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Sundrabai Saheb Vs. the Collector of Belgaum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 26 of 1903
Judge
Reported in(1908)10BOMLR1197
AppellantSundrabai Saheb
RespondentThe Collector of Belgaum
Excerpt:
pleader's fees-prabate proceedings-appeal-assessment of pleader's fees.;pleader's fees in appeals in probate proceedings should, according to a long standing practice of the high court, be assessed at ra. 30. - .....of law raised in this case by the learned government pleader relates to the valuation of pleader's fees in proceedings for probate. the collector of belgaum, having applied to the district judge for probate in respect of the will of lingappa jayappa sir desai of navalgund, caveats were entered by or on behalf of several persons, one of whom was the deceased's widow. as she was a minor, the collector applied to the district judge for the appointment of a guardian ad litem. the judge having by an order appointed the deputy nazir of his court, an appeal was filed in this court against that order by dayagowda leegowda patil, who described himself as guardian of the minor. the appeal was heard and the order was confirmed with costs, which were directed to be paid by the guardian. the.....
Judgment:

Chandavarkar, J.

1. The question of law raised in this case by the learned Government Pleader relates to the valuation of Pleader's fees in proceedings for probate. The Collector of Belgaum, having applied to the District Judge for probate in respect of the will of Lingappa Jayappa Sir Desai of Navalgund, caveats were entered by or on behalf of several persons, one of whom was the deceased's widow. As she was a minor, the Collector applied to the District Judge for the appointment of a guardian ad litem. The Judge having by an order appointed the Deputy Nazir of his Court, an appeal was filed in this Court against that order by Dayagowda Leegowda Patil, who described himself as guardian of the minor. The appeal was heard and the order was confirmed with costs, which were directed to be paid by the guardian. The Registrar's office having valued the Pleader's fees at Rs. 30 as part of the costs, according to a long-standing practice of this Court, the learned Government Pleader, who had appeared in the appeal for the Collector of Belgaum, objected to the valuation, and contended before the Taxing Officer that the Pleader's fees should be calculated in accordance with the last clause of Section 7 of Act I of 1846.

2. The point has been urged before us and its determination depends upon the question whether probate proceedings, both original and appeal, are within the meaning of a 'regular suit ' so as to come within the purview of Section 7 of Act I of 1846. The learned Government Pleader contends that they are and relies upon Section 83 of the Probate Act (V of 1881). The language, however, of that section is far from lending support to the contention. The section does not say that proceedings for probate are 'a regular suit' or that they shall be treated as such for all purposes, It provides that ' they shall take as nearly as may be the form of a suit, according to the provisions of the Code of Civil Procedure.' This would show that probate proceedings do not, under the ordinary law, fall within the description of a 'regular suit'; it is by virtue of Section 83 that they are brought within that category; and they are so brought, not in point of fact but only in point of form, for the limited purpose Of applying to them ' as nearly as may be ' the provisions of the Code of Civil Procedure. These restrictions leave still a difference between ' a regular suit' and a testamentary suit. That the Legislature intended the difference to exist is apparent from the special provisions in the Court Fees Act (VII of 1870) for the valuation of Court fee in the case of an application for probate, as distinguished from a suitt As Section 83 of the Probate Act brings a probate proceeding within the description of a suit by means of a statutory fiction the purposes Of which are expressly limited to the provisions of the Code of Civil Procedure, we think we should be extending the scope of that fiction beyond its legitimate limits if we were to allow the argument of the learned Government Pleader. We hold, therefore, that the long standing practice of the Court as regards the valuation of Pleader's fees in probate proceedings should continue.


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