision ""the property in respect
of which the grant of Probate is made"" from ""the property in respect of which the Probate shall be granted'''' which occurred in the Act of 1870,
effected no difference in the result. If the matter rested on these provisions, the duty would have to be calculated on the basis of the value at the
date of the grant in the light of the English decisions we shall be referring to presently.
Finally we have Act XI of 1899 an Act to further amend the Court Fees Act of 1870. The object of this amendment is thus stated by
Venkatasubba Rao J. in In the In Re: In The Matter of The Estate of C. Govindaswamy,
Duty was being collected not on the application for but on the grants of Probate or Letters of Administration and in certain cases it was found that
persons were satisfied by merely obtaining an order on their petitions-without actually taking out Probate or Letters of Administrations. It was with
a view to guard against this evasion that S. 19-I was inserted.
This enactment introduced Ss. 19-H to 19-J as they exist at present into the Court Fees Act and also brought in the affidavit in the third
schedule and the annexure thereto for the calculation of the value of the fees payable.
There is no doubt that the provisions of Chapter III-A of the Court Fees Act are in great part a reproduction of the provisions of the English
enactments relating to the levy of Probate duties which were in force in 1899. The history of the Probate duty in England upto that date is thus
summarised in Tristram and Coote''s Probate Practice, 19th Edn. at pages, 182-183 :
From very early times the personal representative had been placed under an obligation to make disclosure of the assets falling to him for
administration. But with the introduction of the Probate Duty in England as a tax payable to the National Exchequer first (1694), as a fixed 5 $ duty
on grants of representation in cases where the personal estate to be covered by the grant exceeded in value the sum of � 20, and later (1799) as
a duty regulated in amount according to the value of such personal estate, a declaration showing the value of this property became an essential
preliminary to the issue of the grant. And it was to regularize the position in this connection that S. 38 of the Stamp Act of 1815 provided that
grants of representation were not to issue in the absence of an affidavit disclosing the value of the property to be covered by the grant, the reason
of this affidavit being, as the Act in fact explains, to secure the payment of the proper duty. This affidavit, it may be here added, is forwarded by
the Probate Registry to the Commissioners of Inland Revenue. - Subsequently to the issue of the grant under the authority of S. 157 of the
Supreme Court of Judicature (Consolidation) Act, 1925. There had been similar directions (all now repealed) in S. 39 of the Act of 1815, above
referred to, and in S. 93 of the Court of Probate Act, 1857, as amplified by S. 10 (2) of the Customs and Inland Revenue Act, 1880.
At page 183 it is observed as follows:
Under the provisions of the Stamp Act, 1815, the Probate duty was, in the first instance, made payable on the gross value of the personal property
falling with in the operation of the grant and the affidavit of value, as originally contemplated by S. 38 of that Act, did no more than disclose the
gross value of such property. An affidavit in this form continued in use, until, by the Inland Revenue Act, 1868, S. 7, power was given in arriving at
the initial value on which the probate duty was payable, to deduct mortgage debts on leaseholds forming part of the estate of the deceased. But
excepting for this small alteration in practice the same form of affidavit remained in use until, in the year 1880, provision was made, by the Customs
and Inland Revenue Act, 1880, S. 10 for detailing the property referred to.
In the following year, by the Customs and Inland Revenue Act, 1881, the Probate duty was remodeled. Certain provisions were made for the
deduction of debts and funeral expenses, and, at practically at 3 percent, flat rate, the duty was thenceforward made payable, at the outset on the
statutory not value of the personal property to be covered by any grant issued on or after the 1st June 1881, regardless on the date of death of the
deceased.
To lead to all other English grants of representation on and after the 1st June 1891, no matter when the death occurred, a special form of Inland
Revenue affidavit was provided (Form A) disclosing not only particulars of the property to be covered by the grant, but particulars of the debts
and funeral expenses deducted in arriving at the net estate. These two forms of Inland Revenue, affidavits A and B are still in use to lead to grants
of representation in all cases where the death occurred before the 2nd August, 1894.
Section 19I with which we are concerned is a substantial reproduction of S. 38 of the English Stamp Act of 1815. The relevant portion of this
latter provision runs thus: ""no ecclesiastical Court or person shall grant Probate of the will or Letters of Administration of the estate and effects of
any person deceased without first requiring and receiving from the person or persons applying for the Probate or Letters, of Administration an
affidavit or solemn affirmation that the estate and effects of the deceased for or in respect of which the Probate or Letters of Administration is or
are to be granted exclusive of what the deceased shall have been possessed of or entitled to as a trustee for any other person or persons and not
beneficiary and without deducting anything on account of the debts due and owing from the deceased, are under the value of a certain sum to be
therein specified to the best of the deponent''s or affirmant''s knowledge, information, and belief, in order that the Probate or Letters of
Administration
The schedule to which the Act referred provided for Probate duties in this manner: ''Probate for a will and Letters of Administration with a will
annexed to be granted where the estates and effects for or in respect of which such Probate or Letters of Administration or the like respectively
shall be granted or expended or where of such inventory shall be exhibited and recorded exclusive of what the deceased shall have been
possessed of or entitled to as a trustee for any other person
and the rate was prescribed. It may be mentioned that though S. 38 provided against any deduction of debts in the computation of the value of the
estate of the deceased, S. 51 of the Act made provision for a rebate or refund of duty attributable to the debts payable by the deceased and which
the executors had paid within 3 years from the date of the death of the deceased. The identity of the language used in the Court Fees Act of 1870
and 1889 and the underlined portion of the above, cannot be missed.
The machinery for collection under went a change and by S. 10 of the Customs and Inland Revenue Act of 1880 an account was required to
accompany the affidavit on applications for Probate. It enacted that along with the affidavit required by S. 38 of the Stamp Act of 1815.
there shall be delivered an account of the particulars of the personal estate for or in respect of which the Probate or letters of Administration is or
are to be granted and the estimated value of such particulars.
which words are to be found in our Act. Sub-S. 4 of this section required that the account to be delivered in pursuance of that provision-
should be in accordance with such form as maybe prescribed by the Commissioners of our Majesty''s Treasury. By the Customs and Inland
Revenue Act of 1881, 44 and 45 Vict. Ch. 12 the administration of these Probate duties was placed under the care and management of the
Commissioners of Inland Revenue and the State made a change in the mode of collection. S. 27 enacted that after the 1st of June 1881 in
substitution of the duties upon Probate of wills or Letters of Administration:
there shall be charged and paid on the affidavit to be required and received from the person applying for probate or Letters Vol. 69-63 of
Administration in England the Stamp duties as here in after provided.
The form to which the affidavit was to conform was by S. 29 of the Act left to be prescribed by ""The Commissioners of our Majesty''s
Treasury,"" and the Commissioners of Inland Revenue were directed to provide forms of affidavit stamped to denote the duties payable under the
Act. This was the origin of the Inland Revenue Affidavit, which with variation has been in force in England even after the Finance Act of 1894.
There were other provisions in it corresponding to Ss. 19-A to 19-H of the Court Fees Act to which it is unnecessary to refer. We have not been
able to obtain the exact form of the affidavit prescribed by the Commissioners of Inland Revenue under the Customs and Inland Revenue Act of
1881 and therefore have not been in a position to verify whether the comment of Kinney at page 502 of his Edition of Henderson on Succession,
5th Edn., is justified. The learned Editor says:
Schedule III to the Court Fees Act gives the form of affidavit to be sworn to by the applicant and it will be noted that this includes rents and
dividends accrued due since the date of death. This differs from the procedure in England and the matter would appear to require reconsideration
of the legislature, as to my mind it is not accurate to say that incomes accrued due since the date of death are assets of the estate as at time of
death.
But so far as we have been able to gather from the text writers and the authorities-to this we shall advert in due course--there does not appear
to be any difference between the practice in the two countries. We might in this connection refer to Dixon, Law and Practice of Probate, 3rd Edn.,
at page 566, where he set out the form used in the principal Probate Registry, which appears exactly a replica of Annexure A to Sch. III. Similarly
in the argument of Sir Frank Kelly in Attorney General v. Partington 158 E.R, 964, to which we shall be referring in a while, reliance was placed
on the practice under the Act of 1815, where under ""rents, interest and dividends from the date of the death of the testator, to the date of the grant
were included in the estimate of value of the property"" upon which duty was paid.
It is, therefore, apparent that the framers of the Court Fees Act including the Amending Act XI of 1899 intended to introduce substantially the
provisions regarding probate duties as they obtained in England under the Stamp Act of 1815 and the Customs and Inland Revenue Act of 1881.
The decisions, therefore, of the English Courts on the interpretation of these enactments could use-fully be referred to for the construction of the
corresponding Indian provision. The earliest relevant decision on the topic is Richard v. Evans 10 Q.B.D. 174=116 E.R. 181. (1), decided in
1847: Letters of Administration had been granted on the applicant filing an affidavit that the value of the property of the deceased passing to the
administrator was under �. 100. However certain buildings which had been erected on the property of the deceased after his death and before
the application for letters with the result had been omitted to be valued by the applicant so that the value of the property as on the date of the
application was much higher than had been granted in the application. The question was whether the administrator could claim title to the property,
the objection raised being that as insufficient duty had been paid the administrator could not assert his title. Counsel for the administrator agreed
that it was the value of the assets of the deceased as on the date of the grant that was material but he contended that the buildings subsequently put
up being additions could not subject the estate to a further duty. The Court decided against the administrator, Demman, C. J., saying,
the improvement is inseparably part of that which the deceased had and of which administration was granted and the Court enter into the
consideration of the value fat the time of his decease.
The next case we would refer to is Attorney General v. Partington 158 E.R. 964. One Mrs. Shard, a widow died intestate in 1819 leaving
personal estate to a considerable extent, part of which consisted of bank annuities of the face value of �. 16000 carrying interest at 4% per
annum. Her next of kin did not apply for Letters of Administration and the solicitor for the treasury took out administration for the estate. The
statutory administrator received considerable amounts of dividends in respect of these annuities. Isabel Cook, the wife of one Ellis Cook, who
claimed to be the next of kin of Mrs. Shard applied in or about 1823 to the Crown to recognise her claim. But this was not done and she died in
1825 without taking any steps in that regard. Her husband, Ellis Cook who was her next of kin himself died in 1830 without taking steps to
recover the money from the hands of the Solicitor for the Treasury. After the death of their parents the children of Mr. and Mrs. Cook took
proceedings through one Mr. Partington to recover Mrs. Shard''s assets from the Solicitor for the Treasury and succeeded in obtaining a decree
for the sums received by the defendant including interest at 5%. The question then arose as regards the Probate duty payable by Mr. Partington
and whether interest which had accrued due since the date of the death of Mrs. Shard a portion of which had been collected by the Solicitor for
the Treasury, the rest being the interest payable by the latter should be excluded. The argument urged on behalf of the Crown was that by the
words of the Stamp Act of 1815 duty was payable upon the amount or value of the estate at the time of the grant of administration. When
administration was granted to Mr. Partington the estate which the Letters of Administration enable him to recover and administer consisted of a
principal sum of �. 23,884 and interest amounting to �. 34124. Sir Frank Kelly who appeared for the Crown referred to the practice requiring
all rents, interests, dividends from the death of the testator or intestate to the date of the Probate or Letters of administration to be included in the
estimate upon which duty is paid.
The argument of Mr. Lush who appeared for Mr. Partington was that the test was the value of the estate which the Ordinary could have
administered at the time of the previous owner''s death. If at the time administration were granted the value of the estate had increased, the duty
had to be paid upon the increased value. But in estimating that value no subsequent accretion could be taken into account.
Regard must be had to the value of the estate and effects at the time of death and nothing ought to be taken into account of which the intestate or
testator did not die possessed.
The decision of the Exchequer Division was in favour of the Crown, the learned Judges, Pollock. C. B, and Bramwell, B. holding that on a
proper construction of S. 38 of the Stamp Act of 1815 the duty was payable on the value of the estate at the time of the grant of Probate or
Letters of Administration. The decision was taken up on appeal to the Exchequer Chamber where it was affirmed, Willis, J. delivering the judgment
of the Court, said:
the interest is a strict accessory to the estate of the intestate. It arose out of the estate as its produce. It followed the estate in point of property.
Neither the principal nor the interest could be recovered without the Letters of Administration, and when granted the Letters of Administration in
effect included both, for they established the right to the one as accessory to the other. It is plain on the language of S. 38 of the Stamp Act of
1815 that the interest equally with the principal is the estate or effects for or in respect of which the Letters of Administration were granted and
therefore in terms chargeable by the Act with the Stamp duty.
This decision was affirmed on further appeal by the House of Lords, vide Partington v. Attorney General L. R. 4 H. L. 100 at 116. (1).
Dealing with the argument that the value of the estate should be calculated as at the date of the death of Mrs. Shard, Lord Chelms ford said :
The estates of the intestates at the time of their deaths, were, however, interest-bearing estates, and what the administrator became entitled to was,
those estates ascertained to have become of a certain value. I consider this question to have been settled by the case of Doe d Richards v. Evans
10 Q. B. 476.(2) because the Counsel there having quoted a passage from Gwynne on the Law relating to the Duties on Probates and Letters of
Administration which states ""that the Commissioners of Stamps require all rents, interest and dividends, from the death of the testator or intestate to
the date of the Probate or Letters of Administration to be included in the estimate upon which duty is to be paid, but that there had been no judicial
decision upon point, and that Counsel of great eminence had held a different opinion.
Lord Denman said:
The improvement is inseparably part of that which the deceased had, and of which administration was granted.
Lord Cairns said at page 122:
Whoever is entitled to the principal is entitled also to the interest as an accretion. It merges into and becomes part of the sum which has to be paid;
and the whole taken together becomes the estate in respect of which the administration is granted.
Dealing with the nature of Probate duties in England, Sir Robert Collier said, while delivering the judgment of the Privy Council in Bell v. The
Master of Equity of the Supreme Court of India L. R. 2 A.C. 560 at 565. (3) :
Probate duty in England is a stamp duty, payable on what is supposed to be the value of the property the subject of the Probate at the time it is
granted. It was said in a case of The Attorney General v. Partington by Baron Bramwell ''It was rightly said by Mr. Lush that Probate of
administration duty is a duty which attaches upon the estate and effects of the testator or intestate at the time of his death, but is to be calculated
upon the value of the estate at the time Probate or administration is granted.
To a similar effect is a passage in the judgment of the Lord in his speech in Winans v. Attorney General 1910 A.C. 27. at 40. (4), which is as
follows :
In 1815 was passed the Act 55 Geo. 3 Ch. 184, imposing an ad valorem stamp duty, which was one-half greater on Letter a of Administration
than upon the granting of Probate. In 1880, by the Customs and Inland Revenue Act, 43 Vict. C. 14, the rates for both were made uniform, and in
1881 Customs and Inland Revenue Act of that year (44 Vict. C. 12, S. 27) exempted personal estates under 100 pounds in value from payment
of Probate duty and required the stamp to be placed on the affidavit of value instead of on the grant itself.
The duty was payable on such part of the assets only as the executors or administrators could recover by virtue of the Probate or Letters of
Administration, It was not payable in respect of property which was not situate within the jurisdiction of the Court of Probate. The ad valorem duty
was accordingly fixed in the schedule to the Statute of 1815 and continued afterwards as on the value of the estate and effects for or in respect of
which the Probate or Letters of Administration were granted, and the Courts Were not to grant Probate or Letters of Administration without an
affidavit that the ''estate and effects of the deceased for or in respect of which the Probate or Letters of Administration is or are to be granted''
were under the value of a certain sum to be therein specified. The Act of 1880 required an account of the particulars of the personal estate for or in
respect of which Probate or Letters of Administration is or are to be granted and of the estimated value of such particulars to be delivered with the
affidavit.
These decisions are, therefore, authority for the position (1) that the expression. ""estate and effects of the deceased"" is not confined to the
principal sums due on debts but would also include interest, and (2) that interest which accrued due after the death of the deceased and before the
grant is also an accessory to the principal and therefore part of the estate of the deceased in respect of which the Probate or Letters of
Administration is or are granted. (3) The value on the basis of which the duty has to be calculated would be the date of the grant, but for the form
in Sch. III introduced by the Amending Act of 1899.
The only question that remains is whether it makes any difference that the executor has managed to collect a portion of this interest without
obtaining probate. This narrow point is not covered by any of these decisions, or those of the Indian High Courts to which our attention has been
drawn. In Deputy Commissioner of Singhbhum v. Jagadish Chandra Deo Dhabal Deb A.I.R-1921 Pat. 206. (1), the learned Judges rejected a
contention raised on behalf of an executor that the value of the estate as at the time of the death of the testator would determine its value for the
purpose of Art. 11 of the First Schedule of the Court Fees Act. They referred to Sch. III and the contents of the form prescribed particularly to
para 3 of the affidavit. The decision, however, does not touch the narrow point which we have set out above.
The decision of the Lahore High Court in In the goods of R. N. Clark, deceased ILR H Lah. 526. (2), is only to the effect that the value of the
estate on which court-fee should be levied under Art. 11 of the First Schedule is the date of the application for the Probate. The testator had died
on 3rd August 1929 and the application for Probate had been filed on the 29th of January 1930.The application was however returned to the
applicant who was directed to deposit the court-fee payable. This was done and the application represented on the 10th April 1931. Between the
date of the death of the deceased and the 10th of April 1931 certain dividends had been Received by the executor. The contention of the executor
was that the value of the estate should be determined as on either the date of the death of the deceased or in the alternative when the application
was first presented, that is, 29th January 1930. The extreme contention that the value should be as on the date of the death of the deceased was
repelled by Curry, J., as inconsistent with the form in the 3rd schedule read with S. 19-I. He held that Probate duty was to be levied on the value
of the estate as on the date of making the application. There were two such dates, first, 29th January 1930 when the application was first
presented and, again, 10th April 1931 when it was re-presented after the payment of court-fee. The learned Judge then referred to the office rules,
and the practice of the Punjab Chief Court under which payment of Probate duty calculated in accordance with the valuation given by in the
affidavit was insisted on before the application could be entertained and as the re-presentation with the court-fee took place only on 10th April
1931, this was held to be the proper date on which the application could be taken to have been filed. Having regard to the practice of that Court
and the rules, the question as we have formulated above was not considered by the learned Judge-
The last decision that was placed before us by the learned Government Pleader was one by the Allahabad High Court in Civil Misc. 255 of
1946 (court fee reference) 1949 All. L. J. 364. The only point decided was that the valuation was no doubt to be of the assets and liabilities as at
the death of the deceased but that the values should be as they were on the date of the application.
These decisions therefore do not assist us in deciding whether duty is payable on the interest collected before the application for Probate.
They, however, establish that in the case of a Probate duty as is levied by Art. 11 of the First Schedule of the Court Fees Act, the value of the
estate as on the date of the death of the deceased is not the criterion and that the critical date for fixing the value is in India the date of the
application for Probate or Letters of Administration.
The question has therefore to be considered in the light of the affidavit and Annexure prescribed by Sch. III. Before adverting to it, we might
refer to the decision of the House of Lords in New York Brewery Co., v. Attorney General 1899 A.C. 62. (1). There a testator of American
domicile owned certain shares and debentures in an English company registered on its London share register. At the request of the American
executors the company paid them certain dividends and interest which accrued on these shares and debentures after the death of the testator, and
transferred to them certain of the shares, etc., on the London Register. To the knowledge of the company, the executors had not obtained Probate
in England and did not intend to do so. The Attorney General filed an information against the company claiming an account and payment of
Probate duty. The Court of Appeal, and the House of Lords held that the company was liable to pay the duty. The company were held to be in the
position of executors-de son tart and so liable to the payment of the duty and penalties under S. 37 of the Stamp Act of 1815. Though not a direct
decision, it clearly indicates that the mere fact that an executor has been able to obtain payment of an interest which accrued to him after the date
of the death of the deceased is not to be excluded from the computation of the value for the purpose of Probate duty. It would be seen that if the
words in paragraph 3 of the affidavit were read into paragraph 1, this conclusion would be irresistible. Paragraph 1 would then read:
The property and credits of which the deceased died possessed or was entitled to at the time of his death, reclusive of all rents, dividends, and
increased values since the date of the death of the deceased and which have come or are likely to come to my hands are under the value of...
Those world could lead to no other conclusion than that the interest received by the executor after the date of the death of the deceased and
before the application would have to be included in the affidavit of assets and court fee paid on the same. Nor can there be any injustice in this
construction for the Probate that is granted clothes the executor with legal authority to receive the payment, and when Probate has been granted it
is on that alone that the executor can base his legal title to the assets of the deceased and moreover the court-fee is on the same basis whether the
application is for a Probate or for Letters of Administration. Further if the Probate duty in its origin has been a duty laid upon property which was
within the jurisdiction of the Ordinary and which he would have administered, it stands to reason that it would be leviable upon these amounts also
which the executor administers under the Probate. In Blackwood v. Queen (1) Probate duty has been described as a tax payable by as executor
as a condition precedent on the issue and efficacy of a Probate necessary for his action, out of the estate, while it is in bulk and before distribution
or administration has commenced (at page 97). It is, therefore, payable on all the property which he is called on to administer, the value being
under the Court Fees Act determined on the date of the application. There can be no doubt that the interest received by the executor would have
to be shown in the inventory which he has to file under S. 317 of the Succession Act of 1925 which has replaced S. 277 of the Act of 1865 and
the correspondence between the Amendment effected to S. 277 by Act VI of 1889 and the affidavit of value annexed to the Court Fees Act is too
clear to be ignored. The result is that we are of the opinion that the court-fee has to he paid on the entire net value of the estate as at the date of the
application including in this, the interest already collected by the executor before that date.