Wali Ullah, J.
1. This appeal is directed against an order passed by the learned District Judge of Agra in proceedings started by means of an application for probate of a will alleged to have been executed by Ghowdhry Nirotam Singh on 6-5-1944. The applicants were three out of the four executors named in the will. The fourth executor named in the will is Thakur Das respondent 2, who is the son-in-law of Chowdhry Nirotam Singh. The application for probate with the will annexed, was filed on 5-9 1944. It was alleged in the application that Chowdhry Nirotam Singh who executed the will on 6-5-1944, died at his village, in the district of Agra, on the same day, viz., 6 5-1944, leaving certain properties which were described in schedule A, attached to the application. The petitioners went on to say inter alia that they them selves were the three real brothers of the testator and were also three out of the four executors named in the will. It was further stated that of the other relations of the deceased who were likely to be interested in the hearing of the probate application, two to whom notices might be sent, were Mt. Chameli Devi widow, and Thakur das, son-in-law of Chowdhry Nirotam Singh. The application was accompanied by an unregistered document purporting to be the will of Chowdhry Nirotam Singh dated 6-5-1944. On notices being issued to Mt. Chameli Devi and Thakur Das, both of them filed objections vehemently challenging the validity of the will.
2. The valuation of the assets given in the application was Rs. 19,228-11 6 and the probate fee of Rs. 605-2-0 was deposited. It appears that later it was found that the correct valuation of the property of the testator was Rs. 65,821'6-6. The deficit amount of probate fee, i.e. Rs. 1493-2-0 was thereafter demanded from the applicants There were other proceedings taken meanwhile which it is not necessary to detail here. Finally on 15 9-1945 an application (paper No. 79C) was filed by the three applicants praying that they may be allowed to deposit the balance of the probate fee at the time of the grant of the probate to them. The grounds stated in this application were that there were not sufficient funds in the estate nor were the applicants possessed of funds to pay the deficit amount of the probate fee. It was lastly stated that under the law, the payment of the deficit court-fee, or probate fee at, that stage was not necessary. The learned Judge passed an order on the same day holding that the court-fee had to be paid before the judgment. He, therefore, ordered the applicants to make good the deficiency in the court-fee before the date fixed for final hearing. He further directed that the amount would not be paid out of the estate. Against that order of the learned Judge the applicants have filed an appeal to this Court under Section 6A Court-fees Act and Section 299, Succession Act.
3. Learned Counsel for the appellants has strongly contended inter alia, that the view of the learned Judge of the Court below that the court-fee was to be paid before the date fixed for final hearing and before the order was entirely erroneous His contention is that under the law, the court-fee has to be paid before the probate is actually issued, but that the applicants - the appellants - could not be called upon to deposit the court-fee before the application was heard and decided in their favour.
4. The crucial question which has to be considered in this case is whether the learned District Judge was right in holding that the applicants for probate should make good the deficiency in court-fee before the date fixed for final hearing of the application. The determination of this question would depend principally on the interpretation which is put on Section 19I(1), Court-fees Act. It is clear that the application for probate, with the will annexed, can be made in accordance with the provisions of Section 276, Succession Act. The application would obviously be a proper application if it bears a fixed court-fee stamp of the value prescribed by Article 1 of Schedule 2. Section 289, Succession Act provides for the grant of probate under the seal of the Court. It also provides that the form of the probate shall be in accordance with the form set forth in schedule 6 of that Act. When once a properly stamped application has been made, the Court has to proceed with the matter and decide whether or not the application is fit to be granted. Section 19-1(l), Court-fees Act provides that an order of the Court in favour of the petitioner i.e an order granting the application shall not be made until certain conditions are satisfied. It seems to follow, therefore, that no further court-fee, of the nature of probate duty can be legitimately demanded from the applicants till the stage arrives when the Court has made up its mind to grant the probate and such a stage cannot arrive till the Court has gone into the matter. The order of the learned Judge, therefore, demanding the deficit amount of court-fee before the date fixed for final hearing of the application was entirely erroneous. The point of time when the Court is to be satisfied that the fee mentioned in Article 11 of Schedule 1, Court-fees Act has been paid is, as said above, the time when the Court has decided to grant the probate and not before. In a case which is likely to be contested, it would obviously be unwise on the part of a petitioner to pay the probate duty in the form of a court-fee prior to the decision by the Court about the validity of the will. It may be that the stage when payment of the necessary court-fee is required may never arise as the Court may not make up its mind to grant the probate. It may dismiss the application.
5. It will be noticed that Section 19-1 does not indicate when exactly, prior to the making of the order, the payment of the court-fee is to be made. There is thus a lacuna in the statute and this can be filled up, as has been done in some other High Courts, by providing for it specifically in the Rules of the Court (or in the case of subordinate Civil Courts, by adding a rule in the General Rules, Civil, similar to Rule 56 of Chapter XI which applies to an application for a succession certificate.) Again, it may be noticed that Article 11 of Schedule 1, Court-fees Act provides for payment of court fee on the probate and not on the application for probate. Obviously the matter of the payment of probate duty is very different from a civil suit where the court-fee is payable on the plaint and not on the decree. Section 19-1, Court-fees Act undoubtedly makes it clear that the court-fee is to be calculated and paid at a point of time anterior to the order entitling the petitioner to the grant of probate. In this state of the matter, there has grown up a long standing practice in this Court of passing an order in this form:
Let probate issue as prayed on court-fee being first, paid.
In the absence of any specific provision indicating the point of time when the court-fee is to be paid and the procedure which has to be followed in making the payment, it seems to me that the Court concerned may adopt one of two alternative courses : (1) After it has decided that the applicant should succeed it may stay its hands at that stage and call upon the applicant to pay the necessary court-fee on the probate and then, after the applicant has complied with the direction of the Court, it may pass the order granting the probate, or, (2) The Court may pass a conditional order as is the practice, of this Court referred to above. This will result in substantial compliance with the provisions of Section 19-1, though perhaps it may not be so in a strictly literal sense. The provisions of the-section must, however, be interpreted in a reason, able manner and, in my opinion, the prevailing practice of this Court is not inconsistent with or against the provisions of Section 19 I, Court fees Act. Reference might be made to the testamentary case No. 4 of 1906 decided by two learned, Judges, Knox and Aikman on 7-21906, where an order was passed in accordance with the practice mentioned above. It should be noticed that some seven years had elapsed since the passing of the Court-fees Amendment Act 1899 (It of 1899) which inserted Section 19-1 into the Court-fees Act of 1870 when this case was decided. I have not been able to trace any earlier case on this point decided by this Court prior to the above mentioned case decided in 1906. And since 1906 the present practice appears to have been consistently followed in this Court. It appears, however, that in 1934 the propriety of this practice' was called in question. In view of the provisions of Section 19-1 of the Act the office invited the attention of the then Acting Chief Justice, Sir Charles Kendall to the prevailing practice. The-matter was considered by him as well as by the then Taxing Judge, Sir Edward Bennet and it was decided to maintain the practice. It has been observed ever since. Again in First Appeal No. 443 of Deepchand v. Mania ('47) 1947 A.L.J. 668, decided by two learned Judges of this Court on 11-12-1944 there are observations in favour of the practice.
6. Learned Counsel for the appellants has endeavoured to derive support for his argument from a consideration of the provisions of the Succession Act relating to the grant of a succession certificate. The position of an application for a succession certificate is entirely different, for Section 379, Succession Act specifically provides for the deposit of the amount of court-fee payable at the time when the application is made. There is no such provision with regard to an application for probate. It may, however, be argued that the absence of such a provision itself indicates that the Legislature never intended that the amount of probate fee should be deposited at the initial stage, namely at the time of making the application for probate.
7. A number of decisions of High Courts in India including our own Court have been cited before us by the learned' counsel for the appellants. None of them specifically decides the point which we have to determine in this case, but certain subsidiary points which may be of some help in deciding the crucial question in this case have been made clear. It has been held in several cases that the court-fee which is payable is to be calculated according to the law in force on the date of the grant of probate and not according to the law in force at the time of the application. Reference might be made to the cases in Bandhan v. Kishan Prasad : AIR1939All45 ; Sheo Bandhan v. Kishan Prasad : AIR1940All323 , Lanchand v. Ramchander : AIR1929All462 and Sheo Baran Singh v. Mt. Kulsumunissa . Again, it has been made clear in some of these cases that Section 19-1 does not say that the Court shall not try the application until the conditions mentioned therein are fulfilled. All it says is that the Court shall not make an order on the application in favour of the petitioner until the conditions stated in it are fulfilled.
8. In the result, therefore, I would allow the appeal, set aside the order of the learned District Judge and send back the case for disposal according to law. If the learned Judge, as the result of the hearing of the cases, arrives at the conclusion that the will is genuine and is proved, he may pass a conditional order of the kind indicated above or he may follow the other alternative and call upon the applicants to furnish the requisite court-fee before the order granting probate is actually passed. I would direct the parties to bear their own costs of this appeal.
9. This is an appeal from an order of the learned District Judge of Agra in a court-fee matter. The appellants in this Court filed an application for grant of probate, with the will annexed, on 6-9-1944. They valued the assets of the deceased at Rs. 19,228-11-6 and along with the application deposited a sum of Rs. 603-2-0 to cover the court-fee on the probate. Later on, it was discovered that the valuation of the property of the deceased was much higher and that the total amount of court-fee required would be Rs. 2096-4-0. The appellants were required to pay the deficit amount, i.e., Rs. 1493-2-0. On 15-9-1945, the appellants applied to the District Judge that they may be allowed to deposit the deficiency in the probate fee at the time of the grant of the probate. The learned judge, however, passed the following order:
The court-fee has to be paid before the order, i.e., before judgment. Therefore, let the applicant plaintiff make good the court-fee before the day fixed for final bearing. This money will not be paid out of the estate.
The appellants not being satisfied with this order have filed this appeal.
10. To my mind the matter is very simple and plain. The wordings of Section 19-1, Court-fees> Act are:
No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until...the court is satisfied that the fee mentioned in No. 11 of the First-Schedule baa been paid on such valuation.
In my judgment the learned District Judge has-very correctly interpreted this section when he said that the court-fee has to be paid before the order, i.e., before judgment. The only point in controversy is whether the court-fee has to be paid before the date of hearing as ordered by the: learned District Judge in this case, or after an. order granting probate has been passed. It has been brought to our notice that the practice of this Court has been that the applicants are asked to pay the court-fee after the order granting, probate has been passed. It is not exactly known as to how this practice originated, but it does, appear that on different occasions exception was, taken to it but it was decided that it was not. necessary to change the established practice and it was allowed to continue. I am, however, aware that in most of the subordinate. Courts the practice has been to deposit the money for the payment of court-fee at the time of the application or soon after it. I presume-, that such a practice was prevailing in Agra and it was in pursuance of that practice that the applicants paid a sum of Rs. 603-2-0 in Court to cover the court-fee along with their application. I think, therefore that it wonld be inadvisable to change the practice prevailing in subordinate. Courts for exactly the same consideration for which, the practice prevailing in this Court was allowed to continue. Section 379, Succession Act, is expilcit that every application for a certificate or for the extension of a certificate (succession) shall be accompanied by a deposit of a sum equal to the; fee payable under the Court-fees Act, 1870, in respect of the certificate or extension applied for. It further provides that if the application is allowed the sum deposited shall be expended for the purchase of the stamp to be used for denoting the fee payable on the certificate and any sum not, expended shall be refunded to the person who deposited it. Learned Counsel for the appellants argues that if the Legislature contemplated that a similar procedure should be followed in, case of probates and letters of administration-a provision should have been made for it. To my mind the omission is due to the fact that while in case of a succession certificate application the amount of court-fee can be determined by the applicant himself, in case of an application for probate and letters of administration the valuation has to be verified by the revenue authorities and it is then that the proper amount of court-fee is determined. I cannot think of any reason why the applicants for probate or letters of administration should be given a greater latitude. It is no doubt true that in many cases which came before different High Courts it was held that the mere fact that the court-fee was not paid along with the application would be no bar to the grant of a probate and that it could be paid even after the order was passed.
11. Lastly, the matter entirely is of the use of his discretion by the presiding officer. The law has provide that the court-fee must be paid be. fore an order entitling the petitioner to the grant of probate or letters of administration has been -made upon an application for such grant. The exact time when it has to be paid in compliance with this provision has to be fixed by the Court. I do not think it is in the interest of the efficiency of the administration of justice that this Court should interfere with the discretion of the lower Courts in appeal unless that discretion has been capriciously exercised.
12. I bad the advantage of perusing the judgment of my learned brother and I think it unfortunate that I have to differ from him. The order proposed would not give a proper direction to the lower Courts and in cases where a Court passes an order calling upon the applicant to furnish the requisite court-fee before the order granting probate is actually passed it would entitle him to come to this Court in appeal and to urge that an order granting the probate conditional on payment of court-fee should have been passed, or probably where a conditional order has been passed the opposite party may think of approaching the Court of appeal urging that the applicant should have been asked to pay the court-fee before the order granting probate was actually passed.
18. In these circumstances, and having regard to the fact that the order of the learned District Judge is in accordance with the law, and the practice prevailing and that he has exercised his discretion judicially, I would propose that this appeal be dismissed. Before concluding I would also remark that the opposite party in this case was not represented and, therefore, we bad the advantage of hearing the arguments of 'the counsel for the appellants alone.
14. As there is a difference of opinion between us about the order to be passed in this appeal, let the record be submitted to the Hon'ble the Chief Justice for referring the case to a third Judge. The points involved are: (1) Whether the order passed by the learned District Judge of Agra for payment of the court-fee before the date of healing is correct and, (2) In case the appeal is allowed what directions should be given to the District Judge as to the time when the requisite court-fee has to be paid.
Harish Chandra, J.
15. It is not necessary to state the facts which have been fully stated in the two judgments of my learned brothers.
16. The Succession Act, 1925, (Act 89 [xxxix] of 1925) no doubt contains no provision with respect to applications for probate corresponding to the provisions contained in Section 379 relating to applications for succession certificates; which require every application for a succession certificate or for the extension of such certificate to be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act in respect of the certificate or the extension applied for. If the application is allowed, the sum so deposited is expended in the purchase of the requisite stamp and the balance, if any, is refunded to the person by whom the deposit was made. Article 11 of Schedule 1, Court-fees Act, 1870, (Act 7 [VII] of 1870) prescribes the court-fee to be paid on probates and if Section 19 I Court-fees Act, had not been there, it may perhaps have been possible to hold that the court-fee payable on a probate was not payable until after an order entitling the petitioner to the grant of probate had actually been made. But in view of the clear provisions of Section 19-1, Court-fees Act, which forbids the making of an order entitling the petitioner to the grant of probate until the Court is satisfied that the fee mentioned in Article 11 of Schedule 1, has been paid, I fail to see how it can be legal for a Court to pass a conditional order entitling the petitioner to the grant of probate and directing that probate be granted to him on payment of the requisite court-fee. As has been pointed out by my learned brother Waliullah J., according to the prevailing practice of this Court such a conditional order is usually passed in all probate cases in which the Court is satisfied that the petitioner is entitled to the grant of probate. But apparently this is done in ignorance of the mandatory provisions of Section 19-1, Court-fees Act. My attention has been drawn to a number of rulings. But in none of these rulings has this point been considered. No doubt, certain statements contained in these rulings lead to the inference that the Court did not regard the passing of an order entitling the petitioner to the grant of probate before the requisite court-fee had been paid by the petitioner as illegal. But the question which is before us was not considered in any one of these cases and the statements contained in these rulings cannot be properly termed even as obiter dicta.
17. In Benares Bank Ltd v. Bhagwan Das 34 A.I.R. 1947 All. 18, a Bench of this 'Court held that the court-fee to be paid on letters Of administration (the provisions regarding payment of court-fee on probate and letters of ad-ministration are the same) was the court-fee due at the time when letters of administration are issued so that if there has been an amendment of the Court-fees Act after the order entitling the petitioner to the grant of letters of administration has been passed, the court-fee to be paid would be in accordance with the amended Act. A perusal of the judgment shows that their Lordships were conscious of the fact that according to the provisions of Section 19-1, Court-fees Act, an order entitling the petitioner to the grant of letters of administration could not be passed without the payment of court-fee due on such letters of administration and there is nothing in the judgment to support the contention that the payment of the court-fee is not required until after an order entitling the petitioner to the grant, of probate or letters of administration has in fact been made. In Sheo Baran Singh v. Mt. Kulsumunissa a point was raised that the application for probate was not competent inasmuch as the fee mentioned in Article 11 of Schedule 2, Court-fees Act, had not been paid. Their Lordships point out that Section 19-1, Court-fees Act, merely requires that the Court shall not grant probate until the fee had been paid and that it does
not say that the Court shall not try an application for probate or letters of administration until the fees are paid or that the payment of the fees is a condition precedent to the making of the application.
The view taken in this ruling follows from a plain reading of Section 19-1, Court-fees Act, but it gives no support to the appellants' contention and in my view the passing of a conditional order such as is suggested by my learned brother is not in accordance with law.
18. The alternative suggestion that has been made by my learned brother is also not free from difficulty. The suggestion is that after the Court has decided that the applicant should succeed, it may stay its hands at that stage and call upon the applicant to pay the necessary court-fee on the probate and then, after the applicant has complied with the direction of the Court, it may pass an order granting a probate. In my view the decision that the applicant should succeed is equivalent to an order entitling the petitioner to the grant of probate and cannot be passed until the requisite court-fee has been paid in view of the clear provisions of Section 19-1, Court-fees Act.
19. The question, however, that arises is : 'At what stage before the order entitling the petitioner to the grant of probate is made will the Court be justified in requiring the petitioner to pay the requisite court-fee?' There are, as I have said before, no provisions with respect to applications for probate similar to the provisions of Section 379, Succession Act, relating to succession certificates. As a matter of fact, this is one of the grounds urged on behalf of the appellants in support of the contention that the petitioner in a probate case cannot be required to pay the re-quisite court-fee until after an order entitling him to the grant of probate has in fact been made. But my view is that a Court has ample inherent powers in a matter of this kind and that it is open to it to require the payment of the requisite court-fee to be made by the petitioner at any stage before it makes an order entitling him to the grant of probate that may appear to it to be just and proper.
20. My answer, therefore, to the first of the two points referred to me for opinion is that the order passed by the learned District Judge of Agra requiring the payment of the court-fee be fore the date of hearing is correct.
21. In view of the answer that I have given in regard to the first point the second point does not arise.
22. Let the record be returned to the Bench concerned.