TMI Blog1970 (4) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner, National and Grindlays Bank Ltd., Madras, has applied for the grant of probate of the will of one Mrs. Constance Lubeck dated 25-1-1968. Along with the petition, an affidavit of assets, as, contemplated under section 55 of the Act, is filed. In annexure "B" of the affidavit of assets a sum of Rs. 11,043.46 is shown as provisional estate duty under the heading "Amount of debts due and owing from the deceased payable by law out of the estate". The office felt a doubt whether estate duty is a debt due from the deceased and whether it can be deducted from the value of the estate for the purpose of payment of probate duty. When this position was pointed out, the advocate for the petitioner, relying upon the decision of the Myso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affidavit reads thus : "1. I(A.B.)....... solemnly affirm/make oath and say that I am the executor or one of the executors or one of the next of kin of ............... deceased, and that I have truly set forth in Annexure A to this form of valuation all the estate of which the above named deceased died possessed or to which he was entitled at the time of his death, and which has come, or is likely to come, to my hands." Annexure A in that schedule prescribes the form of valuation of the movable and immovable property of the deceased. In that form various items are described. Omitting items which are not relevant, the relevant portion reads thus : " Annexure-A. Valuation of the movable and immovable property of deceased.......Immov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate. The amount of expenses connected with the funeral rites and ceremonies and the amount of mortgage encumbrances are debts which are liable to be deducted from the value of the estate. Though the amount of expenses connected with funeral rites and ceremonies is one to be incurred after the death of the owner of the estate, the legislature has made specific provision that the said amount also is liable to be deducted as a debt Reliance is placed upon the form of affidavit which is required to be filed and the relevant portion of it has been extracted above. That affidavit no doubt refers to the estate as the estate of which the deceased died possessed of or to which he was entitled at the time of his death and which has come or likel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sections 55 and 56 of the Madras Act. The Mysore Court-fees Act also contains Schedule III consisting of Part I with annexures "A" and "B" containing similar language as we find in Schedule III of the Madras Act. In the case before the Mysore High Court, the district judge, against whose decision the appeal was taken, took the view that in the computation of the court-fee, the estate duty paid by the petitioner should be taken into consideration. After referring to sections 52 and 53 of the Mysore Court-fees Act and the relevant portion of Schedule III containing the affidavit, the Bench consisting of Somnath Iyer and Kalagate JJ. held : "The scheme of the Estate Duty Act and of its provisions makes it clear that immediately on the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value. Rejecting this contention, the Bench observed : "But this submission overlooks the provisions of section 53(1) which contain the plainest indication that the deductions to be made under sub-section (2) are the further deductions to be made from the market value of the estate which has come or was likely to come to the hands of the executor and that that estate is an estate burdened with the liability to pay the estate duty." With great respect to the learned judges, I am unable to share this view. From the mere use of the expression "market value" it does not mean that certain liabilities to which the estate is subject should be deducted in the first instance and that further deductions should be made of the items mentioned in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in any State for obtaining probate, letters of administration or succession certificate in respect of any property for which estate duty is leviable under that Act, the amount of estate duty payable shall be reduced by an amount which is equal to the court-fees so paid. From this provision, it is reasonable to infer that the legislature has taken note of the fact that in the determination of the market value of the estate for the purpose of obtaining probate or letters of administration, the estate duty payable in respect of the estate would not have been taken into consideration and that relief should be given to a person who has already paid court-fees for obtaining probate or letters of administration. I find that the estate duty pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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