Case Note & Summary
The appellants filed Misc. Application No. 15/2002 for issuance of a Probate Certificate in respect of a Will dated 14.12.1992 executed by deceased Gangadhar. The Trial Court issued public notice. Initially, some opponents admitted the contents, but later opponents 1,2,5,6 resisted. Opponent No.1 filed an application requesting the Court to frame an issue regarding maintainability for want of payment of court fees and jurisdiction. The Trial Court framed issues including whether the opponents prove that the Court has no jurisdiction and whether the application is not maintainable for want of court fees. The Trial Court held that the application was not maintainable for want of court fees and directed the appellants to pay court fees on the market value of the property. The appellants appealed. The High Court considered the interpretation of Section 29 read with Schedule I, Clause 10 of the Bombay Court Fees Act, 1959. The Court held that the court fee payable on a probate application is on the value of the estate as per the will, not on the market value of the property. The Court allowed the appeal, set aside the Trial Court's order, and directed the Trial Court to decide the probate application on merits after determining the court fee payable on the value of the estate as per the will.
Headnote
A) Bombay Court Fees Act, 1959 - Section 29 read with Schedule I, Clause 10 - Court Fee on Probate Application - Computation of court fee - The court fee payable on an application for grant of probate is to be computed on the value of the estate as per the will, not on the market value of the property. The Trial Court erred in directing the appellants to pay court fee on the market value of the property. Held that the court fee is payable on the value of the estate as per the will (Paras 1-6).
Issue of Consideration
Whether the court fee payable on an application for grant of probate under Section 29 read with Schedule I, Clause 10 of the Bombay Court Fees Act, 1959 is to be computed on the value of the estate as per the will or on the market value of the property?
Final Decision
Appeal allowed. Order of Trial Court dated 30.06.2009 set aside. Trial Court directed to decide the probate application on merits after determining the court fee payable on the value of the estate as per the will.
Law Points
- Interpretation of Section 29 read with Schedule I
- Clause 10 of Bombay Court Fees Act
- 1959
- Court fee on probate application is payable on the value of the estate as per the will
- not on the market value of the property
- Probate proceedings are not adversarial in nature
- Issue of court fee is a preliminary issue
