1. In this appeal against the order of the District Judge, Jaipur City granting probate application filed on behalf of one Suwa Lal, a preliminary objection has been raised by the learned counsel for the respondent that ad valorem court-fees should have been paid in the memorandum of appeal by the appellant as provided in Article 1, Schedule 1, Court-fees Act.
2. One Prahlad died on 28-10-1946 and before his death he had made a will on 22-10-1946 in favour of Suwalal respondent bequeathing him one house in Jaipur City. Mt. Bhonri the appellant lodged the caveat against the grant of probate and thereafter the proceedings became contentious.
3. After framing issues and recording evidence the learned District Judge granted a probate to the respondent. Mst. Bhonri has preferred this appeal challenging the order of the learned District Judge.
4. A preliminary objection has been raised by the counsel for the respondent that the memorandum of appeal being against a decree, the court-fees payable thereon should be under Article 1, Schedule 1, Court-fees Act and ad valorem court-fees should be paid.
5. On behalf of the appellant it is urged that the court-fees that are payable in such a case should be as provided under Article 11 of Schedule II, Court-fees Act as the judgment of the learned District Judge is not a decree or order having the force of decree. He has further argued that even if the judgment of the learned District Judge be construed as a decree, fixed court-fee of Rs. 10/- under Article 17 (vi) of Schedule II, Court-fees Act is leviable.
6. In order to determine what is the proper court-fee payable in this case, it is necessary to examine the nature of the proceedings before the learned District, Judge. After the appellant has lodged the caveat the proceedings have become contentious. Under Section 295, Indian Succession Act, it is provided that in any case in which there is a contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
From the very language of the section it is apparent that even after the proceedings have become contentious they are merely to assume the form of a regular suit though in reality the proceedings are not in the nature of a regular suit under the provisions of Code of Civil Procedure, 1908. The proceedings do not originate as a suit under the provisions of the Code of Civil Procedure.
Under Section 295, it is not provided that such proceedings become regular suit under the Civil Procedure Code. Under Section 26, Civil P. C., 1908, every suit shall be instituted by the presentation of a plaint or in any such other manner as may be prescribed. Order IV Rule 1 of the Code prescribes to whom the plaint is to be presented and what should it contain.
7. At this stage it is worthwhile to consider Section 268, Indian Succession Act. Section 268, Indian Succession Act runs as follows:
'The proceedings of the Court of District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.'
This provision is analogous to Section 141, Civil P. C., which provides that the procedure contained in the Code in regard to suits is to be followed in all proceedings in any court of civil jurisdiction. In respect of Section 268, it cannot be said that the proceedings in the probate proceedings even after they had become contentious, become proceedings in a suit.
Similar provisions in Sections 18, 19(2) and 5, Provincial Insolvency Act were considered by the Calcutta High Court in the case of -- 'Madan Lal Jhunjhunwala v. Reza Ali Khan', 1940 Cal 244 (AIR V 27) (A). Therein it has been observed as follows:
'The expression 'suit' has not been defined in the Code. By Section 26, Civil P. C., every suit is to be instituted by the presentation of a plaint or in such other manner as may be prescribed. Excepting the presentation of a plaint, no other mode of instituting suits has yet been prescribed. A proceeding that does not commence with a plaint is therefore not a suit.'
What has been said about Section 268 is equally true of Section 295. The language of Section 295 is not precise enough to convert the proceedings before the learned District Judge into the proceedings in a regular suit. The legislature has used the words 'shall take the form of a regular suit'. That suggests that the proceedings are regular suit in form only and not in substance. They retain their own character.
Section 299, Indian Succession Act further supports this view. Under that section every order including the order passed at the final stage granting the probate made by the District Judge shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure of 1908 applicable to appeals. Even for the final judgment granting the probate the word that has been used is 'order'.
In this view of the matter, the proceedingseven if they had become contentious, did not become proceedings in the suit, and unless there isa suit as provided under the Civil Procedure Code,there can be no decree, except in cases of certainorders which are expressly included in the definition of decree. Section 2 (2) defines the decree is follows:
' 'Decree' means the formal expression of an adjudication which, so far as regards the court expressing it', conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit ............'
Their Lordships of the Privy Council in the case of -- 'Minakshi Naidu v. Subramanya Sastri', 11 Mad 26 (B), after quoting the definition of the decree as contained in the Act X of 1877 and as modified by Act XII of 1879, have observed as follows in regard to the proceedings taken under Section 10 of the Pagoda Act:
' 'Decree' means 'a formal expression of an adjudication upon any right, claim, or defence, set up in a Civil Court where such adjudication decides the suit or the appeal.' In the opinion of their Lordships there was no civil suit respecting the appointment, and it would be impossible to bring an order made by the District Judge pursuant to Section 10 of the Pagoda Act within the definition of a decree as contained in the Code, and no other general law has been suggested.'
It is apparent from the above observations that unless there is a civil suit, there is no decree under the Civil Procedure Code.
8. Several authorities have been cited at the Bar and the following three cases may be taken notice of:
1. Miss Eva Mountstephens v. Hunter Garnet Orme, 35 All 448 (C).
2. J. M. Rodrigues v. A. M, Mathias, 9 Ind Cas 538 (Mad) (D).
3. Subhan Khan v. Mohamed Eusoof, 1938 Rang 141 (AIR V 25) (E).
9. The first case was more or less decided following the practice in the Allahabad High Court. It was observed in that case:
'In so far as the practice of this court is concerned appeals from decisions of a single Judge of this Court under the Probate and Administration Act have been treated as appeals from decrees, whatever may have been the practice in respect to appeals in similar cases from the decisions of the District Judge.'
That case followed the decision of the Allahabad High Court in -- 'Umrao Chand v. Bindraban Chand', 17 All 475 (F), and the point involved in that case was not that of court-fees but of Section 10, of the Letters Patent of the High Court of Judicature for the North Western Frontier Province. This case has been dissented from in the case of '1938 Rang 141 (AIR V 25) (F)', by a single Judge of the Rangoon High Court and I am in respectful agreement with the Rangoon case for the reasons that I have already discussed. There is yet another reason assigned in that judgment as contained in the following observations which lead to the same conclusion:
'If this construction is wrong but that of the Allahabad High Court is correct what it will mean is this: A person can apply for letters of administration or probate of a will on payment of a court-fee of 'Rs. 2/- but if he wants to appeal from an order refusing or granting letters or probate he must pay a court-fee of Rs. 10/-.
This means denying justice to poor litigants. I do not think that this could have been the intention of the Legislature when they enacted Article 17 (vi) of Schedule II. This article, in my opinion, applies only to properly constituted suits; i.e., proceedings commenced by plaints, such as a suit instituted under Section 92, C. P. C.'
The case in -- 'J. M. Rodrigues v. A. M. Mathias', (D), is that of Madras High Court. The contention that Article 11 of Schedule II, Court-fees Act should apply to such a case, was rejected by their Lordships by simply observing that the order appealed against undoubtedly had the force of a decree. This is stating the law as too wide in view of the definition of 'decree' and is contrary to the pronouncement of their Lordships of the Privy Council in the case of -- 'Meenakshi Naidoo v. Subramaniya Sastri', (B), referred to above.
I do not agree with that statement of law. Ineed not in that view of the matter discuss the,other point that on the supposition that the judgment of the learned District Judge is a decreewhether Article 1, Schedule I, or Article 17, Schedule II shouldapply. But I am inclined to think that Article 17(vi), Schedule II should apply. The appellant haspaid the full court-fees as required under Article 11,Schedule II and I decide the preliminary point raisedby the respondent against him. The case may befixed for hearing on merits.