JUDGMENT
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.
4. Mr. Mukherjee, learned counsel appearing on behalf of the petitioners has submitted before this Court that the application for probate having been filed at a point of time when the new amendment of the Court-fees Act did not come into force and his clients having already deposited the maximum Court-fees as per the order of the Court before coming into operation of the new amendment, the provisions prescribing enhanced Court-fees by virtue of new amendment are not applicable to the case in hand. In support of such contention Mr. Mukherjee has placed strong reliance upon the Division Bench decision of this Court in the case of Kamal Shukla v. Krishna Roy, reported in 2004(1) CHN 359, wherein a Division Bench of this Court, upon placing reliance upon a judgment of the Supreme Court came to the conclusion that the Court-fees upon a memorandum of appeal filed after commencement of Court-fees (Amendment) Act should be payable at the rate that was existing at the time of institution of the suit out of which the appeal arose. According to Mr. Mukherjee, by applying the same principle, it should be held that Court-fees on the probate as required under serial No. 10 of the Schedule I should be payable on the basis of law as it stood at the time of filing of the application for grant of probate.
5. Since, the matter, involved question of calculation of Court-fees which affects the interest of the State, this Court directed Mr. Mukherjee to give notice to the learned Government Pleader and accordingly Mr. Moitra, the learned Government Pleader entered appearance and opposed the prayer of Mr. Mukherjee. Mr. Moitra by relying upon a Division Bench decision of this Court in the case of Pritish Kumar Mitra v. Prasanto Kumar Mitra, , contended that the liability of an executor to pay ad valorem Court-fees in terms of serial No. 10 of the schedule I accrues only upon grant of probate and not upon filing of application for grant of probate. By relying upon such decision, Mr. Moitra contends that in probate proceedings, question of payment of ad valorem Court-fees arises when the Court decides to grant probate and therefore, such Court-fees should be assessed in accordance with the law as it stands at the time of passing of order granting probate. According to Mr. Moitra, undisputedly, or the date the Court allowed the application for grant of probate, the new amendment had come into force and as such, the learned District Delegate rightly directed the present petitioners to pay the balance enhanced amount of Court-fees as per amended provision.
6. Therefore, the only question that falls for aetermination in this application is whether the enhanced rate prescribed by virtue of the West Bengal Court-fees (Amendment) Act, 2002 for payment of Court-fees as provided in serial No. 10 of schedule I shall apply to the probate proceedings instituted prior to coming into force of the said amendment if the Court grants probate after coming into operation of the amended Act.
7. After hearing the learned counsel for the parties and after going through the provisions contained in West Bengal Court-fees Act, 1970, it appears that an applicant for grant of probate is required to file application initially before the District Delegate with a fixed Court-fees as provided in serial No. 9 of the schedule II. If the said proceedings become contentious, in such a case, he is required to take back the said application and refile it before the District Court and affix Court-fees in accordance with the direction contained in the proviso to the said serial No. 9 of the schedule II.
8. Finally, if the Court decides to grant probate after being satisfied that the Will in question was really the last Will and testament of the deceased testator and that it was duly executed and attested, the executor is under obligation to pay further Court-fees on the basis of entire valuation of the property covered by the Will as provided in serial No. 10 of the Schedule I. If the application for probate is unsuccessful, in such a situation, the executor is not required to pay any further Court-fees apart from those paid in terms of serial No. 9 of schedule II. Therefore, the liability to pay the final Court-fees in terms of aerial No. 10 of schedule I on the basis of valuation of the subject-matter covered under the Will accrues only when the Court decides to grant probate. Thus, it necessarily follows that a successful executor is required to pay such Court-fees at the rate prevailing on the date of grant of probate and not earlier.
9. In the case before us, the executors before grant of probate, with the permission of the Court paid Rs. 10,000/- as Court-fees, the maximum amount, which was then in force although they were under no obligation to pay such Court-fees and if the application ultimately failed, they could pray for refund of that amount. There is no dispute that on the date of order granting probate in favour of the executors, the new amendment of Court-fees Act had already come into force and as such, the executors are under obligation to pay Court-fees at that rate.
10. I am unable to accept the contention of Mr. Mukherjee that in this case the executors are required to pay final Court-fees in accordance with provision contained in serial No. 10 of the schedule I at the rate of Court-fees as it stood on the date of presentation of the original application for grant of probate.
11. In the case of Kamal Shukla v. Krishna Roy, reported in 2004(1) CHN 359 relied upon by Mr. Mukherjee, a Division Bench of this Court by relying upon the well-known case of State of Bombay v. Supreme General Films Exchange Limited, , held that an impairment of the right of appeal by putting a new restriction thereon on imposing a more onerous condition is not a matter of procedure only; it imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.
12. The aforesaid principle is applicable in the case of appeals where Court-fees on memorandum of appeal is required to be put in on the basis of Court-fees payable on plaint but the case before us is a different one. Here application for grant of probate is filed with Court-fees at a fixed rate and ultimately further Court-fees are required to be paid only if the applicant succeeds. Thus, an applicant is not required to pay Court-fees on the basis of valuation in terms of serial No. 10 of the schedule I at the time of institution of the proceedings but his liability accrues the moment Court decides to grant probate on such application. Therefore, the principles laid down in the aforesaid Supreme Court decision has no application to the fact of the present case where the liability to pay full ad valorem Court-fees on the basis of valuation of the subject-matter will accrue on the date the Court allows the application. Thus, on the date of presentation of the application under Section 276 of the Indian Succession Act, the petitioners had no subsisting right to pay ad valorem Court-fees at the rate then prevailing payable in the event the probate is granted. They had on that day the right to pay the Court-fees in terms of serial No, 9 of the second schedule at the rate then payable under the Act on the application under Section 276 of the Indian Succession Act.
13. I, thus, find that the present petitioners having unnecessarily deposited in the Court the maximum amount of Court-fees earlier at the prevailing rate though not required under law, cannot take advantage of such deposit if under the law as it stands on the date of grant of probate, he is required to pay an enhanced amount.
14. I, thus, find that the learned Trial Judge rightly passed the order impugned directing the petitioner to pay ad valorem Court-fees on the basis of valuation in terms of serial No. 10 of the schedule I at the rate existing on the date of grant of probate.
15. I, therefore, find no reason to interfere with the order impugned. In the facts and circumstances, there will be, however, no order as to costs.