Kaikshroo H. Billimoria Richard ... vs Prothonotary And Senior Master, ...
2002 Latest Caselaw 430 Bom

JUDGMENT

V.K. Tahilramani, J.

1. Heard parties.

2. Admit. By consent, the appeal is taken up for final hearing.

3. The appellant (original petitioner) applied for probate of the Will of late Shri K. H. Billimoria on 13th October, 2000, for an estate being Bank Account No. C 0193569 EB in Switzerland in the United Bank of Switzerland which was Willed by the deceased Shri Kaikshroo Harmusji Billimoria to the appellant.

4. The appellant handed over blank stamp papers amounting to Rs. 75,000/- to the testamentary department as he had assumed the value of Rs. 50 lakhs in the abovesaid account and he was informed that the maximum value of the Court fees was Rs. 75,000/-.

5. The probate was granted to the appellant on 27th April 2001 by the Prothonotary and Senior Master. The probate petition was issued by the Prothonotary and Senior Master with the remarks that probate Court fee payable was "NIL". It is stated on behalf of the appellant that the appellant was informed that foreign assets did not require any Court fee to be paid in India. Hence, the appellant applied for refund of the Court fee paid by him on 12th September 2001. The said application/1etter was rejected by the Assistant Prothonotary and Senior Master on 22nd November, 2001. In the said order, it was observed that the appellant who is appearing in person is not in a position to show any provision in the Bombay Court Fees Act, 1959, which according to him, would entitle him for the refund of the Court Fees. The appellant had relied on the order passed in Petition No. 172 of 1991 in the case of Management of M/s Airmech Eastern Engineering WLL As the said matter in the case of Airmech Eastern Engineering WLL was relating to the case of compensation which was awarded to the appellant by the Management of Airmech, the Assistant Prothonotary and Senior Master has observed that the said amount would not come in the category of assets of the deceased on the date of the death of the deceased and hence, in the case of Airmech, the Court fees were waived. The Assistant Prothonotary and Senior Master has rightly observed that the said case would not be applicable to the case of the appellant. Thus, the application for refund of Court fees came to be rejected.

6. The appellant thereafter preferred petition No. 943 of 2000. It is submitted that the learned Single Judge rejected the said application without giving any reasons and the order of the learned Single Judge reads thus :--

"Application for refund is rejected".

7. On behalf of the appellant, reliance is placed upon the case of Abraham Ezekiel, Abraham and Anr. (Petitioner) reported in 21 (XI) Bom. 139. The said case is under the provisions of the Court Fees Act which is almost identical to the Bombay Court Fees Act, 1959. In the said case, a similar question arose i.e. whether the probate duty was payable on assets which were not in India at the time of the death of the testator. It was held therein that the probate duty can be charged only in respect of property which is within the jurisdiction of the Court at the time of the death of the deceased and probate duty could not be charged if the property was outside the jurisdiction of the Court at the time of death of the deceased. In relation to the property, material date to be seen is the date of the death of the deceased and not when the probate was granted.

8. In the present case at the time of the death of the testator the property in respect of which probate is obtained was in Switzerland. The law appears to be settled that the amount of the probate duty is to be regulated not by the value of the assets which the Executor may ultimately administer by virtue of the Will but the value of such part as is at the time of death of the deceased within the jurisdiction of the Court by which the probate or Letters of Administration are granted. In the present case, the property is situated in Switzerland, therefore, the appellant will have to take out appropriate proceedings in Switzerland in respect of the money lying in the Bank in Switzerland. The Courts of the country where the deceased was domiciled, will administer the property wherever situated; but if in the Course of the administration, it becomes necessary to take out legal proceedings to reduce the estate into possession, the representative constituted by the Court of the domicile, will have to clothe himself with a title from the Court where the property is locally situated. By the comity of nations, however, the foreign Courts would probably follow the decision of the Court of probate and grant ancilliary relief to that granted by the Court of the domicile.

Reliance was placed on a decision of the English Court in the case of Attorney General v. Lord Sudely reported in (1986) 1 2E 354. The said decision was affirmed by the house of Lords. In the said case, it was held that such property is liable to probate duty which at the time of the death of the owner, was situated in England.

9. Thus, in our opinion, it is not every asset of the estate of the deceased that is to be valued for duty, but only such of the assets of the estate as were at the time of death of the testator locally within the jurisdiction of the authority which grants the probate. The distinction depends upon the locality of the asset at the time of the testator's death. If the locality of the asset is outside the jurisdiction, the asset is called a foreign asset and is not liable to probate duty. This legal position has been holding the field since 1896. We do not see any reason to take a different view.

10. In this view of the matter, Prothonotary and Senior Master shall refund the Court fees to the appellant within a period of ten weeks. Appeal is allowed in the above terms.