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Praveena Bhardwaj Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberProbate Case No. 13 of 1971
Judge
Reported inILR1975Delhi151
ActsSuccession Act, 1925 - Sections 276; Court Fees Act, 1870
AppellantPraveena Bhardwaj
RespondentState and ors.
Advocates: J.K. Soni,; V.K. God,; S.S. Dalal and;
Cases ReferredIn P. K. Mundan v. State
Excerpt:
(i) indian succession act - section 276 -- petition under, for grant of probate or letters of administration -- court-fee on -- point of time when payable -- correct procedure indicated -- court-fees act, schedule i, article 11.; by (full bench):-; (i) when a petition for grant of probate or letters of administration under section 276(1) of the indian succession act is made, the court-fee payable thereon is the fixed court-fee prescribed in article 1 of schedule ii to the court-fees act.; (ii) the court-fee payable on the probate or letters of administration as prescribed in article 11 of schedule i to the court-fees act need not be paid along with the application.; (iii) the petitioner has to state in the petition, inter alia, the amount of assets which are likely to come to his hands.....avadh behari rohatgi, j.(1) the petitioner has made an application for grant of proliate under s. 276 of the indian succession act. the question which arises for consideration is: what is the point of time or stage when he should be directed to pay court-fee? there is a divergence of judicial opinion. before noticing the conflict i will first set out the relevant statutory provisions.(2) a petition for the grant of a probate or letters of administration is made imdcr ss. 276 and 278 of the indian succession act. after the petition is made ihe question of court-fee immediately suprings rip. s. 19-1 of the court fees act is the provision around which the controversy centres and it is as follows: '19-1.payment of court-fees in respect of probates and letters of administration.-- (1) no order.....
Judgment:

Avadh Behari Rohatgi, J.

(1) The petitioner has made an application for grant of Proliate under S. 276 of the Indian Succession Act. The question which arises for consideration is: what is the point of time or stage when he should be directed to pay court-fee? There is a divergence of judicial opinion. Before noticing the conflict I will first set out the relevant statutory provisions.

(2) A petition for the grant of a probate or Letters of Administration is made imdcr Ss. 276 and 278 of the Indian Succession Act. After the petition is made ihe question of court-fee immediately suprings rip. S. 19-1 of the Court Fees Act is the provision around which the controversy centres and it is as follows:

'19-1.Payment of Court-fees in respect of probates and letters of administration.-- (1) No order entitling the petitioner to the grant of probate or letters of administration shai! be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set Forth in the third schedule, and the Court is satisfied that the fee mentioned in No. Ii of the first schedule has been paid on such valuation.'

(3) Schedule I of Article 11 provides for the rate of court-fee and is as under:-

'11. wiv-'n thi: p.mount Hi- valu'; Two per centum on Probate of a wili oi- i of the property in respect of such amount or Iciters of administra- 1 wh'ch the grant of probate value. corporation with or without 1 or letters is n1:'.de ex^xds will annexed. ' one lhoilsan..! rupoes, but does not cxceei.l ten ihou'.aiid I rupees. When such aniolint or v.ili.i'-' Two and one half 1 exceeds ten thousand i-lioecs, ! per centum on such ' but does i-iot exceed , amount or value. 1 thousand rupees. ! When such amount or value ! exceeds fifty thousand nnecs. Provided that when. after Thres per centum Oil 1 the grant of a certificate under 1 sir'li amount or ; the Succession Cenificate 1 value. , Act, 1889, or under the Regulation of the Bombay Code No. 8 of 1827, in respect 'of any prOpeny included in i , an estate, a grant 'f probate 1 1 or letters of adminisiration is 1 made in respect of the same ! 1 estate, the fee payable in 1 respect of the letter grant i shall be reduced by the 1 amount of the fee pa'd in i 1 respect of the former grant. 1

In the Punjab the Article has been amended as under:

FORthe words 'Two per centum' 'Two and one half per centum' and 'Three per centum' in the third column to Art. 11 substitute the words 'Two and one half per centum' Three and one quarter per centum' and 'Four per centum' respectively. -Punj. Act Xiv of 1958, S. 4 (25-4-1.958): Art. 31 of 196, S.88 (1-11-1966).'

In Delhi the rate is the same as that in the Punjab-Sec Gsr 842 Gaz. Ind. Part Ii S.3(l) p. 1039 (w.e.f. 1-8-1959).

(4) Section 56 of the Estate Dirty Act 1953 also bears on' this subject and provides as follows:-

'56.Grant of representation, etc., not to be made unless particulars arc furnished to the Controller (1) in all cases in which a grant of rcprcsenl.alion is applied for- (a) the executor of the deceased shall, to the best of his knowledge and belief, specify in an appropriate account annexed to the affidavit of valuation filed in Court under section 19-1 of the Court-Fees Act, 1870, all the property in respect of which estate duty is payable upon the death of the deceased and shall deliver a copy of the affidavit with the account to the Controller; and no order entitling the appellant to the grant of representation shall be made upon his application until he has delivered the account prescribed in clause (a) and has produced a certificate from the Controller under subsection (2) of section 57 or section 67 that the estate duty payable in respect of the property included in the account has been or will be paid, or that none is due, as the case may be. (2) In all cases in which a grant of a succession certificate is applied for, a copy of the application shall be furnished by the applicant to the Controller and no order entitling the applicant to the grant of such a certificate shall be made upon his application until he has produced a certificate from the Controller under sub-section (2) of section 57 or section 67 that the estate duty payable in respect of the property mentioned in the application has been or will be paid, or that none is due, as the case may be.'

(5) Broadly speaking there are two strands of thought. According lo one view court-fee must be paid before the hearing of the probate petition is commenced. Before setting down an application for Probate or Letters of Administration for final hearing the court has to be satisfied, according to this view, that the fee payable under Schedule I, Article 11 of the Court-fees Act has been paid or that no such fee is payable. This is the view of a Division Bench of the Patna High Court in Mundrika Prasad Singh v. Mst. Kachnar Kuer and others, : AIR1955Pat362 (6) (I shall refer to it as the Patna view). The Court held that the court-fee payable under Sch. I Article 11 on the valuation fixed by the court is to be paid before the hearing of the proceedings (which in the very nature of things includes the order of the court entitling the petitioner to the grant of probate or Letters of Administration) and not just before the issue of a Probate lo the applicant. On this view the stage at which the Probate or Letters of Administration is actually issued by the office is one which is not contemplated in S. 19-1 and is a ministerial act which has nothing to do with judicial function of the court.

(6) The other view is that the court-fee is not payable until the court has proceeded with the hearing of the application by taking evidence, affording opportunity to the petitioner to propound the will and to establish his right to an order entitling him to the grant of Probate or Letters of Administration. Only when the Court has arrived at the decision that the propounder is entitled to the grant of Probate or Letters of Administration, then only, but before the order entitling the petitioner to the grant of Probate or Letters of Administration is made the court-fees mentioned in Art. 11 of the first Schedule of the Court-fees Act need be paid upon the valuation found by the , Court under Section 19-H. A Division Bench ruling of the Calcutta High Court in Pritish Kumar Mitra v Prosanto Kumar Mitra, : AIR1970Cal236 (12) may be taken fairly as the representative of this opinion. I will call it the Calcutta view for the sake of pcivity. Let me examine the strengths and weaknesses of the two views and also other rulings of the courts having a bearing on this question. I first turn to the Calcutta view. The basic ruling in the Calcutta High Court appears to be a decision of Sen J. in The Goods of Mrs. Lilian Singh : AIR1943Cal19 ( 10). Without the payment of the fee, it was argued before the learned judge, there was no competent application before the court. Sen J. rejected this contention and said:

'THEsection says that the Court shall not grant probate until the fees are paid. It does not say that the Court shall not try an application for probate or letters of administration until the fees arc paid or that the payment of the fees is a condition to the making of the application.'

(7) This decision was followed in Pritish Kumar Mitra (supra). (12) In that case the Additional District Judge had refused to go on with the hearing of the probale proceedings until court-fee payable on the valuation made in the Affidavit of Assets had been paid. The petitioner preferred a revision petition to the High Court. The High Court reversed the decision of the Additional District Judge and directed him to continue the hearing of the proceedings till the genuineness of the will is proved and the right to the grant of representation to the petitioner is established. The Division Bench observed:

'LANGUAGEclearly shows that in a Probate proceeding Courtfees are paid on the grant hut not on the application. An unsuccessful propounder of a Will is not liable to pay Court-fees mentioned in Sec. 19-1 of Court fees Act.'

(8) The Division Bench dissented from the view taken in Mundrika Prasad Singh v. Mst. Kachnar Kuer and others, : AIR1955Pat362 (6) and said:

'WITHOUTentering into a detailed discussion of the reasons mentioned in the judgment of the Patna High Court : AIR1955Pat362 , we need only say that though hearing culminates in the order mad.' upon such hearing, the order may not only be an order entitling the petitioner to the grant of Probate, but also an order rejecting his application for Probate. If latter is the result obtained in the Probate proceeding then Sec. 19-1 is not attracted. Their Lordships of the Patna High Court do not appear to have considered that aspect.'

The Division Bench approved of a Punjab decision in Mrs. Susheela Dantyagi v. The state and others, ILR (1956) P&H; 1356.

(9) If the Patna view is taken to be correct it will virtually equate a petition of Probate with a plaint or memorandum of appeal. On a plaint or a memorandum of appeal court-fee is to be paid at the time of the filing of the suit or the appeal. If the petitioner is not to get a hearing of his Probate petition there will be no difference in filing a suit or in making an application for Probate in so far as the matter of court-fee is concerned. For my part I think the Legislature doe? not equate the two proceedings. There is a word of difference between the two. On a Probate petition court-fee is payable before an 'order entitling the petitioner to the grant of a Probate or Letter of Administra on is made. The words 'entitling the petitioner to the grant of Probate or Letters of Administration' in the section are of per-emptory and paramount importance. They furnish us with the key to the meaning of the section. They are the key words, so to speak. Plainly the section means that no order entitling the petitioner to the grant of a Probate or Letters of Administration shall be made upon his application for such grant until the petitioner has paid the court-fee on the valuation of the property. On its hearing the legislature has not placed any embargo. The Patna view means this that no court shall proceed with the hearing of a Probate petition until court-fee has been paid. But court-fee is charged on Probate and not on application for or order granting Probate: See In re Jerbai K. Kapadia, Air 1945 Bom 1. Court-fee on Probate oiLetters of Administration is payable under S. 19-1 and not under S. 6 of the Court-fees Act: See The Collector of Maldah v. Nirode Kamini Dassy, (1913) 17 CWN 21. The applicant for the Probate of a will is not liable under any provision of law to pay the amount of court-fee out of his own property. These sums are to be paid out of deceased's estate: See In the Goods of Earnest Paymond Yakchee, : AIR1956All152 . In Pritish Kumar Mitra (supra) (12) it was said:

'ANapplication for Probate or Letters of Administration with a copy of the wiii annexed cannot be equated to a Plaint or for the matter of that a Memorandum of Appeal.'

Now Section 19-K provides:

'19-K,-SECTIOAS 6 and 28 not to apply to probates or letters of administration.-- Nothing in section 6 or section 28 shall apply to probates or letters of administration.'

(10) It would, thereforee, be a fallacy, in my opinion, to equate the two proceedings and to call upon the petitioner to pay court-fee at the very outset when he does not know whether he will succeed in proving the will and establishing in himself the right to the grant of representation. It is as well possible he may fail. If fails he loses the amount of court-fee which in cases of big estates may be substantially large. No executor is willing to pay the court-fee out of his own pocket and run the risk of losing it. I agree with the Calcutta view that this is the main flaw in the Patna view and this compels me to reject it.

(11) The proponents of the Patna view place considerable reliance on a Division Bench ruling of the Bombay High Court in Re Jeioai K. Kapadia, Air 1945 Bom 1 I do not think that this authority supports the Patna view. The Patna judges in their decision in Mundirka Prasad (supra) (6) do not notice this authority at all. in the Bombay case Stone Cj said:

'IT is necessary, I think, at this stage to point out that courtfees chargeable on probate under item 11 of Sch. I to the principal Act are in no sense a death duty, and are only payable if probate is taken out; so that if an estate can he administered without the necessity of a grant of probate, no probate fee in fact becomes payable at all.'

(page 3). Chagla, J. said:

'WHATis charged is neither the application for probate nor the order entitling the petitioner to grant of probate but the probate itself.'

(12) The crucial question them is: what is the point of time when the petitioner should be called upon to pay court-fee if the court-fee is not. to be paid on the petition itself and before hearing. S. 19-1 provides that no order cntitling the petitioner for the grant of a Probate shall be made unless two conditions are satisfied. Firstly that the petitioner has filed in a court a valuation of the property in the form setforth in the Schedule and secondly that the court is satisfied that the fee mentioned in item Ii of Sch. I has been paid on such valuation. Chagia J put the crux of the question in these words:

'the order for grant of Probate ought thereforee never be made unless and until the fee is paid on the valuation.'

And again:

'SECTION 19-1 is decisive of the fact that payment of the fee must be made not only before the grant itself is issued; but before any order for the grant to issue is made'

(page 5). Chagia J answered the question and observed:

'TOmy mind S. 19-1 sets up a machinery for calculating the amount of court-fee to be paid on the probate and also lays down the time when the court-fee is to be collected. The court-fee is to be collected at a point of time anterior to the making of the order entitling the petitioner to the grant of probate. It will be noticed that S. 19-1 does not indicate when exactly prior to the making of the order, such payment is to be made. This lacuna in the statute is filled up by our High Court Rule 607 which provides that every application for probate shall be accompanied by a certificate of the Prothonotary and Senior Master that duty payable has been paid unless the Hon'ble the Chief Justice or the Judge hearing Testamentary Matters shall otherwise direct. thereforee, under High Court Rule 607, no application for probate can be made unless the petitioner produces a certificate from the Prothonotary and Senior Master to the effect that the duty payable under S. 19-1 has been paid.'

(page 6).

(13) It would thus appear that the Bombay ruling turns mainly on the rules of that High Court. We have no such rule. thereforee, the statute ought to be our guide. Two things appear to be unquestionable. Firstly, that there is a lacuna in the statute. Chagia J. thought so. So was the view of Wali Ullah J in Ghandharp Singh and others v. Chameli Devi and another, : AIR1948All268 .

(14) Secondly, on the plain words of the statute Court-fee is to be collected at a point of time anterior to the making of the order entitling the petitioner to the grant of Probate. What ought to be this point of time is really a difficult question to answer when the statute does not throw any light on this. Birt the point of time cannot be the commencement of the proceedings or the hearing thereof nor will a court be justified in refusing to go to a hearing. The fee on a Probate is payable not upon the application but as a condition precedent to the grant of Probate. In a Patna case Meredith J. said :

'THEcrucial time would be the time when probate is granted.'

(Suraj Narain Gupta v. Sarosi Bala Devi and others, : AIR1945Pat86 .) (1)

(15) This was also the view of Meredith J. in Jagat Kishore Prasad Narain Singh v. Smt. Girja Kishori Devi, : AIR1945Pat361 . The Division Bench of Patna in Mundirka Prasad Singh (supra) (6) found these two decisions 'irreconcilable' and argued for the acceptance of their own 'interpretation of S. 19-1 that the fee payable is before the hearing.'

(16) Some judges in order to get round the difficulty have propounded what may for convenience be called the theory of 'conditional orders.' The representative of this view is the decision of Kapur J. in Mrs. Susheela Dantyagi (supra)(13). According to this view after the trial and after the judge has given his decision in favor of the petitioner that Probate should be granted 'the Probate duty is payable but not at the time of the trial or at the time of the petition. After it is decided that the will is genuine and the propounder is entitled to Probate, court-fee must be paid before the order for issue of Probate is made. Kapur J. recalled that this was the practice of the Lahore High Court and he himself preferred to follow it. He approved of the decision of Sen J. in the Goods of Mrs. Lilian Singh (supra) (10), and granted a conditional order.

(17) The question of 'conditional order' was also considered in Ghandharp Singh and others, (supra) (7). In that case a difference of opinion arose between Wali Ullah and Mathur JJ. in an appeal against an order passed by the District Judge to the effect that the Probate for final hearing. Wali Ullah J. said that there was a long standing for final hearing. Wali Ullah J. said that there was a long standing practice in Allahabad High Court of making conditional order-a practice which has certainly the merit of having been followed in Lahore and one would assume in Calcutta too. Wali Ullah J. said:-

'SECTION 19-1(1), Court-fees Act provides that an order of the Court in favor of the petitioner i.e., an order granting the application shall not be made until certain conditions are satisfied. It seems to follow, thereforee, 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, thereforee, 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 Art. 11. of Sch. I, 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.'

Wali Ullah 3. then went on to say :

'ITwill be noticed that S. 19-1 docs '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 rulesP.ulcs of the Court (or in the case of subordinate Civil Courts, by adding a rule in the General Rules. Civil similar to R. 56 of Chapter Xi which applies to an application for a succession certificate). Again, it may be noticed that Art. 11 of Schedule I, 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 stan ding practice in this Court of passing an order in this form: 'Let probate issue as prayed on court-fee being first paid.'

INthe 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 mayp ass a conditional order as is the practice of this Court referred to above. This will result in substantial compliance with the provisions of S. 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 reasonable manner and, in my opinon, the prevailing practice of this Court is not inconsistent with or against the provisions of S. 19-1, Court Fees Act.'

(18) Mathur J. having differed from Wall Ullah J. the matter came up before Harish Chandra J. to whom the alternative suggestions given by Wali Ullah J. did not appeal. The view that found favor with him was that a court has ample inherent power in a matter of this kind and it is open to the court to require the payment of requisite court-fee to be paid by the petitioner at any stage before it makes an order entitling him to a grant of Probate that may appear to it to be just and proper.

(19) To the judges of the Division Bench of Patna High Court also both the suggestions of Wali ullah J. were unacceptable and for this reason they said that this difficulty could only be resolved by the interpretation which they put on Section 19-1, Court fees Act.

(20) For my part I ffnd it difficult to appreciate the decision of Harish Chandra J. in Ghandharp Singh and others (supra) (7) when he said that in a matter of this kind the court has ample inherent powers and that it was 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. Once inherent powers are invoked we find ourselves on a precarious and slippery ground. Inherent powers may be exercised differently by different judges. There will be no uniformity of practice. Though Harish Chandra J. rejected the suggestions of Wali Ullah J. but his own view is no less unsatisfactory. It is ambulatory and imprecise. Leaving the question to inherent powers is no answer. There ought to be uniformity and for uniformity we require something firm and definitive.

(21) For my part I would in the main agree with the view propounded in Pritish Kumar Mitra (supra) (12) which in turn is based on In the Goods of Mrs. Lilian Singh (supra)(10). The latter decision was followed in Mrs. Susheela Dantyagi (supra) (13) which in its own turn was approved by the Division Bench in Pritish Kumar Mitra (supra)(12).

(22) That the court-fee is required on the Probate is the view ut Stone CJ. and Chagia J. This view is reinforced by the words used in S. 56 of the Estate Duty Act where the Legislature has used another expression, namely, 'grant of representation.'

(23) On the authorities, thereforee, there is none except Patna, which compels me to hold that a person must pay court-fee on the petition itself otherwise the hearing .will be denied to him. The Legislature did not want to deny the hearing. All that it has said is that no order entitling the petitioner to the grant of representation shall be made until the court-fee is paid. This will happen only if the petitioner succeeds but not when he fails in proving the will and establishing in himself a right to the grant of representation.

(24) In cases of succession certificate under S. 379 court-fee deposited by the petitioner is refunded to him if it is not expended and the certificate is not granted. But there is no provision for refund in case of Probate and Letters of Administration. S. 19-1 requires that before an order is made issuing the Probate which certainly cannot be made if the petition is dismissed and can only be made after a judge decides in favor of the will the probate duty should be paid by the petitioner. It is not necessary for the petitioner to pay the court-fee at the time of the petition or of the trial but it may be paid after the trial, after it is decided that the will is genuine and the propounder is entitled to the Probate and before the order for issue of the Probate is made. The fee prescribed by Art. 11, Sch. I is only in respect of Probates or Letters of Administration and not in respect of the application for Probate (for which see Article 1 of Sch. 2), S. 19-1 makes payment of Court-fee mentioned in item Ii to the first schedule to the Court-fees Act a condition precedent to the making of an order for the grant of representation: (See in the Goods of Durga Charan Mitter : [1959]36ITR1(Cal) (11).

(25) It is true that Harish Chand J. and Mathur J. in Ghandharp Singh and others (supra) (7) held that the section did not authorise a court to pass a conditional order entitling the petitioner to the grant of a probate and directing that a Probate be granted to him on payment of requisite court-fee but Kapur J. and the practice prevailing in Lahore and Allahabad High Courts were all in favor of making a conditional order for grant of Probate.

(26) S. 19-1 was inserted by Act Ii of 1890 which amended the Court-fees Act. Duty was being collected not on the applications for but on the grant for Probates or Letters of Administration; and certain cases it was found that the persons were satisfied with merely obtaining an order on their petitions without actually taking out Probates or Letters of Administration. It was with a view to guard against this evasion that S. 19-1 was inserted : See in the Matter of the Estate of C. Govindaswamy, : (1937)2MLJ899 . In consonance with this intention of the Legislature a court of law may adopt this procedure. Let the hearing of the petition proceed. After the genuineness of the will is established and the right of representation in the petitioner is upheld the court may in so many words say in its order that it will not make any order entitling the petitioner to the grant of representation until court-fee is paid within such and such time. The petitioner may comply with this direction and an order thereafter may follow. This is very nearlyaccepting the suggestions of Wali Ullah, J. If human ingenuity can evolve a third method to comply with the terms of the statute I will be all for it. But I profoundly disagree with the suggestion that the petitioner must pay court-fee before the petition is set down for final hearing and if he does not do so we deny him the hearing. To this process of reasoning I for one cannot assent.

(27) Even the rule framed by the Bombay High Court is not inexorable. In an uncontested case the petitioner may pay court-fee before the hearing but where he fears opposition he may ask the testmentary judge to waive the rule in his favor. But to place an interpretation on S. 19-1 such as has been done in Patna is to fly in the face of the statute.

(28) Since this question arises very frequently on the Original Side and is of imperative public importance I order that the papers be placed in this and the connected cases before my Lord the Chief Justice for the constitution of a larger Bench preferably of three judges since there arc conflicting Division Bench decisions on this question.

T.V.R. Tatachari, J.

(29) The question referred for consideration by this Full Bench is as under:-

'WHENa petition for grant of probate or Letters of Administration under Section 276 of the Indian Succession Act is made, what is the point of time or stage when the petitioner should be directed to pay the court-fee payable on the probate or Letters of Administration under the Courtfees Act?'

(30) The said question has been rcrcsred by one o[ us (Avadh Behari J.) sitting on the original side of this Court. A number of cases have been listed before us along with probate Case No. 13 of 1971, as the same question arises in all of them. We, thereforee, propose to give our opinion on the aforesaid question in Probate Case No. 13 of 1971, and the same would govern all the other cases.

(31) For a proper appreciation of the above question, it is necessary to refer to the relevant provisions in the Indian Succession Act, and the Court-fees Act. Section 276(1) of the Indian Succession Act provides that an application for probate or for letters of administration. shall be made by a petition and requires that the petition should state inter alias the amount of assets which are likely to come to the pelitioner's hands. Section 276(3) requires that where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is siluate in another State, the petition shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate. Section 278 makes a similar provision specifically with regard to a petition turn letters of administration. Section 283(1)(c) provides that in all cases the District Judge or District Delegate may, if he thinks proper. issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and sec the proceedings before the grant of prohate or letters of administration. Section 284(1) provides that caveats against the grant of probate or letters of administration may he lodged with the District Judge. Section 259 is material, and it reads as under:-

'GRANTOF Probate To Be Under Seal Of COURT- When it apears to the District Judge or District Delegate that probate of a will should be granted, he shall grant li'ic same under the seal ol' his court in the forin sel hi'th in Schedule VI.'

(32) The relevant portion of Schedule Vi which sets forth the form of probate reads as under:-

'I,.............JUDGEof the District of ............ hereby make known that on the ...... day of ......... in the year...... , the last will of .......... late ............... of, a copy whereof is hereunto annexed, was proved and reGISTERED before me. and that administration of the properly and credits of the said deceased, and in any way concerning his will was granted to................ the executor in the said will named, ................'

(33) Coming now to the provisions of the Court-fees Act. Section 4 provides, inter (ilia, that-

'NOdoci.iment of any of the kinds specified in the first or second schedule to this Act, annexed, as chargeable with fees shall be filed, exhibited or recorded in, or shall be received or furnished by ............ the High Court of Delhi...............in any case coming before ............that court in the exercise of its ordinary or extraordinary original civil jurisdiction. ........ .unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such documents.'

(34) Article 1 of Schedule Ii of the Act requires the payment of a fixed fee on an application or petition, and it is common ground before us that the actual petition for probate or letters of administration has to bear the said fixed court-fee. As regards the court-fee payable on the probate or letters of administration, however, it is provided in Article 11 of Schedule I to the Court-fees Act as under:-

11. Probate of a When the amount or value Two per centum on will or letters of the property in respect such amount or of administra- of which the grant of value. ion or with- probates or letters is made In Delhi & out the will exceeds one thousand Pumjab annexed, rupees but does no exceed 2.5 per ceniuni on ten thousand rupees; such amount or value When such amount or Two and a half per value exceeds ten thousand cenrtum on such rupees but does not exceed amount Or value. fifty thousand rupees; In Delhi & Punjab 3.5 per centum on such amount or value. When such amount or Three per centum value exceeds fifty thou- on such amount or sand rupees value. In Delhi & Punjab Four per centum on such amount or value.'

(35) It is also common ground before us that the court-fee mentioned in Article 11 is payable on the probate or letters of administration. The controversy is as regards the point of time or the stage at which the said court-fee is payable. On this aspect, Section 19-1(1) of the Court-fees Act is material, and it provides as under:-

'19-1(1)No order entitling the petitioner to the grpr.it of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court, a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation.'

(36) The answer to the question in controversy rests mainly on the interpretation of this provision. It clearly prohibits the making of an order entitling the petitioner to the grant of probate or letters of adminisiralion upon an application for such grant until the petitioner.

(I)files in the Court, a valuation of the property in the form set forth in the Third Schedule, and

(II)the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation.

(37) As regards the valuation mentioned in Section 19-1(1), it has to be noted that Section 19-H lays down the procedure for the determination of the said valuation. Briefly stated, the said procedure is as under:-

(I)Where an application for probate or letters of administration is made to any court other than a High Court, the Court shall cause notice of the application to be given to the Collector, and where such an application is made to a High Court, the High Court has to cause notice of the application to be given to the Chief Controlling Revenue Authority for the local area in which the High Court is situated.

(II)The Collector may inspect or cause to he inspected, the record of any case in which application for probate or letters of administration has been made, and if. on such inspection or otherwise, he is of opinion that the petitioner has under-estimated the value of' the property of the deceased, he may inquire into the matter. If after inspection, he is still of opinion that the value of the property has been under-estimated, he may require the petitioner to amend the valuation.

(III)if the petitioner docs not amend the valuation to the satisfaction of the Collector, the Collector may move the Court before which the application for probate or letters of administration was made, to hold an inquiry into the true value of the property.

(IV)On slich motion, the Court has to hold, or cause to be held, an inquiry and determine the true value of the property.

(38) The finding of the Court on such inquiry is final except in certain cases mentioned in Section 19-H.

(39) As pointed out above. Section 19-1(1) makes it clear that an order entitling the petitioner to the grant of probate or letters of administration should not be made until the petitioner has filed the valuation of the property in the prescribed form and has paid on such valuation the court-fee mentioned in Article 11 of the First Schedule of the Court-tecs Act to the satisfaction of the Court. But, the section does not expressly state when exactly the court-fee mentioned in Article 11 should be paid. In some decisions, the view has been taken that the said court-fee is payable along with the petition for the grant of probate or letters of administration, and in some other decisions the view has been taken that the court-fee should be paid after the filing of the petition but before an order entitling the petitioner to the grant of probate or letters of administration is made. It is this difference in the said views that necessitated the present reference.

(40) We consider that we should first see which view is the proper one to be taken on an examination of the relevant provisions ourselves before we advert to the decisions which have taken divergent views. We have already set out the various relevant provisions. A perusal of the same shows the sequence of events in the following manner. A person who desires to obtain a probate or letters of administration lias to file a petition under Section 276(1) of the Indian Succession Act. On that application, he has to pay the fixed fee mentioned in Article 1 of the Second Schedule of the Court-fees Act (i.e. for the petition as such). He has to state in the petition inter alla the amount of assets which arc likely to come to his hands as required by Section 276(1)(d) and (3) of the Indian Succession Act. He has further, either along with the application or at a later stage, to file in the Court a valuation of the property in the form set forth in the Third Schedule to the Court-fees Act as required by Section 19-1(1)OURT-FEES ACT, 1870^ of the said Act. The said valuation has to be verified by the Collector, and if necessary the court has to determine the valuation on a motion by the Collector as provided in Section 19-H of the Court-fees Act. This proceeding regarding the valuation may take place simultaneously with the proceeding in the Court for the grant of a probate or letters of administration. So far, the statutory provisions are clear.

(41) The question then is as regards the payment of the court-fee under Article 11 of the First Schedule to the Court-fees Act. Article 11 speaks of the court-fee mentioned in column 3 thereof as being payable for the document mentioned in Column I thereof viz. 'probate of a will or letters of administration'. The language in Article 11 clearly shows that the court-fee prescribed by it is payable for the probate or the letters uf administration, as distinguished from the fixed court-fee payable for the petition under Article 1 of the Second Schedule to the Court-fees Act. Now, a perusal of section 19-1(1)OURT-FEES ACT, 1870^ shows that it prohibits the making of 'an order entitling the petitioner to the grant' of probate or letters of administration until-

(I)he files the valuation of the property, and (ii) he pays the colfrt-fee under Article 11.

(42) Normally, after the filing of the petition for probate or letters to administration, while the proceeding regarding valuation may go on simultaneously, the court, in the proceeding in pursuance of the petition for probate or letters of administration, has to record the evidence adduced by the parties, hear the arguments on behalf of the parties and come to a conclusion as to whether the propounded will has been proved to be genuine or not. If it considers that the will has not been proved to be genuine, it has naturally to dismiss the petition. If, on the other hand, it considers that the will has been proved to be genuine and valid, it cannot, in view of the provision in Section 19-1(1)OURT-FEES ACT, 1870^ of the Court-fees Act, pass any order entitling the petitioner to the grant of probate or letters of administration until the valuation of the property is finalised and the fee mentioned in Article 11 of the First Schedule to the Court-fees Act is paid on such valuation. This raises the question as to what the Court has to do after it records the evidence and hears the arguments on behalf of the parties If. after recording the evidence and hearing the arguments, it passes an order giving its finding that the will has been proved to be genuine, would it amount to an 'order entitling the petitioner to the grant' of probate or letters of administration within the meaning of Section 19-1(1)OURT-FEES ACT, 1870^? If it docs so amount, what other kind of order can be passed by it withoirt contravening the prohibition in Section 19-1(1)OURT-FEES ACT, 1870^? If, without passing any such order, the Court, after recording the evidence and. hearing the arguments, merely directs the petitioner, orally or in writing, to pay the court-fee payable for the probate or letters of administration applied for, would that itself be indicative that the Court is inclined to hold that the will has been proved to be genuine and, if so, would it amount to an 'order entitling the petitioner to the grant' of probate of letters of administration within the prohibition in Section 19-1(1)OURT-FEES ACT, 1870^? In this context, it appears to us that Section 289 of the Indian Succession Act gives the dire. We have already set out the said section earlier. It consists of two parts, namely,-

(I)when it appears to the District Judge or District Delegate that probate of a will should be granted;

(II)he shall grant the same under the seal of his Court in the form set forth in Schedule VI.

(43) The language of the two parts seems to suggest that the section contemplates the passing of two orders, one under each of the aforesaid parts. The first part says:

(44) 'WHEN it appears to the District Judge'. These words seem to contemplate that the District Judge should record (obviously by an order) that it 'appears' to him (again obviously after hearing the arguments) that probate should be granted. In other words, the first order is one in which the District Judge or District Delegate, as the case may be, after recording the evidence and hearing the arguments, considers them and merely records a finding that the will has been proved to be genuine, and then states in the same order that by virtue of his finding it appears to him that probate or letters of administration should be granted to the petitioner. The second part says: 'he shall grant the same'

(45) These words seem to contemplate that the District Judge should pass a further order granting the probate or letters of administration. In other words, the second or further order is one in which he purports to grant the probate or the letters of administration under the seal of his Court in the form set forth in Schedule VI. The first of the aforesaid two orders merely states that it 'appears' to the District Judge that probate of the will should be granted. It would not, in our opinion, by itself purport or amount to the making of 'an order entitling the petitioner to the grant' of probate or letters of administration within the meaning of Section 19-1(1)OURT-FEES ACT, 1870^ of the Court- fees Act. If there be any doubt, it can be avoided by the Court staling expressly in its first order that the said order does not entitle the Petitioner to the grant of rebate or the letters of administration until he files in the Court a valuation of the property in the form set forth in the Third Schedule to the Court-lees Act and pays the Court-fee mentioned in Article 11 of the First Schedule to the said Act on such valuation. In the said order, the Court may fix some reasonable time for the petitioner to get the valuation finalised if it had not already been done, and pay the court-fee mentioned in Article 11 of the Court-fees Act on such valuation. On the petitioner paying the said court-fee, the Court would pass the second order granting the probate or the letters of administration under its seal in the form set forth in Schedule Vi to the Indian Succession Act. This, in our opinion, seems to be the proper view to be taken as regards the question as to the point of time or stage at which the court-fee under Article 11 of the Second Schedule to the Courtfees Act is to be paid. It serves three purposes. The first is that it does not insist on the petitioner paying the full court-fee along with his petition and thus exposing himself to the risk of losing the money in case his petition is not granted, as there is no provision in the Indian Succession Act for the refund of the court-fee in such a contingency, and the provision for refund in Section 13 of the Court-fees Act is either inapplicable or in any case limited in its scope. The second is that, without contravening the provision in Section 19-1(1)OURT-FEES ACT, 1870^ of the Court-fees Act it ensures the payment of the requisite court-fee by the petitioner before he gets an order entitling him to the grant of probate or letters of administration. The third is that it also satisfies the requirement in Section 4 of the Court-fees Act under which a document is not to be furnished unless the prescribed court-fee is paid.

(46) Coming now to the decisions, we may first refer to the decisions of the High Court of Patna.

(47) In Suraj Narain Gupta v. Sarosi Bala Devi and others : AIR1945Pat86 a single Judge of the said High Court, Meredith held-that the effect of the provisions in Section 19-1 and Entry No. 11 of Schedule 1 to the Court-fees Act, ''make the fee payable not upon the application but as a condition precedent to the grant of probate, and consequently the crucial time would be the time probate is granted'.

THElearned Judge observed that a contrary view taken in Nahapiel v. Secretary of State, A.T.R. 1924 Calc 987 was base on a reasoning which was unconvincing, and pointed out that the said decision was expressly dissented from by a single Judge of the Bombay High Court in Gaiigaram Tillockchand v. Chief Controlling Revenue Authority, A.I.R. 1927 Bom 643. The learned Judge added that the reasoning in the decision of the Bombay High Court was sound and cogent and he would adopt it, and pointed out that the said decision of the Bombay High Court was followed by the High Court of Allahabad in the case In the goods of William Beechey, : AIR1944All199 . It has to be noted that this decision of the High Court of Patna, while slating that the courtfee payable on the probate is separate and different from the fee payable upon the application for probate, held only that the time !ur the payment of the said court-fee is the time when probate is grained and did not slate more specifically what exactly the said time is. The decision is not thus contrary to the view taken by us.

(48) In Jagat Kishore Prasad Narain Singh v. Smt. Girja Kishori Devi. : AIR1945Pat361 , the same learned JuJdge, Meredith, J. followed his earlier decision and reiterated the same view.

(49) However, in Mundrika Prasad Singh v. Mst. Kachnar K.ucr and others, : AIR1955Pat362 (6), a Division Bench of the High Court of Patna, Rai and Banerji, JJ., took a contrary view. Banerji J., who spoke for the Court, observed firstly as under :-

'BROADLY,there arc four stages in a proceeding for grant of probate or letters of administration. The first stage is when an application is made for probate or letters of administration under S. 276, Indian Succession Act (Act 39 of 1925). At that time the court-fee to be paid on the application is according to Art. 1, Sch. 2, Court-fees Act. The second stage is the fixing of the valuation of the assets of the deceased. The third stage is reached when the hearing takes place and an order is made either granting or refusing to grant probate or letters of administration. The fourth, and the last stage, is the issue of the probate or letters of administration which is done by the oflice and is, more or less, a ministerial act.'

(50) It has to be noted that the above analysis and the statement of the four stages are in accord with the view expressed by us and there is no divergence to that extent. The learned Judge, however, observed next that 'the order which has to be. passed by the Court entitling the petitioner to the grant is a part of the hearing itself, and not divorced from it,' that 'no Court, can stav its hand after recording evidenee of both sides and declare that it would not pass any order until a particular contingency is fulfillled', that a 'hearing' does not mean only the recording of the depositions of the witnesses, the marking of documents as exhibited and listening to the arguments advanced by or on behalf of the parties', that 'it includes a decision of the Court on such evidence and arguments, and. to my (the learned Judge's) mind, the judgment embodying the order of the Court in such circumstances is nothing but a part of the hearing itself', and that 'it cannot be treated in this context as a separate stage from the hearing.' The learned judge continued to say that- thereforee, if sub-s.(1) of S. 19-1 is viewed from this aspect, then it is suggestive of the one and only construction that the court-fee payable on the valuation fixed by the Court is before the hearing of the proceeding.'

(51) Then, lifter considering some decisions. Bancrji, J., in dealing with a contrary view of Wali Ullah, J. of the Allahabad High Court in Ghandharp Singh v. Chameli Devi, : AIR1948All268 , observed that a division of the hearing and the finding in favor of the petitioner to obtain a grant into two distinct stages is undesirable, that there is no provision anywhere in Section 19-1 for making any conditional order, and that 'it would hardly be fair to demand the courtfee payable along or soon after the application or after the finding but before the issue of the probate or letters of administration according to the discretion of the Court which can never be expected to be uniform in practice.'

(52) With respect, we arc unable to agree with the above view of the Division Bench of the High Court of Patna. As pointed out by us, the Court, after recording the evidence and hearing the arguments, gives only a finding either that the propounded will has not been proved to be genuine or that it has proved to be genuine. In the former case, it dismisses the application for probate or letters of administrat ion and no further question arises. In the latter case, it adds to its finding that in view of the finding it appears to it that the probate or letters of administration should be granted, but that the said finding does not by itself entitle the petitioner to the grant of probate or letters of administration, and that he would be entitled to it only after the payment of the necessary court-fee within a reasonable period of time specified by it. If the court-fee is not paid, the Court dismisses the application, and if the court-fee is paid, it passes a second order granting the probate or letters of administration asked for. The actual, issuance of the probate or the letters of administration to the petitioner by the office is purely a consequential ministerial act. We arc unable to see any difficulty, factual or legal, in separating the first order from the second order. The first order as already stated, is a mere finding that the will has been proved to be genuine and by virtue of the said finding it apears to the Court that the probate or letters of administration should be granted to the petitioner. It docs not state that the petitioner is entitled to the grant of a probate or letters of administration. On the other hand. the order, as suggested by us, would also clearly state that it docs not entitle the petitioner to the grant of a probate or letters of administration, and that he would be so entitled only if the necessary court-fee is paid. We are, thereforee, unable to agree with the view expressed by the learned Judges. We may further point out that according to the learned Judge the court-fee payable on the valuation fixed is to be paid 'before the hearing of the proceeding'. Such a course would practically be in the same position as the payment of the court-fee along with the application for probate or letters of administration. As pointed out by us, the insistence upon the payment of the court-fee along with the application would be unfair to the petitioner inasmuch as he cannot get a refund of the amount in case the probate or letters of administration are not granted. The same would be the position if the court-fee is to be paid 'before the hearing of the proceeding'. This unfairness is avoided by the interpretation placed by us on Section 19-1 read with the other relevant provisions. This aspect docs not appear to have been brought to the notice of the learned Judges. For all these reasons, we are unable to agree with the view taken by the Division Bench of the High Court of Patna.

(53) We shall next consider the decisions of the High Court of Bombay. In Gangaram TiUock Chand v. Chief Controlling Revenue Authority (supra)(3), the question that arose for consideration was as to whether the amount of the duty on probate has to be calculated at the rate in force under the law as it stood at the date of the petition for probate, or whether it should be calculated at the higher rate of duty which came into operation before any grant of probate was made. The matter came lip initially before a learned single Judge, Crump, J., of the High Court of Bombay, and it was held that the fee is payable upon the grant of probate and not upon the application for probate, and that the law in force at the date of the grant is the law which must be applied in deciding the matters. The learned Judge referred to the decision in the case of Thaddeus Nahaniet v. Secretary of Stata (supra)(2), in which it was held that the petitioner was competent to comply with Section 19-1 at the time when he actually made the payment, and expressed his dissent from the said view. The learned Judge observed that he could no. say how the petitioner could be said to be competent to comply with a requirement of the section until the time when the obligation imposed by that section comes into effect, i.e., when the grant of probate comes to be made. The matter then went up in appeal to a Division Bench of the said High Court. Marten C.J. and Blackwell J. The Division Bench dismissed The appeal on another ground, and did not consider the aforesaid aspect arising under section 19-1 of the Court-fees Act. The view taken by Crump J., however, is quite in accord with the view taken by us.

(54) In the case of in re Jerbai K. Kapadia, A.I.R. 1945 Bom 8, a Division Bench of the High Court of Bombay, Stone C.J. and Chagla J. considered the scope of Section 19-1 of the Court-fees Act. The question involved therein was not the same as the question under consideration by us. However, the following observation in the judgment of Chagia J. may be noted:-

'THEREis no doubt that the charging section, as far as probate is concerned, is section 3, Court-fees Act; and what is charged is neither the application for probate nor the order entitling the petitioner to grant of probate but the probate itself. Section 19-1, Court-fees Act, provides that no order entitling the petitioner to the grant of probate shall be made unless two conditions are satisfied : first that the petitioner has filed in the Court a valuation of the property in the form set forth in sch. 3 and second that the Court is satisfied that the fee mentioned in Item Ii of Sch. I has been paid on such valuation. To my mind, S. 19-1, sets up a machinery for calculating the amount of Court-fee to be paid on the probate and also lays down the time when the court-fee is to be collected. The court-fee is to be collected at a point of time anterior lo the making of the order entitling the petitioner to the grant of probate. It will be noted that S. 19-1 does not indicate when exactly, prior to the making of the order, such payment is to be made. This lacuna in the statute is filled up by our High Court Rule 607 which provides that every application for probate shall be accompanied by a certificate of the Prothonotary and Senior Master that duty payable has been paid unless the Hon'ble the Chief Justice or the Judge hearing Testamentary Matters shall otherwise direct.'

Thus, the aforesaid decision was based upon the particular rule made by the Bombay High Court.

(55) We shall next refer to the decisions of the High Court of Allahabad. In the case of In the goods of Milliam Beechey (supra)(4). a Division Bench of the High Court of Allahabad held that the courtfee is payable at the time when letters of administration are issued. The judgment does not, however, mention clearly the exact point of time at which the court-fee is to be paid.

(56) In Ghandharp Singh's case (supra)(7), an appeal came up initially for hearing before a Division Bench consisting of Wali Ullah and Mathur. JJ. There was different of opinion, between the two learned judges. Wali Ullah, J. took the view 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'. The long standing practice in that Court referred to by the learned Judge was to pass a conditional order in the form :

(57) 'LET probate issue as prayed on court-fee being first paid.

'ITwill be seen that the first alternative mentioned by the learned Judge is quite in accord with the view taken by us. Mathur J., however, took a different view, namely, that the court-fee has to be paid 'before the order, i.e, before judgment.' The reason given by the learned Judge was that 'the exact time when the court fee has to be paid in compliance with the provisions of Section 19-1 has to be fixed by the Court', and 'the matter was entirely in the discretion of the presiding Officer', and that he did not think 'it is in the interest of the efficiency of the administration of justice that this Court (the High Court) should interfere with the discretion of the lower courts in appeal unless that discretion has been capriciously exercised'. Hardly any other reason was given by the learned Judge. In view of the said difference between the two judges, the matter came up before a third Judge, Harish Chandra, J., who agreed with the view of Mathur J. It has to be noted that the various aspects considered by us were not brought to the notice of and considered by either Mathur J. oi Harish Chandra, J. For the various reasons given by us, we consider that the first alternative suggested by Wali Ullah J. is the correct interpretion of Section 19-1 of the Court-fees Act.

(58) In Smt. Rajeshwari Misra and Another v. Markendeshwar Mahadeo Trust and Others, : AIR1965All211 (9), the property left by the deceased included money deposited by him in the Allahabad Bank on different occasions. The District Judge passed an order that the Allahabad Bank should remit to him a certain amount being the court-fee payable for the grant of letters of administration regarding the csiate of the deceased from out of the money deposited in that bank by the deceased. It was contended that the said order was an order under Section 19-1 of the Court-fees Act and as such was not appealable. A Division Bench of the Allahabad High Court, M. C. Desai, C.J. and R. N. Sharma, J' inter alia, held that Section 19-1 docs no9t authorise the marking of any order, that it only prohibits the grant of letters of administration so long as the petitioner has not filed valuation and has not paid the court-fees payable on such valuation, and that an order requiring the petitioner to pay the courtfee or an order requiring the bank which has custody of the money belonging to the deceased to remit it so that the court-fee may be paid out of it is not an order contemplated by Section 19-1 at all, and that it could not, thereforee, be said that no appeal lay from an order made under Section 19-1 of the Act. The decision has obviously no bearing on the question under consideration by us.

(59) Two decisions of the high Court of Calcutta have to be considered. The firs. is in the goods or Mrs. Lilian Singh, : AIR1943Cal19 . in that case, a single Judge of uat High Court, Sen J., held that Section 19-1 states only that the Court shall not grant probate until the fees are paid, that it does not say that ihe Court shall not try an application for probate or letters of administration until the Ices arc paid or that the paymen of the fees is a condinon precedent to the making of the application, and that there was, thereforee, a properly constituted application for letters of administration bcfore the Court. In other words, according to the said decision, the courtfee for the probate or the letters of administration need not be paid along with the application thereforee. This is also the view taken by us.

(60) In in the goods of Durga Charan Miter deceased : [1959]36ITR1(Cal) (11), while dealing with a question with which we are not concerned, a single Judge of the said High Court, R. S. Bachawat, J' observed that Section 19-1 of the Court-fees Act makes payment of the court-fees mentioned in Item No. Ii of the First Schedule to the Court-fees Act a condition precedent to the making of an order for the grant of representation. The decision does not state when exactly the condition precedent is to be satisfied. The learned counsel cannot, thereforee, derive any assistance from this decision as regards the question under consideration by us.

(61) In Pritish Kumar Mitra v. Prosanto Kumar Mitra and Another, : AIR1970Cal236 (12), a Division Bench of the Calcutta High Court, Arnresh Roy and S. N. Bagchi, JJ., dissented from the view of the Division Bench of the High Court of Patna in Mundrika Prasad Singh's case (supra) (6), and held as under :-

'........when an application for probate of letters of Administration 's made to any court ad valorem court fee on the value of the assets of the estate of the testator, be it according to the valuation put in the Affidavit of Assets or be it the valuation fixed by the Collector or finally decided by the Court under Sec. 19-H, is not payable until the Court has proceeded with the hearing of the application by taking evidence affording opportunity to the propounder to prove the will and also his right to an order entitling him to the grant of Probate or letters of Administration. Only when the Court has arrived at a decision that the propounder is entitled to the grant ofProbate or Letters of Administration, then only, but before, the order entitling the petitioner to the grant of Probate or Letters of Administration is made the court-fees mentioned in Article 11 of the First Schedule of the Court-fees Act need be paid upon the valuation found by the Court imdcr See. 19-H.'

These observations are quite in accord with the view taken by us.

(62) A single Judge of the High Court of Punjab, Kapur, J., held in Mrs. Susheela Dantvagi v. The State and Others, I.L.R. 1956 Pun 1956, as under :-.

'ASI read the section (19-1) it requires that before an order is made issuing die probate which certainly cannot be made if the petiron is dismissed and can only be made after a Judge decides in favor of the will, the probate duty is required to be paid by a petitioner. I would, thereforee, order in this case that it is not necessary for the petitioner to pay the court-fee at this stage, but it may be paid after the trial, after it is decided that the will is genuine and the propoun.der is entitled to the probate and before order for issue of the probate is made.'

This decision also supports our view.

(63) In the matter of the Estate of C. Govindaswamy, (1937) Ii M. L.J. 899, a single of the High Court of Madras, Venkatasubba Rao J., in dealing with a question as to whether an order can be made granting probate to a petitioner in forma pauperis before payment by him of the succession duty (court-fee), observed that Section 19-1 of the Court-fees Act enacts that the succession duty (court-fee) should be paid before, and not after, the order granting probate, that the said section was inserted by Act Xi of 1890, which amended the Court-fees Act, that duty (court-fee) was being collected, not on the applications for, but on the grants of probate or letters of administration, that in certain cases, it was found that persons were satisfied with merely obtaining an order on their petitions, without actually taking out probate or letters of administration, that it was with a view to guard against this evasion that Section 19-1 was inserted, and that the section thus prescribed as to when the court-fee was to be paid and not by whom. Through the said observations were in the context of a different question, they point out the object with which section 19-1 was inserted in the Court-fees Act by Act Xi of 1890. As pointed out earlier, the view taken by us safegaurds against the evasion of the payment of court-fee, and gives effect fully to the ob ject in enacting Section 19-1.

(64) In P. K. Mundan v. State, A.I.R. 1954 TC 520, a Full Bench of the High Court of Travancore-Cochin, Koshi CJ., Govinda Pillai, and Menon JJ., dealing with corresponding provisions in the Cochin Court-fees Act, held as under:-

'THUS,the schedule provides for fee on probate or letters of administration and not for an application for a grant of probate or letters of administration. It is unnecessary to pay court-fee, required for the probate, along with the application. The section itself says that the fee can be paid on a later date but, the only obligatory condition of the Court was that no order was to be passed before the fee was paid. Thus, the fee does not include the fee on the application for the probate and so, it necessarily follows that the fee is to be paid on the probate and that the same is to be governed by the provisions of the law in force at the time the order for the issue of the probate is passed.'

(65) This decision also supports our view to the extent that the courtfee is not payable along with the application for probate or letters of administration.

(66) No other decision of any of the High Courts has been brought to our notice. For the foregoing reasons, we answer the question under reference as follows:-

(I)When a petition for grant of probate or letters of administration under Section 276(1) of the Indian Succession Act is made, the court-fee payable thereon is. the fixed court-fee prescribed in Article 1 of Schedule It to the court-fees Act.

(II)The Court-fee payable on the probate or letters of administration as prescribed in Article 11 of Schedule 1 to the Court-fees Act need not be paid along with the application.

(III)the petitioner has to state in the petion, inter alia, the amount of assete which are likely to come to his hands as required by Section 276(1)(d) and (3) of the Indian Succession Act. He has further to file in Court, eiE ther along with the application or at a later stage, a valuation of the property in the form set forth in the Third Schedule to the Court-fees Act as required by Section 19-1(i)OURT-FEES ACT, 1870^ of the said Act. The said valuation has to be verified by the Collector and, if necessary, the Court, has to determine the vaiuation on a. metion by the Collector as provided in Section 19-H of the Court-fees Act. This proceeding regarding the valuation may take place simultaneously with the proceedings in the Court for the grant of probate or letters of administration.

(IV)If, after the Court records evidence and hears arguments on behalf of the parties in the proceedings for the grant of probate or letters of administration, it has to pass an order giving its finding as to whether the propounded will has been proved to be genuine or not. If it finds that the will has not been proved to be genuine, it dismisses the application for probate or letters of administration. If, on the other hand, it finds that the will has been proved to be genuine, it lias to state in the same order that by virtue of its finding it appears to it that probate or letters of administration should be granted to the petitioner, that its finding or order does not entitle the petitioner to the grant of probate or letters of administration until he files in the Court a valuation of the property in the form set forth in the Third Schedule to the Court-fees Act and pays the court-fees mentioned in Article 11 of the First Schedule to the said Act on such valuation. In the said order, the Court may fix some reasonable time for the petitioner to get the valuation finalised if it has not been done already and pay the court-fee mentioned in Article 11 of the First Schedule to the Court-fees Act on such valuation.

(V)If the petitioner does not pay the court-fee, the Court has to pass a further order dismissing the petition for probate or letters of administration. On the other hand, if the petitioner pays the court-fee to the satisfaction of the Court the Court has to pass a further order granting the probate or the letters of administration under its seal in the form set forth in Schedule Vi to the Indian Succession Act. The actual issuance of the probate with the seal of the Court is a ministerial act to be performed by the Office of the Court in pursuance of the order of the Court granting the probate or letters of Administration.


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