JUDGMENT
Coutts, J.
1. This Court-fee matter arises out of an application for Probate. The testator was a member of a joint family and by his Will, after making provision for his widow and for the endowment of a temple, he has left the residue to his son. The executor, in applying for for Probate, has deducted the value of the residue from the total value of the property on which Court-fee has to be paid and he contends that Court-fee is not payable or this inasmuch as the minor son takes by survivorship. The question is, whether he is entitled to do this under Section 19(D) of the Court Fees Act, Section 19(D) runs as follows:– “The Probate of the Will or the Letters of Administration of the effects, of any person deceased, heretofore or hereafter granted, shall be deemed valid and available by his executors or administrators for recovering, transferring or assigning any moveable or immoveable property whereof or whereto the deceased was possessed or entitled, either wholly or partially as a trustee, notwithstanding the amount or value of such, property is rot included in the amount or value of the estate in respect of which a Court-fee was paid on such Probate or Letters of Administration.” The effect of this section has been considered by the Calcutta High Court, by the Madras High Court and by the Bombay High Court, The leading case in the Calcutta High Court is Pokurmull Augurwallah, In the goods of (1). In that case, which was a similar case to the present one it was held that Probate duty was exempted under Section 19(D) of the Court Fees Act. This view, however, has been differed from in both the Madras and the Bombay High Courts, It was pointed out in Dasu Manavala Chetty, In the matter of 4 Ind. Cas. 1064 : 33 M. 93 : 6 M.L.T. 286 : 19 M.L.J. 591 that the case was not argued in the Calcutta High Court, the suggestion of the Taxing Officer was accepted by the learned Chief Justice and, after a full discussion of the subject, it was held that where a surviving co parcener governed by the Mitak shara Law, applies for Letters of Administration in respect of property standing in the name of a deceased co parcener which was joint family property of the Applicant and the deceased, he is bound to include in the valuation of the property the value of the share to which the deceased was entitled at the moment of his death ; and the reason for the decision, as 1 understand it, was that, so far as the testator’s own share at least was concerned, it could not be held that it was held by the deceased as trustee. In the Bombay High Court the latest case on the point in Kashinath Parash ram Gadgil v. Gourabai Mallappa 28 Ind. Cas. 473 : 39 B. 245 : 17 Bom. L.R. 169. That case is a case on all fours with the present case. In it the decisions of both the Calcutta and the Madras High Courts have been considered, and it has been held that the exemption cannot be allowed. The executors in that case contended that the testator had no beneficial interest in any part of the property devised. The learned Judges, however, pointed out that as each of the coparceners is entitled to a joint benefit in every part of the undivided estate, it cannot be said that even the least part of the joint family property was held in trust not beneficially by the testator. They further pointed out that those who propound a Will and claim under it can hardly be heard to say that the testator had no powers of beneficial disposition and that, although the device under the Will takes only what is his own, t if he needs a Will to get it, .there is no reason why he should not pay the ordinary duty. The Court granting Probate is not entitled to consider the effect of the Will. The factum of the Will alone can be established in Probate proceedings and it is not for the Court in those proceedings to consider whether the testator had or had not the power to dispose of the property in the Will. If he purports to do so, those desiring to obtain Probate must pay a full duty leviable on such property.
2. The view which has been taken by the Bombay High Court is in my opinion, the correct view. I, therefore, direct that the Probate duty in the present case be paid on the value of the property device to the testator’s son,