Share this

By Dr Sanjay Chaturvedi, LLB, PhD.

A Will is the disposition of the assets made by a person during his or her lifetime intended to take effect after death. When a person dies without making a Will, he is said to have died intestate i.e. his property will be inherited by the heirs according to the Law of Succession. In this case, heirs should obtain a legal heir certificate.

When a person dies after making a Will, it can be enforced only after a probate is issue. A probate is identified as the copy of the Will certified under the seal of the court of competent jurisdiction.

No right as executor or legatee can be established in any court of justice unless a court of competent jurisdiction in India has granted only to the executor appointed by the Will.

A petition for the probate is to be filed in the concerned court along with the Will. The petitioner should furnish stamp paper of value equal to the required court fee which is specified as certain percent- age of the value of assets to be inherited. The assets may include immovable property (ies) for which to arrive at the stamp duty, its value should be worked out.

In the case titled Gorhandus Hargoindas vs. Municipal Commis- sioner, Ahmedabad (1964) 66 NmlR68.78 AIR 196 Se1742, 1747, the court stated that “the annual value or rateable value is arrived at by one of the three methods:

  1. Annual rent fetched by land or building where it is actually
  2. Where is not let, rent based on hypothetical tenancy, particularly in the case of buildings and
  • Where either of these two methods is not available, by valuation based on capital

A division bench of the Mysore High Court in the case of CED vs / Krishnamurthy (1974) 96 ITR 97 was concerned with the valuation of unquoted shares for the purpose of Estate Duty. There was no rule under the Estate Duty Act providing for such valuation (it was only later that Rule 1 BB was introduced and Estate duty was abolished in the 1986).

The court observed that “in the absence of rules, valuation for the purpose of this Act had to be made in accordance with the well recognized valuation methods followed in India. The method of valu- ation prescribed under the Wealth Tax rules being the only statuto- rily recognized method of valuation.

It has been held by the Bombay high Court. In a petition filed by Madhusudhan Dwarkda Vora vs.

Superintendent of stamps that the wealth tax rules provide a method for assessing the value of unutilized surplus land where the differ- ence between the unbuilt area and specified area is less than 20 percent of the aggregate area. The same method must be applied for the purpose of grant of probate.