PROBATE

Ø  Every person of sound mind not being a minor may dispose of his property by way of WILL. Any such WILL left by the testator shall become effective only after his / her demise. For making it as a valid instrument, it has to be filed in the Court of Judicature for the grant of Probate / Letter of Administration.

WHAT IS PROBATE ?

Ø  Probate means, the copy of a WILL certified under the seal of the Court of competent Jurisdiction with a grant of administration to the estate of the Testator.

Ø  Letter of Administration means, when a person has died intestate or leaving a WILL of which there is no executor willing and competent to act or whether the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may in its discretion having regard to consanguinity, amount of interest, the safety of the estate and probability that it will properly be administered; appoint such person as it thinks fit to be administrator.

The relevant provisions under the TamilNadu Court-fee and Suits Valuation Act, 1955 are briefly narrated as hereunder:-

SECTION.55 Application for probate or letters of administration

(1) Every application for the grant of probate or letters of administration shall be accompanied by a valuation of the estate.

(2) On receipt of such application, the Court shall send a copy thereof and of the [valuation to the Collector] of the district in which the estate is situated, or if the estate is situated in more than one district, to the Collector of the district in which the most valuable portion of the immovable property included in the estate is situated.

SECTION.56 Levy of fee

 The additional Court Fee chargeable is 2% if the under valuation is upto Rs.5000/- and 3% on Rs.5000/- and above.

(a)  where the application is made within one year of the date of death of the deceased, on the market value of the estate on such date; or

(b)  where the application is made after the expiry of one year from such date, on the market value of the estate on the date of the application:

 (2) For the purpose of the computation of fee – the value of the items mentioned in the affidavit of assets shall be deducted from the value of the estate.

(a) the value of the items mentioned in Annexure B to Part I of Schedule III shall be deducted from the value of the estate: Provided that, when an application is made for probate or letters of administration in respect of part only of an estate, no debt, no expenses connected with any funeral rites or ceremonies and no mortgage encumbrance on any part of the estate other than that in respect of which the application is made shall be deducted:

(b) the power of appointment which the deceased had over a property or which was created under a will shall be taken into account, the value being taken to be the value of the property forming the subject-matter of the power.

Where the property has been purchased jointly in the name of the applicants husband and the applicant, and the application is made only in respect of the husband’s share, Court fee is to be calculated on the value of the share and not on the value of whole property (90 I.C. 620; A.I.R, 1925 Lah, 493)

Where assets are situated both within and outside India and letters of administration are granted for the entire estate, Court fee should be paid only on the value of the assets in India. (A.I.R. 197, A.P.144).

SECTION.59. Inquiry by the Collector

(1) The Collector to whom a copy of the application and of the valuation has been sent under section 55, sub-section (2), shall examine the same and may make or cause to be made by any officer subordinate to him such inquiry if any, as he thinks fit as to the correctness of the valuation or where a part only of the property is situated in his district, of the valuation of that part, and may require the Collector of any other district in which any part of the property is situated to furnish him with the correct valuation thereof.

(2) Any Collector required under sub-section (1) to furnish the correct valuation of any property shall comply with the requisition after making or causing to be made by any officer subordinate to him such inquiry, if any, as he thinks fit.

(3) If the Collector is of opinion that the applicant has underestimated the value of the property of the deceased, he may, if he thinks fit, require the attendance of the applicant, either in person or by his agent, and take evidence and inquire into the matter in such manner as he may think fit, and if he is still of opinion that the value of the property has been underestimated, may require the applicant to amend the valuation, and, if the application for probate or letters of administration is pending in Court, to file a copy of the amended valuation in such Court.

(4) If, in any such case, the probate or letters of administration has or have been granted and the applicant amends the valuation to the satisfaction of the Collector and the Collector finds that a less fee has been paid than was payable according to the true value of the estate, he shall proceed under section 61, sub-section (4); but if a higher fee has been paid than was payable according to the true value of the estate, the excess fee shall be refunded to the applicant.

(5) If the applicant does not amend the valuation to the satisfaction of the Collector, the Collector may move the Court before which the application for probate or letters of administration was made to hold an inquiry into the true value of the property: Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by section 317 of the Indian Succession Act, 1925 (Central Act XXXIX of 1925).

If probate or letters of Administration has already been granted, then the Collector is obliged to proceed to collect the deficit stamp duty. (Judgement dated 4.1.91 in W.P.No.3063 of 1983).

SECTION.64. Recovery of penalties, etc.

Any excess fee found to be payable by an applicant for probate or letters of administration or by an executor or administrator, or any costs under section 60, subsection (4), or any penalty or forfeiture payable by any such executor or administrator may, on the certificate of the1 [the Appropriate Authority specified in the notification under sub-section (1) of section 4 of the Tamil Nadu Board of Revenue Abolition Act, 1980 (Tamil Nadu Act 36 of 1980)], be recovered from the executor or administrator as if it were an arrear of land revenue.

TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017

            As per schedule I article 6 of TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017, the Probate of a WILL or letter of administration with or without will annexed court fee is three per cent on the amount or value of the estate in respect of which the grant of probate or letter of administration is made, subject to a maximum of Rs.25,000/-.

Reference:-

1)    TamilNadu Court-fees and Suits Valuation Act, 1955.

2)    TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017

SUITS BY INDIGENT PERSONS OR PAUPER SUIT

Ø  Pauper refers to a person without any property except the wearing apparel. In civil suits between two persons the plaintiff may claim before the court that he is a Pauper, that he has no means to pay the court fees and that the suit may be admitted without payment of court fee. The court will refer the request to the Collector as the representative of the State Government.

Ø  Immediately on receipt of a copy of a decree awarding pauper stamp duty, the Tahsildar, in whose jurisdiction the debtor resides, will be required to collect the amount. Form C.F.No.IX-20 will be used for this purpose and if debtor acquires any property as a result of the pauper suit, a copy of the decree will also be sent to the Tahsildar for information.

Ø  Immediately on receipt of the reference with a copy of the judgment or decree, the Tahsildar should send the file to the concerned Revenue Inspector for collection of stamps duty. If the person concerned is a beneficiary in the suit the amount should be collected without fail if necessary be resorting to the provisions of the Revenue Recovery Act. The delay in taking effective steps for the recovery of the stamp duty results in the defaulter escaping without payment by changing his place of residence and absconding.

Ø  If they consider that the prospects of recovering the stamp duty are remote they will give full reasons for their opinion. In every case in which the Tahsildar suggests writing off the amount as irrecoverable, the Tahsildars conduct personal enquiries instead of leaving to the Revenue Inspectors to decide that the duty is irrecoverable. The particulars required in the proforma prescribed for the purpose should be gathered and furnished.

Ø  Whenever stamp duty is collected, the number of the challan, its date and the name of the sub-treasury in which and the head of account to which the amount is credited, should be reported.

ENQUIRY REPORT BY THE COLLECTOR:-

On receipt of a copy of the plaint, the Collector shall cause a thorough enquiry through the Tahsildar as to whether the plaintiff is really a pauper and whether he may be allowed to sue inform papueris. Enquiry should reveal interalia the following.

i.         Whether he has a right or title or interest in any property, movable or immovable, other than the one claimed in the suit.

ii.             His income and the way of his living.

iii.          Whether he has disposed of in any form any property before filing the above pauper suit.

The Collector must report to the court the result of the enquiry. The court shall then decide whether to allow the request or not. If the request is allowed the original case will be taken up for trial and judgement pronounced. The order will indicate from whom the court fee value is to be recovered. The Tahsildar shall pursue action accordingly to recover the court fee. Action under the provisions of Revenue Recovery Act to attach the movables/immovables to realise the amount due can be taken. If after exhausting all possibilities to realise the court fees allowed to the Government, it is found that the amount is irrecoverable, action should be taken to write off the amount due. But before sending write off proposals, the Tahsildar should ensure that the Judgement debtor does not own/has not acquired any movable or immovable properties.

POWERS OF WRITE OFF:

In case there is no possibility of realising the court fees awarded, the officers noted below may, after careful enquiry, order its write off subject to the monetary limit noted against each;

As per G.O.Ms.No. 516 Home dt. 26.2.1979, G.O.(Ms) No. 482, Home dt. 25.2.82 and G.O.Ms.No.2561, Home dt.22.11.1989 powers have been given to write off the court fee awarded to Government in Pauper suit as follows: -

1.	Revenue Divisional Officer	-	Upto Rs. 1000/-
2.	P.A to Collector.	-	Upto Rs. 1000/-
3.	Collectors	-	Upto Rs. 2500/-

A Register in the form prescribed in Para 13 of Part I of District Office Manual should be maintained.

Reference:

1)   ORDER XXXIII of The Code Of Civil Procedure, 1908.

2)    Manual of Revenue Administration.

REVENUE DEPARTMENT GLOSSARY

Amal	Transaction; Administration;     Business.
Amaldar	Native collector of revenue; Superintendent of the District or division of a country.
Amani	A settlement under which the government receives its share of the produce of the lands from each cultivator in kind, instead of stipulating for a pecuniary commutation.
Anicut	A weir or dam of masonry across a river.
Ayacut	This term signifies the whole taxable area in a village but more specifically under an irrigation work.
Bahaudur, Bahadur	A title of honour given to nobles under the Moharamaden government and to distinguished native officials under the British.
Beriz	The total of territorial assessment.
Bhattavarti, Bhittuvarthi	An assignment of revenue or land granted to Brahmins at a low rent, or rent - free, for their subsistence, the lands in such cases being mostly held in severalty. The term sometimes designates a village, the lands of which are permanently distributed among hereditary shares.
Bund	The wall of earth mostly artificial that supports the lower end of a tank. Also masonry bank built across a stream so as to retain water above it.
Calingulah	A water-way constructed in the bunds of tanks to permit the escape of surplus water, so as to prevent the bund bursting; usually set with upright stones to admit of partial bunding up.
Calwah	A channel.
Cawny, Kani	A land measure. Approximate actual value of one cawny = 57,600 square feet or 1.322 acres.
Chetty, Setti	Primarily a member of any trading caste in Southern India.
Circar, Sarkar	Government
Curnam, Karanam	Village Registrar and Accountant
Dasabandam	An allowance of land (Khanda Dasabandam) or exemption of revenue (Shamilat Dasabandam) given as a compensation for the construction or maintenance of a tank, well, or channel; Abatement of one-tenth of the revenue on account of compensation for some public work, as the construction of a tank.
Fasli, Fusly	The harvest or agricultural year, from the sowing of the Kharif through to the harvest- ing of Rabi. The Madras government fixed its commencement to 12th July.
Fassaljasti Fussuljasty	Charge for a second crop raised by government water on land registered as single crop.
Inam	Generally a gift from a superior to an inferior (danam).  So a grant of land for religious or charitable purposes, made by government.
Inamdar	Holder of anything as a favour. A person in the possession of rent - free, or favourably assessed lands.
Jagheer	An assignment of the government share of the produce of a portion of land to an individual.
Jamabandi	The annual settlement of the land revenue, made under the Ryotwari system.
Kaifiyat	Statement, description, reports, account particulars.  Any authenticated document.
Kudi, Coody	Agricultural village, habitation.
Kudimaramat, Coodymaraumut	Contribution of labour for petty repairs to irrigation work, which the ryots are bound to give by immemorial custom.
Kunta	Same as gunta, a pond. Also a Telugu measure of land equal to 1089 sq.ft. 32 kuntas or 19,600 sq.ft. make a Katti. A Katti is equal to 14 acres.