Case Note & Summary
The appeal arose from an order of the Learned Single Judge dated 6 February 2013 in a Testamentary Petition for probate of a joint will executed by Kantilal Mehta and his wife Induben Mehta. The will was executed by both on the same date and time. The Single Judge held that the estate of both testators must be separately valued and that the petitioner must pay separate court fees for the grant of probate of each testator's will. The appellant, Dr. Akshay Kantilal Mehta, as executor, appealed against this order. The Division Bench of the Bombay High Court, consisting of Dr. D.Y. Chandrachud and S.C. Gupte JJ., allowed the appeal. The Court examined Sections 18 and 23 of the Bombay Court Fees Act, 1959, and Article 10 of the Schedule. Section 18 provides for aggregate fees in multifarious suits, but the Court held that a joint will is a single subject, not a multifarious suit. Section 23 provides that when a grant of probate is made for the whole estate, no further fee is chargeable for a like grant. The Court concluded that the petition for probate of a joint will is for one subject, and court fee is payable on the aggregate value of the estate of both testators, not separately. The Single Judge's order was set aside, and the petition was directed to proceed on the basis that the court fee is payable on the aggregate value of the estate.
Headnote
A) Succession Law - Joint Will - Probate - Court Fees - A joint will executed by a testator and testatrix on the same date and time is a single testamentary instrument - The petition for probate of such joint will is for a single subject, not a multifarious suit - The court fee is payable on the aggregate value of the estate of both testators, not separately - Section 18 of the Bombay Court Fees Act, 1959, which deals with multifarious suits, does not apply to a joint will - Section 23 of the Act provides relief when a grant is made in respect of the whole estate - The Single Judge's order requiring separate valuation and separate court fees was erroneous (Paras 2-6).
Issue of Consideration
Whether a joint will executed by a testator and testatrix requires separate valuation and separate court fees for the estate of each testator for the purpose of probate.
Final Decision
Appeal allowed. Order of Learned Single Judge dated 6 February 2013 set aside. The Testamentary Petition shall proceed on the basis that the court fee is payable on the aggregate value of the estate of both the testator and testatrix.
Law Points
- Joint will is a single testamentary instrument
- probate of joint will is a single grant
- court fee payable on aggregate value of estate
- Section 18 Bombay Court Fees Act applies to multifarious suits not to joint wills
- Section 23 Bombay Court Fees Act provides relief for several grants
