Madras High Court
Uthayakumar vs K.Vanaja on 17 November, 2022
C.R.P(PD)(MD).No.2031 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
C.R.P.(PD)(MD).No.2031 of 2022
Uthayakumar
S/o.Jeyaram ... Petitioner
Vs.
1.K.Vanaja
2.K.Jegadeesan
3.P.Raji
4.P.Naveenraja ... Respondents
PRAYER: Civil Revision Petitions filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order passed in
I.A.No.3 of 2021 in Prob. O.P.No.2 of 2017, on the file of the Additional
District & Sessions Court, Theni dated 24.08.2022.
1/10
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C.R.P(PD)(MD).No.2031 of 2022
For Petitioner : Mr.H.Arumugam
For Respondents : Mr.R.Suriya Narayanan for R3 and R4
No appearance for R1 and R2
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order passed in I.A.No.3 of 2021 in Prob.O.P.No.2 of 2017, on
the file of the Additional District & Sessions Court, Theni, dated
24.08.2022.
2. The petitioner has filed Probate Original petition before the
Additional District & Sessions Court, Theni, in Probate O.P.No.2 of 2017
to probate the Will dated 12.08.2017 executed by his father to him and he
has also paid Court fee of Rs.16,54,710/- (Rupees Sixteen Lakhs Fifty
Four Thousand Seven Hundred and Ten only) towards probate charges.
Thereafter, the petitioner realized that he has paid the excess Court fee
and he filed an application under Section 70 of the Tamil Nadu Court
Fees and the Suit Valuation Act of 1955 read with Section 151 of C.P.C
for refund of Court fee of Rs.16,29,710/- (Rupees Sixteen Lakhs Twenty
Nine Thousand Seven Hundred and Ten only) paid by him mistakenly.
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C.R.P(PD)(MD).No.2031 of 2022
The said application was dismissed by the learned Additional District &
Sessions Judge, Theni, in I.A.No.3 of 2021 in Probate O.P.No.2 of 2017.
Against the fair and decreetal order passed in I.A.No.3 of 2021 in
Probate O.P.No.2 of 2017 dated 24.08.2022, the present Civil Revision
Petition has been filed before this Court.
3. The learned counsel for the petitioner submitted that as per the
Article 6 of Schedule 1 of Tamil Nadu Court Fees and Suit Valuation
(Amendment) Act, 1955, the Court Fee for any Probate of the Will is
subject to the maximum of Rs.25,000/- (Rupees Twenty Five Thousand
only) and on wrong advice, the petitioner has paid a sum of Rs.
16,54,710/- (Rupees Sixteen Lakhs Fifty Four Thousand Seven Hundred
and Ten only) towards probate charges and therefore, excess amount has
to be returned to him. The learned counsel for the petitioner has also
produced the endorsement made in the Probate O.P, which was filed in
the year 2017.
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C.R.P(PD)(MD).No.2031 of 2022
4. The learned counsel for the respondents 1 and 2 submitted that it
is not by mistake and once the amount has been paid, it cannot be
refunded and therefore, no interference is warranted to the order dated
24.08.2022 passed in I.A.No.3 of 2021 in Prob. O.P.Nos.2 of 2017, on
the file of the Additional District & Sessions Court, Theni.
5. The petitioner has filed the above Probate O.P to probate the
Will dated 12.08.2017 executed by his father to him on 06.10.2017. The
same was returned by the Court and he has also paid the Court Fee of
Rs.25,000/- (Rupees Twenty Five Thousand only) as per the Article 6 of
Schedule 1 of Tamil Nadu court Fee and Suit Valuation (amendment) Act
1955. The petitioner valued the Probate for an amount of
Rs.5,51,57,000/- (Rupees Five Corers Fifty One Lakh and Fifty Seven
Thousand only). The said application was returned by the Court again on
09.10.2017 with the following endorsement as under:-
''Value of claim Rs.5,51,57,000/- probate charges at
3%. For deposit of probate charges of Rs.16,54,710/- by
15.11.2017.''
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C.R.P(PD)(MD).No.2031 of 2022
6. Thereafter, it was posted on 13.12.2017, with an endorsement of
“for depositing of Probate charges”. On 13.12.2017, again it was
adjourned to 10.01.2018 with an endorsement of “for depositing of
Probate charges”
7. As per the Article 6 of Schedule 1 of Tamil Nadu Court Fees
and Suit Valuation (Amendment) Act 1955, for probate of a Will is 3% on
the administration with or without Will amount of value of the annexed.
The estate in respect of which the grant of probate on letter of
administration is subject to maximum of Rs.25,000/- (Rupees Twenty
Five Thousand only).
8. The petitioner has filed the Probate O.P only on 06.10.2017,
after the amendment. Therefore, the petitioner is liable to pay a sum of
Rs.25,000/- (Rupees Twenty Five Thousand only) as Court fee as per the
amended Act and the petitioner has also paid the amount, at the time of
filing the above petition. However, there are certain proceedings of the
Court, that the Court under the impression that 3% of the value of the
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C.R.P(PD)(MD).No.2031 of 2022
claim has to be paid and directed the petitioner to deposit the probate
charges of Rs.16,54,710/- (Rupees Sixteen Lakhs Fifty Four Thousand
Seven Hundred and Ten only) by the order, dated 15.11.2017 and after
two hearings, it appears that the petitioner has paid the amount.
9. The learned counsel for the petitioner produced the order in
Chidambaram Chettiar, In re reported in 1934 (8) Law Weekly 295
wherein, the Hon'ble Division Bench held as follows:
“In our opinion, the Court can order a refund (1)
where the Court- Fees Act applies; (2) where there is an
excess payment by a mistake or (3) where, on account of
the mistake of a Court a party has been compelled to pay
Court-fees, either wholly or in part.”
10. In Factors (P.) Ltd. v. Amalgamated Com.T.(P.) Ltd., reported
in 1983 (6) Law Weekly 109, it is held as under:
“The law on the subject is thus fairly clear. In order
to claim a refund of fee paid by mistake or inadvertence,
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C.R.P(PD)(MD).No.2031 of 2022
under Section 70 of the Court Fees Act, 1955, the party
must, in the first place, establish that no Court fee was
payable at all by him or that excess Court fee had been
paid. In the second place, he must go further and establish
that the payment was due to his mistake in thinking that the
amount paid as Court fee was really payable under the
provisions of the Court fees Act. Where however, the
payment had been made out of a mistake on his part in the
choice of a remedy no refund can be claimed, as the
payment evidently has not been made due to any mis-taken
belief that the same was really due under the Court fees
Act. It is also open to him to establish that the payment was
due to his inadvertence, in other words that he had wrongly
paid the Court fee by oversight or negligence.
11. The learned counsel for the petitioner has relied upon the
judgment in In the Goods of: Kalyan Kumar Bose (Deceased) reported
in 2013 SCC Online Cal 22789 : (2013) 5 CHN 648, wherein it is held
that unless there is grant of probate, there is no vested right in the State
to receive the fees.
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C.R.P(PD)(MD).No.2031 of 2022
12. Admittedly, the petitioner has paid the excess Court Fee. The
maximum Court fee for a Probate is Rs.25,000/- (Rupees Twenty Five
Thousand only) as per amended Act. The petitioner has also paid only
Rs.25,000/- (Rupees Twenty Five Thousand only) along with probate
O.P. The petitioner valued his claim as Rs.5,51,57,000/- (Rupees Five
Corers Fifty One Lakhs and Fifty Seven Thousand only). The trial Court
made an endorsement by referring the value of the probate and directed
the petitioner to deposit the probate charges at the rate of 3% by the order
dated 09.10.2017. Thereafter, the Probate O.P was adjourned twice for
deposit of probate charges at Rs.16,54,710/- (Rupees Sixteen Lakhs
Fifty Four Thousand Seven Hundred and Ten only) and then, the
petitioner has paid the probate charge of Rs.16,54,710/- (Rupees Sixteen
Lakhs Fifty Four Thousand Seven Hundred and Ten only) on 05.01.2018.
The earlier counsel for the petitioner has also not properly advised him to
challenge this order and now, on change of Counsel, the petitioner has
filed this present petition.
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C.R.P(PD)(MD).No.2031 of 2022
13.Considering the facts and the circumstances of this case and the
position of law, this Court is inclined to allow this Civil Revision
Petition by setting aside the fair and decreetal order passed in I.A.No.3 of
2021 in Prob.O.P.No.2 of 2017, on the file of the Additional District &
Sessions Court, Theni, dated 24.08.2022. The trial Court shall take
necessary action to address to the Treasury to refund the Court fee to the
revision petitioner within a period of four weeks from the date of receipt
of a copy of this order.
In the result, this Civil Revision Petition is allowed. No Costs.
17.11.2022
Index : Yes/No
Internet : Yes
Speaking/Non-speaking order
tta
To
Additional District & Sessions Court,
Theni
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C.R.P(PD)(MD).No.2031 of 2022
B.PUGALENDHI,J
tta
Order made in
C.R.P.(PD)(MD).No.2031 of 2022
Dated:
17.11.2022
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