IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.03.2008
C O R A M
THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI
W.P.No.9161 of 1999
K.C.K.Prabhakar .. Petitioner
-Vs-
1. The Collector of Chennai,
Office of the Collectorate,
Chennai 600 001.
2. The State of Tamil Nadu,
represented by the Secretary,
Revenue Department,
Fort St. George, Chennai 600 009. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari calling for the records relating to A2-77152/95 dated 12.05.1999 on the file of the first respondent and quash the said order passed on 12.05.1999.
For Petitioner : Mr.P.Kalpa Reddy
For Respondents : Mr.Senthil Kumar
Government Advocate
- - - -
O R D E R
This writ petition is directed against the order of the District Collector dated 12.05.1999, by which a direction has been issued to the petitioner to pay the Court fee of Rs.2,28,962/- in the Reserve Bank Account in respect of immovable property situated at No.15, Second Cross Street, United India Colony, Kodambakkam, Chennai 600 024, which is the subject matter of O.P.No.772 of 1995 before this Court and to produce receipt, failing which revenue recovery proceedings will be initiated.
2. The above said property belonged to the mother of the petitioner Mrs.Kuchubhotla Kamalamba, who died at Chennai on 20.06.1995 and she also left her last will and testament dated 08.02.1992, bequeathing the above said property in favour of the petitioner. The petitioner filed O.P.No.772 of 1995 for grant of Letters of Administration. This Court by an order dated 12.02.1996, granted Letters of Administration in favour of the petitioner. A copy of the order was issued to the petitioner on 08.04.1996. The petitioner has filed accounts on 17.03.1997, in compliance with the grant of Letters of Administration. When the grant of Letters of Administration was sought for, the valuation of the property was resorted to by the Tahsildar, Egmore-Nungambakkam to issue notice on 03.09.1998. The petitioner has replied on 16.09.1998, stating that the Letters of Administration was ordered on 12.02.1996 and it was issued on 08.04.1996 and accounts were filed on 17.03.1997, and by virtue of proviso to Section 59(5) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, the Collector can move an application for amendment of valuation in this Court within six months from the date of exhibition of inventory and in the present case, inventory was made on 17.03.1997 and the notice of the Tahsildar for enquiry regarding the valuation is on 03.09.1998, which is beyond the period of six months and therefore it is not permissible. Further the first respondent has determined the valuation of Court fee as Rs.2,28,964/- and directed to pay the said amount as per the impugned order. The impugned order is challenged on the ground that it is against the proviso to Section 59(5), since the valuation is stated to be made after six months from the date of inventory filed before this Court.
3. The learned counsel for the petitioner apart from relying upon Section 59(5) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 has also submitted that the Division Bench of this Court in the Judgment reported in 2006 (4) TLNJ 281 (Civil) has construed the said provision and held that if the Collector fails to move the Court for the purpose of amendment within a period of six months as per the Act, losses his right to revalue the property for the purpose of Court fee.
4. Heard Mr.P.Kalpa Reddy, learned counsel appearing for the petitioner and Mr.Senthil Kumar, learned Government Advocate appearing for the respondents.
5. The facts are not in dispute, it is seen that this Court has granted Letters of Administration to the petitioner on 12.02.1996 and pursuant to the direction for Letters of Administration, inventory has been filed on 17.03.1997 i.e., as per the requirements of Section 317 of the Indian Succession Act, 1925. Section 59 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 makes it clear that the Collector who would receive the application for valuation as per Section 55 (2) has to examine either himself or through his Subordinate Officer as to the correctness of valuation and furnish the correct value to the person who make such application. If the Collector is of the opinion that any property has been undervalued he is entitled to require the attendance of the applicant who has made the application for Letters of Administration / Probate and after enquiry if he is still of the opinion that the value is underestimated, the Collector may direct the applicant to amend the valuation and if the application of Letters of Administration / Probate is pending in Court he has to file a copy of the amended valuation. In any case, when Letters of Administration / Probate was granted and the applicant amends the valuation to the satisfaction of the Collector and if the Collector finds that a less fee has been paid than was payable according to the true value of the estate, he shall proceed under Section 61(4) of the Act. In the event of any payment of excess Court fee, the same has to be refunded. If the applicant files for amending the valuation to the satisfaction of the Collector, it is open to the Collector to move the Court before which the application for Probate / Letters of Administration was made to hold enquiry into the true value of the property. Such an application is to be made within a period of six months from the date of exhibition of the inventory required by Section 317 of the Indian Succession Act, 1925. Section 59 reads as follows:
Section 59: Inquiry by the Collector:-
(1) The Collector to whom a copy of the application and the valuation has been sent under Section 55, sub-section (2), shall examine the same and may make or cause to be made by any officer subordinate to him such inquiry if any, as he thinks fit as to the correctness of the valuation or, where a part only of the property is situated in his district, of the valuation of that part, and may require the Collector of any other district in which any part of the property is situated to furnish him with the correct valuation thereof.
(2) Any Collector required under sub-section (1) to furnish the correct valuation of any property shall comply with the requisition after making or causing to be made by any officer subordinate to him such inquiry, if any, as he thinks fit.
(3) If the Collector is of opinion that the applicant has under-estimated the value of the property of the deceased, he may, if he thinks fit, require the attendance of the applicant, either in person or by his agent, and take evidence and inquire into the matter in such manner as he may think fit, and if he is still of opinion that the value of the property has been under-estimated, may require the applicant to amend the valuation, and, if the application for probate or letters of administration is pending in Court, to file a copy of the amended valuation in such Court.
(4) If, in any such case, the probate or letters of administration has to have been granted and the applicant amends the valuation to the satisfaction of the Collector and the Collector finds that a less fee has been paid than was payable according to the true value of the estate, he shall proceed under Section 61, sub-Section (4); but if a higher fee has been paid than was payable according to the true value of the estate, the excess fee shall be refunded to the applicant.
(5) If the applicant does not amend the valuation to the satisfaction of the Collector, the Collector may move the Court before which the applicant for probate or letters of administration was made to hold an inquiry into the true value of the property;
Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by Section 317 of the Indian Succession Act, 1925 (Central Act XXXIX of 1925).
6. While construing the said provision from Section 55 to 59 and 61 of the Act, a Division Bench headed by Mr.Justice P.Sathasivam (as he then was) in O.S. Ramaswamy Vs. Personal Assistant (G) to Collector of Madras, Statutory Authority under The Tamil Nadu Court Fees & Suits Valuation Act, 1955 and another reported in 2006 (4) TLNJ 281 (Civil) has clearly held that as per Sub-section 5 of Section 59, it prescribes period of limitation of six months from the date of exhibition of inventory, within which the Collector has to move the Court and has also held that the said proviso is mandatory and ultimately set aside the impugned proceedings of the Personal Assistant (G) to the Collector with the following observations:
8……8.The assertion made by the Collector in the order dated 27.12.1993 that Sec.59(5) of the Act is not mandatory is without any merit. The Collector has clearly misconstrued the scope of the power conferred on the Collector.
9. The proceedings for grant of probate or letters of administration is initiated in the Court. Inventory is to be exhibited in Court. The Collectors role is only to assist the Court. If the determination made by the Collector is accepted by the applicant for probate and the valuation of the items are amended, it is only then the Collector can exercise powers under Sec.61(4). If the valuation is not amended in the manner decided by the Collector, the Collector must necessarily apply to the Court for the determination of the true value of the properties.”
9. On going through the provisions of the Act, we are in agreement with the conclusion arrived at by the learned Judge. As rightly pointed out, if the determination made by the Collector is accepted by the applicant for Probate and the valuation of the items is amended, only then the Collector can exercise his powers under Section 61(4) of the TNCF & SV Act. On the other hand, if the valuation is not amended in the manner as determined by the Collector, undoubtedly, the Collector must move the Court, where the Probate or Letters of Administration was granted for the determination of the true value of the properties. Such recourse has not been followed by the respondents and as rightly pointed out, the impugned proceedings are not only liable to be quashed, but the respondents are also not permitted to move this Court at this juncture. The above relevant aspects have not been considered by the learned Judge and committed an error in dismissing the writ petition.
10. We intend to point out that it is the duty of the District Collector to file an application before the Original Side of this Court for directing the party to pay court fee, when such party disputes the difference in valuation being adverted to by the Collector. It is brought to our notice that in recent years, there seems to be latitude on the part of the Collectorate in filing such application before this Court, resulting in loss of revenue to the State. The District Collector, Chennai is directed to act diligently in future by taking serious note of the aspect adverted to above.
Under these circumstances, the impugned proceedings of the Personal Assistant (General) to the Collector of Madras dated 18.05.1992 are quashed and the order of the learned single Judge dated 14.11.2000 made in W.P.No.22130 of 1993, is set aside. Consequently, the writ appeal is allowed. No costs.
7. Applying the provisions of the Act as well as the Judgment as referred to above, it is clear that in this case the inventory was made on 17.03.1997, the Tahsildar has issued notice for valuation on behalf of the first respondent District Collector on 03.09.1998 which is clearly beyond the period of limitation of six months prescribed under proviso to Section 59(5) of the Act and therefore the impugned order of the first respondent is liable to be set aside and accordingly set aside and the writ petition stands allowed. No costs.
14.03.2008
Index : Yes
Internet: Yes
kk
To
1. The Collector of Chennai,
Office of the Collectorate,
Chennai 600 001.
2. The Secretary to Government,
Revenue Department,
Fort St. George, Chennai 600 009.
P.JYOTHIMANI, J.
Kk
W.P.No.9161 of 1999
14.03.2008