1. This appeal arises out of a probate proceeding and relates to the costs which have been taxed in the decree of the Court below. It raises a question of principle affecting the practice in subordinate Courts. An application for probate was made on the 18th January 1924, and on the 1st March a caveat was entered. On the 30th August evidence was recorded and probate was ordered to be granted to the applicant. The office of the District Judge taxed the costs on the scale fixed for original suits. An objection was raised by the caveator to the amount taxed, but the learned Judge, relying upon Chap. 16, Rule 2, High Court Rules, dismissed the objection.
2. In our opinion Chap. 16, Rule 2, High Court Rules had no direct application to the case at all. The suits and applications spoken of there refer to suits and applications which are tried on the original side by the High Court itself and do not refer to suits tried by subordinate Courts. The case had to be decided in accordance with Chap. 21 of the General Rules (Civil) for subordinate civil Courts. A graduated scale is prescribed for calculating fees in
suits, or appeals from original and appellate decrees in suits for money, effects or other personal property, or for land or other immovable property of any description, when such suits or appeals are decided on the merits after a contest.
3. On the other hand, Rule 26 prescribes a different scale for miscellaneous judicial cases. It is conceded that if Rule 22 is not applicable then the only other rule which would apply would be Rule 26.
4. Rule 22 refers to suits and to appeals. It does not refer to applications. If therefore the probate proceeding are a suit, Rule 22 would apply.
5. Under the Probate and Administration Act of 1881, which was in force when this case was decided by the Court below, applications for probate are throughout the Act called 'petitions' and the applicant is called petitioner.' Section 83 of the Act provides that in any case in which there is contention, the proceeding shall take, as nearly as may be, the form of a suit, according to the provisions of the Civil Procedure Code, in which the petitioner for probate shall be the plaintiff, and the person who may have appeared as aforesaid to oppose the grant shall be the defendant. In our opinion this section, instead of helping the respondent, is really against him, for it clearly implies that the proceeding is not itself a suit but is to take, as nearly as may be, the form of a suit. If the proceeding were itself a suit, there would be no necessity to say that it should take the form of a suit when there is a contention. In the case of Sundrabai Saheb v. The Collector of Belgaum  33 Bom. 256 a Bench of the Bombay High Court held that the proceedings in an administration case were not a suit. A similar view was expressed in the case of Baijnath Prasad v. Sham Sundar Kuer  41 Cal. 637.
6. This view is further strengthened by the circumstance that in the corresponding High Court Rules, Chap. 16, Rule 2, the language is:
in a suit and in an appeal from the original decree in a suit, for effects or other personal property, or for land and other immovable property, or for specific performance, or for an injunction, or for damages in a suit under Section 42, Act 1 of 1877, and in a contested application for probate or letters of administration.
7. It is obvious that a contested application for probate is mentioned separately and is not considered to be included in the expression 'in a suit.' It was apparently considered that in a contested probate proceeding in the High Court the scale of counsel's fee should be the same as that of original suits, and it is on that account that such an application was expressly mentioned in Rule 2.
8. We are, therefore, of opinion that the rule applicable to the case was Rule 26, Chap. 21, General Rules (Civil) for civil Courts and not Rule 22, and that the taxation of the costs was not correct.
9. The last ground of appeal is based on the circumstance that the applicant engaged a vakil on the 26th January 1924 who filed a certificate of fees on the 1st March 1924 on which date caveat was entered. Later on, on the 30th August 1924, he wished to offer himself as a witness and asked the permission of the Court to do so. The permission having been granted, he was examined as a witness. He did not, however, subsequently take any part in the conduct of the proceedings. The contention on behalf of the appellant is that his certificate of fee should not be taken into account.
10. It is likely that the pleader did not expect that the application would be contested, and he would have to appear as a witness because he had been consulted in the preparation of the draft. Had he expected that his evidence would be required, we assume that he would have considered it undesirable to agree to be engaged in the case. Under the circumstances we are of opinion that the certificate filed by him before he was examined as a witness cannot be ignored, especially when permission was granted to him by the Judge to give evidence in the case. The appeal is accordingly allowed and the amount of costs entered in the decree of the Court below varied, so as to bring it in harmony with the scale prescribed in Rule 26. The appellant will have the costs of this appeal. The costs of this appeal, however, will have to be calculated in accordance with the High Court Rules.