Bir Bahadur Yadav, son of Late Mongru Choudhury, Resident of Hirapur, MADA Colony, Hindu v. 1. State of Jharkhand through Deputy Commissioner, Dhanbad
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 1360 of 2009 Bir Bahadur Yadav, son of Late Mongru Choudhury, Resident of Hirapur, MADA Colony, Hindu Mission Road, P.O., P.S. and District-Dhanbad … …Petitioner Versus 1. State of Jharkhand through Deputy Commissioner, Dhanbad (being Collector of District) P.O., P.S. and District-Dhanbad. 2. Treasury Officer, Dhanbad, P.O., P.S. and District- Dhanbad. … …Respondents -------- CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD For the Petitioner For the Respondents :Mr. S.N.Das, Advocate. :Mr. S.K.Laik, Advocate. :Mrs. Vandana Singh, Sr. S.C.III Order No.11/dated 02.05.2023 -------- This writ petition under Article 227 of the Constitution of India has been filed for assailing the order dated 28.11.2008 passed by the learned Addl. District Judge-cum-Fast Track Court- Vth, Dhanbad in Probate Case No. 5/05 whereby and whereunder the petition filed by the petitioner for withdrawal of Probate Case has been allowed and the prayer for refund of the duty money has been rejected. 2. It is the case of the petitioner that the Probate case was filed under the provision of Section 276 of the Indian Succession Act along with the duty money as required and to be utilized in view of the provision of Section 379(1) of the Indian Succession Act but the applicant after filing the Probate case, has filed a petition for its withdrawal along with the refund of the duty money on the ground that since the occasion of the Court has not come for utilization of the duty money in view of the provision of Section 379 2 (2) of the Indian Succession Act in view of the withdrawal of the Probate Case and in that view of the matter the petitioner is entitled for refund of the duty money in view of the provision of Section 379 (3) of the Act. But the learned trial court has rejected the application so far as it relates to the refund of the duty money is concerned. However, the Probate case has been allowed to be withdrawn vide impugned order dated 28.11.2008. The present petition has been filed assailing the order dated 28.11.2008 by which the prayer to refund the duty money has been rejected. 3. The learned Counsel appearing for the petitioner has
Legal Reasoning
submitted that the learned trial court has dismissed the aforesaid application so far as it relates to the refund of duty money on the misconception of law, since, the reference of the provision of Section 276 has been dealt with basis upon which the learned trial court has come to conclusion that Section 276 does not confer any power to refund the duty money. 4. The learned Counsel appearing for the petitioner has submitted that the provision of Section 276 provides the forum to file petition for probate but, there is separate provision as under Section 379 of the Act wherein the provision has been made that for every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-Fees Act, 1870, in respect of the certificate or extension applied for. 5. The learned Counsel for the petitioner, therefore, submits that the Court-Fee by way of duty money was paid along 3 with the petition at the time of the filing of the petition for probate under the provision of Section 276 of the Act, 1925 but the same, since, has been allowed, therefore, the same is required to be refunded in view of the provision of Section 379 (3). 6. The learned Counsel, therefore, submits that the impugned order since has been passed by taking into consideration the provision of Section 276 and discarding the provision of Section 379 (2) and (3) of the Act, 1925 hence the impugned order suffers from error and as such not sustainable in the eyes of law. 7. Mrs. Vandana Singh, learned Sr. Standing Counsel-III has submitted that the learned trial court ought to have taken into consideration of provision of Section 379 of the Indian Succession Act, 1947. She, however, has also submitted by referring to the counter-affidavit filed by the Treasury Officer wherein it has been stated by him that the amount can only be refunded on the basis of the sanction order passed by the competent authority. 8. This Court has heard the learned Counsel for the parties as also gone through the finding recorded by the learned trial court in the impugned order. It is evident from the impugned order dated 28.11.2008 that while dealing with the issue of refund of duty money/Court fee which was deposited by the petitioner at the time of filing of the petition for Probate has been refused to be refunded. Such refusal is based upon the reasoning that Section 276 does not refer to refund of the duty money. The aforesaid finding, according to the considered view of this Court suffers from infirmity. Section 276 of the Indian Succession Act, 1925 stipulates 4 by conferment of power to the District Judge for filing application for Probate or for letters of administration, for ready reference, Section 276 reads as under: 276. Petition for probate.- for (1) Application letters of for probate or administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating- a. the time of the testator’s death, b. that the writing annexed is his last Will and testament, c. that it was duly executed, d. the amount of assets which are likely to come to the petitioner’s hands, and e. when the application is for probate, that the petitioner is the executor named in the Will. In addition to these particulars, the petitioner shall (2) further state,- a. when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and b. when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate. 9. It is evident from the aforesaid provision that the forum has been carved out under this provision by way of filing an application to a District Judge. The Section 278 speaks about also a forum for issuance of letters of administration. However, we are only concerned with the provision of Section 276, since, the learned 5 trial court by taking into consideration the provision of Section 276 of the Indian Succession Act, 1925 has rejected the prayer for refund of duty money but only for the purpose to show that in the similar way as the forum has been carved out by virtue of the provision of Section 276 of the Indian Succession Act, 1925 for filing of application for Probate/letters of administration the reference of 278 is being made by which also the power has been conferred upon the concerned District Judge for issuance of letters of administration. The Section 379 stipulates that every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870 in respect of the certificate or extension applied for. For ready reference the provision of Section 379 reads as under: Section 379. Mode of collecting Court-fees on certificates.- (1) Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-Fees Act, 1870 (7 of 1870), in respect of the certificate or extension applied for. (2) If the application is allowed, the sum deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid. (3) Any sum received under sub-section (1) And not expended under sub-section (2) Shall be refunded to the person who deposited it. Sub-Section (2) thereof provides that if the application is allowed, the sum deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid, meaning thereby, 6 the sub-section (2) confers power upon the concerned Judge who is in the seisin of the matter that in case of application having been allowed then in that circumstances the Court-fee/duty money which was deposited under the Court-fee Act will have to be expended for the purpose of purchase of the stamp and for that purpose the amount is to be deposited before the Court. Sub- Section (3) thereof provides that any sum received under Sub- Section (1) and not expended under Sub-Section (2) shall be refunded to the person who deposited it. Thus, sub-section (3) of Section 379 provides power that the amount so deposited as under Sub-Section (1) and not expended as under Sub-Section (2) then in such circumstances, the amount shall be refunded to the person who deposited it. 10. The reference of the judgment rendered in the case of Mt. Ehatishammunnisa and Another v. Mir Hadi Ali and Others reported in AIR 1935 ALL 735. 11. It is evident from the provision of Section 379 of the Succession Act, of a sum equal to be fee payable on a succession certificate, cannot be considered to be court fee payable on the application for a succession certificate which corresponds to a plaint to a suit. This deposit is made necessary to ensure payment of court-fee when the succession certificate is to be issued. The court-fee on such certificate is payable under the Court-fees Act, Schedule 1, Article 12, and is paid when the certificate is issued, namely, after the termination of proceedings under the Indian Succession Act. 7 12. The said aspect of the matter has been considered in the judgment reported in AIR 1940, Nag 65 (Mt. Fatmabi) wherein it was held that it was not a court fee and the amount deposited under Section 379 of the Succession Act was held to be refundable if not expended. 13. In the case of Sarojbashini Devi v. District Judge, 24 Parganas. AIR 1917 Cal 380 (2), it was held that after a succession certificate is granted to the mother, a second application by the daughter would require also payment of court-fees payable on the succession certificate. This decision also indicates that the court-fee is payable whenever a succession certificate is issued or is extended. Thus, the deposit has nothing to do with the grant of the succession certificate. It is only to secure the payment of the court-fees when the certificate is granted and thereafter issued. 14.
Legal Reasoning
In the case of Smt. Prakash Wati v. Province of Punjab through Collector of Lahore, AIR 1941 Lah 399, it was held that an application for succession certificate can be allowed subject to furnishing of security. The application was dismissed. In such circumstances, the amount deposited with the application under Section 379(1) and not expended was liable to be refunded under Section 379 (2). 15. In the case of Sankara v. Nainar, ILR 21 Mad 241, the Madras High Court has also taken the view, that if no order for grant of succession certificate is made, the amount, deposited with the application, becomes refundable to the person depositing the amount. 8 16. It is, thus, evident from the mandate of Section 379(1), (2) and (3) of the Succession Act having been interpreted by the judgments referred hereinabove, the court fee deposited at the time of filing of application is required to be refunded in case the succession certificate is not being issued. 17. Here in the instant case, the fact about withdrawal of the Probate Case, as per the impugned order, is not in dispute. It is also not in dispute that the prayer for refund of the duty money was also paid on the ground that the amount so deposited under the provision of Section 379 (1) of the Act, 1925 had not been expended in view of the provision of Sub-Section (2) of Section 379. Therefore, according to the considered view of this Court, the implication of Sub-Section (3) of Section 379 will come into play for refund of the unexpended amount, the day when the Probate application was withdrawn. The reason being that due to withdrawal of the Probate Case, the concerned Court is having no occasion to expend the said amount for the purpose of purchase of the stamp. But this Court after having discussed the legal position as above and coming back to the impugned order has found therefrom that the learned trial court has failed to consider the implication of the provision of Section 379 (1), (2) and more particularly sub-section (3) rather has only considered the provision of Section 276 which according to the learned trial court does not refer to refund of the duty money. Therefore, the order passed by the learned trial court dated 28.11.2008 requires interference. 9 18. Therefore, this Court in exercise of power conferred under Article 227 of the Constitution of India deem it fit and proper to interfere with the impugned order dated 28.11.2008. Accordingly, the order dated 28.11.2008 is hereby quashed and set aside. The matter is remitted back before the concerned court, so far as it relates to the refund of the duty money is concerned, for passing a fresh order 19.
Decision
The instant writ application stands disposed of. P.K.S. (Sujit Narayan Prasad, J.)