Probate of Will and COURT FEE/Stamp Duty payable
This
has been observed that the payment of stamp duty on the order granting of
probate or letter of Administration often comes for discussion post pronouncing
the judgment on probate and ambiguity surface. The principles governing
granting of probate have already been elucidated in greater detail earlier and
therefore, the contour of this write up shall be limited to the aspect as illustrated
above, given the magnitude of discussion in this regard. It is significant in
the context to observe that when the judicial issues are determined such as
granting of probate of a Will and/or Letter of Administration, the ministerial
and administrative issue crops up such as the valuation of the properties and
basis of payment of court fee/stamp duty. No doubt, even these issues have
cropped up before courts, earlier, and the payment of stamp duty and its extent
and the valuation of the property under the Will are the pertinent issues in
this regard and hence being delved herein.
In
this context the following shall be relevant:
(i)
Section 19H of the Court Fees Act,
1870
(ii)
Chapter 29 of the Delhi High Court
(Original Side) Rules, 2018)
(iii)
Indian Succession Act
(iv)
Indian Stamp Act
(v)
Delhi Stamp (Prevention of Under
Valuation of Instruments) Rules, 2007
In
order to obtain the probate certificate, the Petitioner is obligated to pay the
requisite court fees in compliance with Article 11 of Schedule I of the Court
Fees Act, 1870 [hereinafter referred to as the ‘Act’] as applicable to Delhi. The
court fee is payable at the rate of 4% of the value of the property in respect
of which the grant of probate has been made.
A
valuation report is generally issued by the Assistant Collector, Grade - I, Sub
Division & District in New Delhi. The valuation is called for by the courts
where the petition seeking probate are pending. The Valuation Report is generally
based on a notification dated 22nd September, 2014 issued under Rule 4 of the
Delhi Stamp (Prevention of Under Valuation of Instruments) Rules, 2007
[hereinafter referred to as ‘Delhi Stamp Rules’], for facilitation of minimum
circle rates of valuation of land and property, issued by the revenue
department of the Government of National Capital Territory of Delhi
[hereinafter referred to as ‘GNCTD’].
Earlier,
when circle rate was not in place, the vendor/purchasers of properties were
having unguided choice to fix any amount towards market value of the properties
under sale. Therefore, with a view to check/contain the said arbitrary
practices of the general public as well as to limit the wide discretionary
power of the collector, the specific circle rates were notified after legislative
deliberation in the public interest and to safe guard the government revenue.
Once the said circle rates are notified, the said rate acted as a yardstick to
determine the value of the property rates of the property of a particular area.
This was thus a tool to determine the market value of the properties,
uniformly. No doubt, the circle rates are required to offer guidance to the
Registering officer while deciding the matter with regard to determination of
the true value of the property. It is a matter of common knowledge that in
absence of the circle rates, the practice of mammoth undervaluation of the
properties to avoid payment of appropriate ad
valorem stamp duty were rampant. Therefore, Circle rates serve as a
yardstick or as indices available to the Registering Officer as regards the
proximate value of the property or the consideration of the property in
question.
In
accordance with the dicta of the Division Bench of Delhi High Court in a matter
captioned as Manu Narang Vs. The Lt. Governor, Govt. of NCT of Delhi (2016) 226 DLT
1 and Amit Gupta Vs. Govt. of NCT of Delhi (2016) 229 DLT 385, the
petitioner seeking probate of a Will has to be given an opportunity to prove
before the Court by adducing evidence, that the valuation of the property is
less than the valuation reported by the respondent State according to the
circle rate.
COURT
FEE/STAMP DUTY
Court
fee (a judicial stamp) is fundamentally different from stamp duty (a
non-judicial stamp). While stamp duty on registration of transfer of
right/title and interest in immovable properties is charged by the State
Government under Entry 66 of List II of Constitution of India, Court Fees for
the High Court is chargeable under Entry 3 of List II of Constitution of India.
Therefore, the legislative power for enacting laws providing for court fee and
stamp duty flow from entirely different entries in List II of the Constitution.
While
stamp duty is the revenue that is collected by the State, which could be
appropriated and applied towards any other general expense, Court Fee does not
tantamount to ‘revenue’ in that sense, and is merely collected as a service fee
for the dispensation of justice – utilised only to offset the costs of
administration of civil justice.
For
the purpose of probate, the Court Fee is payable on the ‘value’ of the property
and not ‘circle rate value’. As per the Indian Succession Act, 1925
[hereinafter referred to as ‘Succession Act’], Sections 57 (c), 213, 300, 276
and 289 deals with valuation of property. Moreover, Schedule VI of the Court
Fee Act also aid as a direction for grant of probate. The probate is granted of
the Will annexed, only upon the payment of the requisite Court Fee.
In
terms of Article 11 of Schedule I of the Act, Court Fee is payable at 4% of the
“value of the immovable property”. The said provision does not mention ‘circle
rate value’ or ‘value determined by the State/ Revenue Authority’.
The
dispute with respect to valuation of a property should be resolved in the
manner provided under Section 19H of the Act.
In
Manu Narang v. The Lt. Governor,
Govt. of NCT of Delhi (Supra) it is held that the Collector ought to determine
the value of the property in light of the material placed on record by the
Petitioner, which may include certain registered sale deeds. It is not enough
in itself if the Collector observes that the Stamp Duty has been payable on the
basis of the circle rate, irrespective of the sale consideration being much
lower than the circle rate.
The
circle rate notified cannot necessarily be adopted by the Court for the purpose
of payment of court fees. The circle rate notifications issued by GNCTD are
issued for the purpose of the determination of stamp duty payable on
registration of immovable properties. These cannot be adopted for the purpose
of ascertaining the court fee payable, when there is a dispute regarding the
valuation of the immovable property. The distinction between court fee and tax
has been abundantly dealt with by the Supreme Court in a catena of judgments,
such as Indian Mica Micanite Industries v. The State of Bihar & Ors. 1971 (2)SCC
236 , P.M. Aswathanarayana Setty &
Ors. v. State of Karnataka & Ors 1989 Suppl SCC 696., and Secretary
for Govt. of Madras v. PR Sriramulu & Anr 1996(1)SCC 345.
In
terms of sub-section (g) of Section 19 H, the Court is empowered to reject the
Collector’s report if it is satisfied that it is erroneous, and thereupon,
record a finding vis-à-vis the true valuation of the property. Section 19 H of
the Act does not give any right to the Petitioner to challenge the valuation
report filed by the Respondent. Only Respondent has the right to move the Court
for holding an inquiry into the true value of the property. Unless, the said
right is exercised by the Respondent, the valuation so submitted must be held
to reflect the true value of the property. In terms of the said provision,
valuation report of the Respondent is placed on a higher footing than the
valuation report submitted by the Petitioner.
Moreover,
it is also no res integra that court
fee shall be payable as on the current value of the property existing at the
time of granting of probate. The same could be ascertained from a matter
reported as Parveena Bhardwaj Vs State & Ors ILR (1975) 1 Delhi 151
CONCLUSION
It is worthwhile to remember that the court fees
for grant of probate, which is linked to the valuation, is an ad valorem court fee, interlinked with
the true/market value of the property. Circle rates are indicator and often
taken note of and relied upon in this regard. This court fee is charged towards
the probate certificate and is different from that which is paid on the
application seeking probate. Thus, the procedure prescribed under the Delhi
Stamp Rules and the notification of minimum rates for valuation issued by the
Government would be relevant for the purpose of finding out the true/market value
for the purpose of payment of court fees in the probate petition. However, in an
apt case or cases, inquiry may be conducted, if the circle rates are found to
be excessive or below the market rates. Therefore, circle rate may not always
act as a thumb rule, though, it is certainly an indicator.
--------
Anil K Khaware
Founder &
Senior Associate
Societylawandjustice.com
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