V. Ramaswami Aiyangar And Another v. A.r.s.m.s. Sundaresan Chettiar And Others

GOVINDA MENON, J.

(1) WHEN once it is con-ceded that with respect to Wills executes by Hindu outside the City of Madras it is unnecessary to take out a probate in order that the under the will should be effective, the question Will arise as to whether any order by a Court directing the issue of a probate will necessarily involve compulsory deposit of stamps necessary for the issue of the probate. It is conceded that no probate has been issued on the strength of the will which has been declared valid by the High Court to the extent of the personal properties of the testator and what the Court has done is to direct, that the executors should pay as much of the Court-fee as is necessary on the amount of the legacies bequeathed under the Will. We are not satisfied that the mere fact that the Court has directed the issue of a probate would necessarily involve the duty on the party to deposit the stamps. It may be that the legatees may settle the matter outside without getting a probate. To take an analogous case, supposing there is a decree for partition among the members of a joint family and if after the preliminary decree is passed and before the final decree is engrossed on stamp papers, the parties settle the matter between themselves it can not be said that they can be compelled to pay stamp duty for engrossing the final decree on stamp paper. In our view the order of the learned Sub ordinate Judge directing that the receivers will de- posit into Court necessary amount for the issue of a probate on the quantum of the legacies involved under the will cannot be maintained. We there fore set aside the order of the lower Court and direct that it is unnecessary to deposit the stamps for issuing the probate. There will be no order as to costs in this appeal.