1. Lala Manmohan Das applied for the grant of Letters of Administration in respect of the assets of his deceased father Lala Madho Prasad who held some shares of the Imperial Bank which are in deposit in the Imperial Bank at Calcutta. On 25th October 1934 his application was granted and Letters of Administration were ordered to be issued to him. The office naturally demanded the payment of court-fee before furnishing the Letters of Administration. To this the applicant objects.
2. Learned Counsel for the applicant relies on a Full Bench ruling of the Bombay High Court in Keshavlal Punjalal Sheth v. Collector of Ahmedabad 1924 Bom. 228. No doubt this ruling supports the applicant to a great extent, but the learned Judges over-ruled a previous decision of their own Court in Kashi Nath Pareshram v. Gourabai 1915 Bom. 18. The view expressed by Beaman and Hayward, JJ., in the last mentioned case was that if an applicant who is a member of a joint Hindu family applies for probate of a will of his deceased father bequeathing the joint family property to him, probate can be granted only on the assumption that the will was genuine and valid and that the testator had authority to make the bequest and that probate cannot be granted on the sup-position that the property being joint family property the will itself was invalid and that if the applicant wants probate he must pay the duty. We are not able to see how this point is met in the judgment delivered in the Full Bench case. The judgment proceeds principally on an interpretation of Section 19-D, Court-fees Act, and on the view that the provisions of that section would not apply strictly to' a joint family. That may be quite correct, but what, with great respect, we would say has been overlooked is that the duty is not payable under Section 19-D, but under Section 6. Court-fees Act, and under Article (11). Schedule 1, Section 19-D, merely provides that where Letters of Administration of the effects of a deceased person have been granted they shall be deemed to be valid and available by the administrator even notwithstanding that the amount or value of such property is not included in the amount or value of the estate. That is to say, the holder of the Letters of Administration is entitled to recover the amount or property, and the opposite party cannot resist his claim on the ground that full court-fee had not been paid on the Letters of Administration. That section has no application to the point which arises in this case. Section 19-D implies that Letters of Administration have been issued and court-fee already paid thereon though not sufficient.
3. Section 6 requires that no document of any kind specified in the first schedule shall be furnished by any public officer unless in respect of such document there be paid a fee of an amount not less than that indicated by the relevant schedule. The office of this Court cannot issue Letters of Administration to the applicant until the duty required by Article (11) has been fully paid. Article (11) does not say that there would be an exemption from the payment of duty where Letters of Administration are not absolutely necessary and they are only applied for either by way of precaution or for the sake of convenience. If a person chooses to apply for Letters of Administration whether absolutely necessary or not he has got to pay the duty. In Banwai Lal v. Maksudan Lal 1930 All. 99, it was laid down that there was no legal bar to the granting of a Succession Certificate to a member of a joint Hindu family who gets the rights by survivorship and not as heir and that if he chooses to apply for Succession Certificate or Letters of Administration as legal representative of the deceased person such certificate may be granted, of course, on payment of full fee.
4. The learned Counsel for the applicant contends before us that the necessity for the application has arisen because the Imperial Bank refuses to handover the shares without the production of Letters of Administration or a Succession Certificate. We are not concerned with the question whether the Imperial Bank is rightly or wrongly refusing to do so. It may be that under some rule under which shares are issued it is necessary that the share-holder should profess to own it on his own behalf exclusively; but if the Imperial Bank is wrongly refusing to hand over property belonging to the plaintiff the remedy of the plaintiff lies by suit. If he prefers to apply for Letters of Administration in order to comply with the wishes of the Imperial Bank there is no option, but to pay the full court-fee. Dissenting from the view expressed by the Full Bench in Keshavlal Punjalal Sheth v. Collector of Ahmedabad 1924 Bom. 228, and adopting the principle of the decision of Beaman and Hayward, JJ., in Kashi Nath Pareshram v. Gourabai 1915 Bom. 18, we hold that the applicant must pay court-fee. If the court-fee is not paid Letters of Administration shall not be issued. We allow two months for payment of the court-fee. If the amount is not paid within the time allowed the case will be put up for consideration whether Letters of Administration should not be revoked.